Justice on Parade

UPTON SINCLAIR was a muckraker when it was a proud title. At some point in this century muckraker lost its prestige and became synonymous with troublemakers, often reporters, who looked for dirt where little existed. But the Sinclair tradition carried on with reporters like Edward R. Murrow using the television camera to expose evil in a more sophisticated America.

By the 1970s, an age of specialization, reporters like Murrow had metamorphosed into "investigative journalists" like Bob Woodward and Carl Bernstein, the enterprising Washington Post reporters who cracked the smilingly slick evil of Richard Nixon. They continued the tradition, and if they didn't have Sinclair's poetic ability, drive and something of his anger, they were heroes of a sort to a shocked America.

With 70 years of tradition, a $350,000 advance, and the Watergate investigation behind them, one expected a lot of Woodward and sidekick Scott Armstrong when they tackled the Supreme Court. One expected more than-one got.

The Brethren captures senility and records cunning. But it finds no evil, only simpering and stupidity. It is an uneasy break with the Sinclairs, the Murrows, indeed the Woodwards of the past.

Take the portrait of Warren Burger that emerges from the "eight file drawers with thousands of pages of documents" and the interviews with "more than 200 people." Burger certainly looks like a chief justice, all white hair and crags, but he is a small man, venally self-centered instead of expansive, narrow-minded instead of broad. These are traits endemic to our race, and not sins, not breaches of conduct, not even very surprising. The worst the authors catch Burger doing is bending a few of the unwritten procedural codes of the court to satisfy his slight meglamania. There is a fascinating three-page description of Burger's tour of the Court facilities on his assumption of office:

Burger pointed to the Justices' nine high-backed leather chairs. Each justice chose his own, and the sizes and styles varied. Some were nearly a foot taller than others. Douglas's was tufted, the otherws were smooth. It looked unseemly, disorderly, Burger said. In the future, only one kind of chair would be available.

This is good stuff, David Halberstam would say, And it is; interesting, enlightening, but at root trivial.

Woodward and Armstrong's caricature of William O. Douglas is another example. They describe his return to the Court:

His clerks loaded up ten carts and off they went, Douglas leading the procession in wheelchair, his secretary pushing and spraying Lysol on the wheels to mask the odor from the bag for his incontinence...The unpleasant odor filled the room.

Douglas, cantankerous but noble, wished to stay on the court until a liberal justice could replace him, but he recognized his ill health and retired, less than a week after the conference the authors describe. Douglas knew when his time was up, and if an aged hero tried to stretch his usefulness a few months, so what? Do we need to know that he stank in the process?

Many have already criticized the book's documentation. Woodward, however, proved his reliability during Watergate, when a few mistakes on his part could have saved Nixon. Now he cashes in the chips, and it seem reasonable to believe that the "eight file drawers" of documents and "more than 200" sources really add up to what he reports. All the relevations are believable, even predictable, but why print them? Justice Potter Stewart said in a 1964 decision that he could not define pornography. "But I know it when I see it," his decision concludes. Since the Constitution does little to outline how much flesh is protected by the first amendment, and since the Court history on the issue has been a hodge-podge of fairly feeble arguments--from "utterly without redeeming social value" to the more recent "community standards" test--it is obvious that pornography has always been what the individual Supreme Court justices decide it is. It is little more than embarassing, then, to reveal that Justice Brennan cast his vote using the "limp dick standard" or that "for White, no erections and no insertions equaled no obscenity." The Post's crosstown rival, The Washington Star, has long boasted of its breathless gossip column, The Ear. Woodward and Armstrong supply some strong hardbound competition in parts of their book.

THE REASON SO MUCH OF The Brethren reads like a $13.95 edition of People Magazine is that the authors approached a potentially important project like autograph hounds at a Broadway opening, scrambling from the curb to the lobby in a frantic attempt to collect anything possibly significant. During a pre-Christmas Harvard appearance, the authors said a journalist's job was simply to find out and print whatever he could. "And let the chips fall where they may?" one questioner demanded. "Yeah," Woodward answered, leaning back in his chair. "You can't as a journalist sit there and say what are the effects of this going to be?"' he continued. Earlier, in a mid-morning press conference, he was asked how the court could improve. "Someone else asked me that question, and I didn't have an answer. We didn't tend to think on that level. We tended not to be philosophical."

This journalistic ethic, the "if it's there we print it" attitude that Woodward crows so feistily, is mere bravado. In the first place, the book could conceivably hurt the court's ability to enforce its will in some important cases. Although the authors are quick to point out that they stayed away from "contemporaneous" cases, clearly the reasoning used in reaching one busing decision might affect the next such case, and it takes very little to fan the flames of anti-busing sentiment in this country. To let the chips always fall where they may probably won't hurt in this case because the book's revelations are so mild. But a reporter has a responsibility to consider the implications of his story.

The blinder-than-justice approach to their work also raises serious questions about the contents of the book. Once Woodward and Armstrong picked their target, how did they decide what to include in the book? Their unwillingness to separate the important from the titillating shows the trouble blind writing can cause. If Woodward and Armstrong spent two years studying this court, how could they not emerge with a few ideas on how it could be improved? But if they truly had no aim, then it is little wonder they ended up with 460-odd pages of whipped cream.

It is hard to contend that reporters should behave simply as vacuums, Hoovering about the halls of power after random crumbs. A story without a focus--be it the filth of the meatpacking industry, the sinister evil of Joe McCarthy, the links between political espionage and government officials--does not deserve to be called reporting. It is repeating what others have told, even if what they have said is pointless or silly. At best it is crude history ("History on the run," Woodward called it during his Harvard appearance), but historians too usually look for a way to focus their work, to prove a point, to establish a theory.

Most likely, Woodward and Armstrong don't mean everything they say about journalistic blindness. Perhaps they faced a more immediate problem--under contract to write a book, they produced it, realizing that it really contained little in the way of significant revelations. It is easy to praise them for their legwork and interviewing skill, easy to praise their book as interesting, readable and as good an account as exists of the way the Supreme Court operates.

IT IS HARDER to praise the book as a masterpiece of investigative journalism. The Brethren never reaches any bottom line--it gossips rather than exposes. This book will not reform the court, perhaps because it doesn't need to be reformed. The book is certainly a detailed account, but it is not investigative reporting in the Murrow or Bernstein or Woodward tradition. It is not Upton Sinclair muckraking--in fact, it veers close to the type of muckraking that made the word unstylish. It is truly "Inside the Supreme Court," as the jacket cover boasts. But 468 pages later, the boast sounds pretty empty.