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WRITER UNBLOCKED The long-awaited authorized biography of the late Justice William Brennan Jr. is back on track.Biographer Stephen Wermiel, associate professor at American University’s Washington College of Law, said last week he has recruited a collaborator and co-author to help “jump-start” the completion of the work, which he began in 1986 while Brennan was still on the Court. Wermiel covered the Court for The Wall Street Journal at the time. “I’m excited about it,” said Wermiel, 56. “It will be fun to actually be able to share the experience with someone.” The new co-author is Seth Stern, 31, a reporter for Congressional Quarterly who covers the House and Senate Judiciary committees and is a 2001 Harvard Law School graduate. Stern will keep his day job but is plowing through reams of Brennan material on nights and weekends. “It certainly is daunting, with his three-plus decades on the Court,” says Stern. “There is a good chunk of work to do. . . . It will be done.” The news of the collaboration dissipates, for now, a cloud that has hung over the project. Brennan, who retired from the Court in 1990 and died in 1997, picked Wermiel as his biographer and had hopes of reading the book in his lifetime. Brennan’s son William Brennan III, who died in 2004, was openly critical of Wermiel’s delay. In a stinging New Yorker essay that quoted Brennan III before he died, legal writer Jeffrey Toobin said Wermiel was guilty of “dawdling” and lumped Wermiel together with Gerald Gunther and Andrew Kaufman, whose biographies of Learned Hand and Benjamin Cardozo, respectively, took more than 20 years to complete. Researchers also expressed concern about the delay because Wermiel had been given exclusive access to sought-after portions of Brennan’s Court papers, including his correspondence and his notoriously detailed case histories from the final years of his 34-year tenure. (Coincidentally, the online magazine Slate last week published a series of Brennan memos that had been obtained by author Jim Newton in the course of researching his new biography of the late Chief Justice Earl Warren. Newton said in an interview that before William Brennan III died, he had authorized Newton’s access to the documents at the Library of Congress.) Wermiel acknowledges the criticism of his delay but says he had never contemplated abandoning the project. “I have always been committed to wanting to get the book done,” he says. A combination of factors — the complexity of the subject, the huge volume of material on Brennan, as well as the demands of academia and raising a family — caused Wermiel to set aside the project after writing about 150 pages of what he had envisioned as an 800-page book. Recently, Wermiel says, “I began to realize there was enough writing on the wall that said I was not going to get it done by myself.” He searched for a collaborator and friends recommended Stern. The two met, Stern asked “some incredibly good questions,” and they worked out an agreement whereby Stern will be a “full-fledged co-author.” [Note: Stern has written book reviews for Legal Times.] The two have not yet secured a publisher for the book. Wermiel says he has already seen that Stern brings a “fresh perspective to how to go at it,” which will result in a book “now aimed at a new generation, though not exclusively.” That is likely also to mean a substantially shorter book, says Wermiel — closer to 500 pages, he guesses. Sections on Brennan’s New Jersey upbringing, for example, might shrink. Stern agrees that he brings a new “generational” approach to the project. Stern says he recently realized he was a fifth-grader when Wermiel began working on the book. Wermiel estimates that completion is at least two years off. Brennan’s grandson William Brennan IV, a partner at Pepper Hamilton in Philadelphia, says he and other family members view Wermiel’s partnership as a “positive” development. “Obviously we would like to see it come out,” says Brennan IV, who adds, “I wouldn’t say I had the same level of disappointment [about the delay] that my father had.”
EL NIÑO Speaking of Supreme Court biographies, another one is in the works, this one about Antonin Scalia, easily one of the most colorful and interesting justices on the Court. Joan Biskupic, USA Today‘s Court correspondent and author of a 2005 biography of former Justice Sandra Day O’Connor, has signed up with Farrar, Straus & Giroux to write the Scalia book. Biskupic expects she will look at Scalia through “more of a political lens” than she did with the O’Connor book, focusing on his years as an executive branch official and appeals judge during the Nixon, Ford, and Reagan administrations. “I am interested in the Reagan counterrevolution, Scalia’s place in the movement, and his legal importance beyond the bench to that political sphere,” she says. Biskupic stresses it will not be an authorized or official biography, though she adds that Scalia is aware of the project and told her that if anyone asks him, he will say it is OK to talk with her. She notes that Scalia gave her an interview for the O’Connor book, which was recently published in paperback. The Scalia book, which does not yet have a working title, will probably be published in two or three years, Biskupic estimates.
SMUGGLER’S COVE Sidley Austin’s D.C. managing partner, Carter Phillips, does not seem like the swashbuckling, rum-running type. But in a Supreme Court ruling Jan. 10, his friend and former adversary, Chief Justice John Roberts Jr., accused Phillips of smuggling — though not by name. It was not smuggling of the illegal type, but rather the disfavored practice of sneaking new issues into a case after the Court has granted review. “We are typically reluctant to permit parties to smuggle additional questions into a case before us after the grant of certiorari,” sniffed Roberts in Norfolk Southern Railway Co. v. Sorrell. Roberts made it clear he was talking about Norfolk, which was represented, as it has been for years, by veteran advocate Phillips. The technical question the Court granted review on, Roberts said, was whether, under the Federal Employers Liability Act, the causation standard should be the same in cases alleging railroad negligence as it is in cases of contributory negligence by the employee. Roberts says that after the Court granted cert, Norfolk “expanded” the question to include what the standard should actually be — not just whether the standard should be the same in both kinds of cases. “The issue . . . is significant enough that we prefer not to address it when it has not been fully presented,” Roberts wrote. The case involved injuries suffered by trackman Timothy Sorrell on the job while working for Norfolk Southern in Missouri. So how does Phillips plead to charges of issue smuggling? Not guilty, he says with a laugh. The issue of the standard was an “anterior question” that was a necessary part of what the Court was considering, Phillips says, and it had been discussed in filings by his adversary. And no subterfuge was involved, Phillips adds. “We were very clear about what we are doing.” Stephen Shapiro of Mayer, Brown, Rowe & Maw, co-author of Supreme Court Practice, says the point raised by Roberts is an “elusive issue” because Court rules allow parties to address questions that are included in the main question accepted for review by the Court. “Practitioners cannot tell for sure in advance when a question will be deemed included,” says Shapiro. Phillips was able to take the Roberts comment in good humor for one major reason: In spite of the swipe, Phillips won the case. “We got the judgment set aside, so it was a very good day,” Phillips says. Footnote: The Norfolk ruling was not the first time the Court has accused Phillips of issue smuggling. In a dissent in the 1995 case of Missouri v. Jenkins, a school-desegregation case, Justice David Souter criticized the state’s “now-successful attempt to smuggle additional questions into a case.” Phillips was part of the team representing Missouri.
Tony Mauro can be contacted at [email protected].

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