AMERICA'S COURT: THE SUPREME COURT AND THE PEOPLE by Barrett McGurn. Golden, Colorado: Fulcrum Publishing. 194 Pages. Cloth $27.95. ISBN: 1-55591-263-x.

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. Email: POL140@ukcc.uky.edu.
 

AMERICA'S COURT is a modest memoir-like description of the U.S. Supreme Court during Warren E. Burger's years as Chief Justice (1969-1986). Barrett McGurn was the Supreme Court's first Public Information Officer (PIO) from 1973 to 1982. Burger described him as "a fallen away newsman" when he introduced McGurn to his former peers. The new PIO had been a career reporter, previously heading several major European bureaus for the NEW YORK HERALD TRIBUNE. McGurn retired in 1982 and now he writes appreciatively about the nation's highest court. Unfortunately for the professional reader, the book is non-thematic and haphazardly organized.

McGurn clearly admires the late Chief Justice and he is the book's central figure. Despite his long service as a journalist, McGurn discusses approvingly Burger's firm stand against televising the Court's sessions and his arms-length relationship with the media. The Chief Justice's stance rested upon his belief in the dignity of the Court and his experience that reporters did not understand the role of the law in determining judges' decisions. Burger felt that reporters often misrepresented what judges said or did.

McGurn's admiration of Burger is also manifested when he talks about several of the Chief Justice's successful innovations that made the Court more efficient and friendly, such as altering the courtroom bench so the justices could see one another, trimming oral arguments to half an hour per side, shifting part of the conference to Wednesday afternoon, and including the Reporter's syllabi with the release of decisions. He also notes the Chief's establishment of the Judicial Fellows program that has brought numerous political scientists and law professors inside the Marble Temple for a year. The author pays attention to Burger's administrative duties, especially in meeting unusual challenges like equitably handling the tremendous demand for tickets to the oral argument in U.S. V. NIXON (1974).

The other thirteen justices (there were five turnovers during this period) are described largely through their relationships with Burger. For example, we are told that the Chief never felt at ease with Potter Stewart, but got along famously with Byron White who, like Burger, was a former school athlete. McGurn goes on to cover the Court's inner workings at some length, but little is said that we do not already know.

The anecdotes and stories about the Court, its members and its staff that permeate AMERICA'S COURT make interesting reading. McGurn gives a human side to the Court that is too often missing from textbooks. Those who teach an undergraduate course on the Supreme Court or a more general judicial process course can enliven their lectures a bit by running through McGurn's book before the semester begins. There's the story of Burger's pointed reprimand to a lawyer during oral argument for submitting an unusually wordy brief, and another of the Chief's lowering his shoulder football style and crashing into a TV camera crew that had chased him into a Court elevator. Potter Stewart's retirement is said to have been triggered by a letter from a high school junior in St. Cloud, MN, asking why he had not retired now that he was eligible to do so. The Los Angeles Police Department, we are told, asked the Court to give it advance notice as to what day the BAKKE decision would be released so that it could have officers ready with riot gear. Interestingly, the department did not want to know who would win; it believed that big demonstrations would occur regardless of the outcome.

There are a few modest nuggets for the scholar. McGurn describes Burger's approach to opinion writing as "his basic instincts first, then a careful rephrasing in a final draft" (53), thus lending some support to those subscribing to the attitudinal model of judicial decision-making. Another passage gives sustenance to the strategic behavior model by noting that Justice Brennan often acted on what McGurn terms "the Rule of Five, his willingness to concede points" (103) in order to get five votes on the basic question at issue. McGurn also asserts, contrary to Woodward and Armstrong's account in THE BRETHREN (1979), that Burger did in fact write the NIXON tapes case opinion himself; the other justices, he says, added only "manicuring" (16). In the main, however, there is little in AMERICA'S COURT that bears even indirectly on social science theories that attempt to explain how justices vote, how they interact, or how the Court's decisions affect the country. Nor is there much here that would help the historian understand the Court's past.

A large number of needless errors mar McGurn's work. A few are amazingly wrong; we are told, for example, that 1978 was a presidential election year (107) and that the Treaty of Versailles ended World War II (50). McGurn wrongly believes that the Chief Justice is near the top of the succession list in case of a presidential vacancy (87, 107). There is some journalistic hyperbole: Justice Douglas "narrowly missed" becoming president in the 1940s (100), Justice Black was "a stout defender of states' rights" (135), and Justice Fortas left the Court as a result of the Republican filibuster against his nomination to be Chief Justice (179).

Somewhat surprisingly, McGurn does not seem to understand the basis of some major Court decisions (thus ironically confirming his old boss's belief that those in the media do not understand what the Court does). He indicates that ROE V. WADE (1973) is based upon the Constitution's privileges and immunities clause and he ignores the freedom of press arguments that were the central issue in ZURCHER V. STANFORD DAILY (1978).

A bottom line verdict: AMERICA'S COURT is not necessary for your professional library, but should be available in your college or university library.
 

ROE V. WADE, 410 U.S. 113 (1973).

UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978).

U.S. v. NIXON, 418 U.S. 683 (1974).

Woodward, Bob and Scott Armstrong, THE BRETHREN: INSIDE THE SUPREME COURT (New York: Simon and Schuster, 1979).

ZURCHER V. STANFORD DAILY, 436 U.S. 547 (1978).