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CARPE LIBRUM: Getting to know each justice of The Burger Court in ‘The Brethren’

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What “The Brethren” does so well is show us the inner working of the U.S. Supreme Court and the personal interplay between the justices.

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Wilmington’s literary community keeps gaining accolades (two National Book Awards nominees in 2015) and attention in the press. With multiple established publishers in the state (Algonquin, Blair) and new smaller presses gaining traction (Eno, Bull City), it is timely to shine a light on discussions around literature, publishing and the importance of communicating a truthful story in our present world.

Welcome to Carpe Librum, encore’s biweekly book column, wherein I will dissect a current title with an old book—because literature does not exist in a vacuum but emerges to participate in a larger, cultural conversation. I will feature many NC writers; however, the hope is to place the discussion in a larger context and therefore examine works around the world.

The BrethrenThe Brethren
Bob Woodward and Scott Armstrong
Simon and Schuster, 1979, pgs. 467

“The Brethren” by  Bob Woodward and Scott Armstrong looks at “The Burger Court,” or The Supreme Court of the United States of America in the 1970s when Warren E. Burger was chief justice. It seems a fitting book to revisit now for a variety of reasons; mainly, it’s the court to decide Roe v. Wade, the case primarily cited as the precedent for abortion access in the United States today. When Woodward and Armstrong were working on the book, the U.S. Supreme Court had yet to be infiltrated by women. The first woman to serve, Justice Sandra Day O’Connor, was appointed to the Supreme Court in 1981 by President Ronald Reagan. So at the time of writing the book, the court was all male and largely white. Thurgood Marshall, who argued Brown V. The Board of Education before SCOTUS, was the first African-American appointed to the Supreme Court, and he is in the midst of his term during this book.

The Burger Court came at an awkward time in American history (though, really, isn’t every age awkward?). The Warren Court, which preceded Justice Burger, oversaw many landmark civil rights cases of the 1960s. So by contrast the Burger Court doesn’t hold quite the same mystique. But they wrestled with censorship, women’s right to the privacy and sanctity over their bodies, and executive privilege. In addition to addressing obscenity, they also ruled that The Washington Post could publish the Pentagon papers. That decision and their unanimous ruling regarding President Nixon’s claim of executive privilege in his conferences with his advisors, which they ruled against, led to Nixon’s resignation. Bob Woodward’s reporting on the Watergate scandal for The Washington Post would make this iteration of SCOTUS of interest to him.

For us the precedents decided by the Burger Court are going to be the focus of questions coming before the current court. Obviously, there is an attempt right now to put abortion access back in front of the Supreme Court. In addition, we are certainly looking at questions of executive privilege between the president and his staff:

What is the concern of the American people and what is not?

What is admissible evidence in a potential impeachment proceeding?

What do the American people have the right to know?

Perhaps more importantly, how are we defining obscenity and what is our relationship with censorship moving forward? The Burger Court handed down that decision before our daily lives revolved around these little screens that track our every move, and record what we read, see and how we communicate our thoughts. All three of these issues are pressing and current in our society.
I think part of my interest in history is it is a settled matter. I enjoy studying the ‘60s and ‘70s in America because of the advances made in civil rights, environmental awareness and the arts.

Retrospectively, all are matters of statement, not something terribly uncertain and painful that I have to live through. So it is my own failing: It is easier for me to engage in the past, which is safer and more secure than the present—which by definition is not definite, safe nor secure. It is the same past that has laid the groundwork for how we got here today and for questions we are addressing.

What “The Brethren” does so well is show us the inner working of the U.S. Supreme Court and personal interplay between the justices. Which cases get shoes and why? Who writes opinions and dissents and why? How are those document crafted? How did nine men’s relationships shape the situation we are in now?

Woodward and Armstrong write a compelling book that is humorous and deeply personal. Readers feel like they know and have spent time with each of the justices. I was startled at the image of Justice Marshall’s dry, witty sense of humor. By contrast Burger seemed more removed than expected.

Douglas endeared himself to me endlessly with his passionate devotion to outdoors life. Oddly, it was Potter Stewart whom I empathized and connected with most. He reminds me a little of General Henry Morgan from “M*A*S*H.” His stance on censorship surprised many, myself included, and remains an important and quiet moment in our modern development as a nation.

Right now, I am personally filled with twin struggles of desperately wanting to engage, fight, participate, and simultaneously hide in bed under the quilts. But understanding how we got here is a pretty important step in addressing the threats. It is not just the sweeping overturning of Roe v. Wade that should worry Americans, it is the small chipping away at it through legislation and courts. We need to pay attention.

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