After the Tall Timber (44 page)

Ms. Kael’s work has been praised as “great  . . . a body of criticism which can be compared with Shaw’s” (
Times Literary Supplement
). She has won a National Book Award. So far as I know, apart from a personal statement by Andrew Sarris, which appeared in the
Village Voice
as this piece was going to press, the book has received uniformly favorable reviews.
The New Republic
describes it as consisting of “all peaks and no valleys.” A Kaelism, surely. None of this is Ms. Kael’s fault. It is only symptomatic. The pervasive, overbearing, and presumptuous “we,” the intrusive “you,” the questions, the debased note of righteousness and rude instruction—the whole verbal apparatus promotes, and relies upon, an incapacity to read. The writing falls somewhere between huckster copy (paeans to the favored product, diatribes against all other brands and their venal or deluded purchasers) and ideological pamphleteering: denouncings, exhortations, code words, excommunications, programs, threats. Apart from the taste for violence, however, which she takes to be a hard, intellectual position, there is no underlying text or theory. Only the review, virtually divorced from movies, as its own end:

No matter that the sentence is clearly false. (Think of
Shaft
, for instance.) No matter even that “one immutable law” manages wonderfully to combine Kaeline authoritarianism with Kaeline hype. The sentence is plainly inconsistent with what Ms. Kael writes elsewhere—when it is the elitist mode that suits her: the “mass audience” she derides frequently; the audience she “couldn’t help feeling  . . . was being insulted, although the audience doesn’t think so”; the “many people,” of whom she writes, in yet another piece, who “resist quality” because “they’re afraid of being outclassed.” All that the one immutable law about movies amounts to is that Ms. Kael will not brook disagreement. Personally. And not just with her enthusiasms—which might be a form of generosity in a critic. Also, more vehemently, with her revenges and dislikes. “Did these people stand up and cheer to get their circulation going again?” she writes of even the smallest film she fears might become a hit. She likes to ban.

Three last quotations, as another kind of symptom:

Now, it doesn’t matter whom these quotations are “about”—although the middle one concerns Ingmar Bergman. They are not “about” anything. Each marks a kind of breakthrough in vulgarity and unfairness. Look at the “It’s quite possible” in the first, and the “mortifyingly.” Look at the “as if” in the second, and the “even.” Consider, in the third, the “would be.” All three involve a perfectly groundless imputation to another (plagiarism, racism, corruption) and a pious personal recoil (mortifyingly, crude, vain). The strategy is characteristic of Ms. Kael’s work. I can hardly imagine a reader who would sit through another line.

Cumulatively and in book form, these reviews have an effect different from anything that was even intimated on a weekly or desultory basis. It occurred to me when I had read a few hundred pages that the book assumes an audience composed partly of people who know nothing about the movies, and partly of people who read only film reviews. Accept the claim that she
cares
, and/or remember that it’s only a movie; and there’s no need to pay attention to the rest. But what I think has happened is this: an extreme case of what can go wrong with a staff critic. Prose events that would, under ordinary circumstances and on any subject other than movies, have been regarded as lapses—the sadism, slurs, inaccuracies, banalities, intrusions—came to be regarded as Ms. Kael’s strong suit. Ms. Kael grew proud of them. Her cult got hooked on them. Readers generally skipped over them. There was always the impression, unfounded but widely held (I held it), of liveliness. And it was not clear how radical an imposition each mannerism and device would become when the reviews appeared weekly, and with a strong institutional base.

The New Yorker
, as it happens, is an institution of unique civility and patience, dedicated absolutely, although it may not always look that way, to leaving writers free to write what, and at what length, they choose. In recent years, it was having insuperable problems with its other movie critic. Editors of weekly magazines, moreover, work—no less than staff critics—under the pressures of a deadline. The result is that, of practical though not spiritual necessity, staff critics have special institutional support.
The New Yorker
could not devote its energies, every week, to a bitter struggle over movie columns—which, incidentally, were growing so long that other pieces, on which serious intermittent writers had worked for years, were being overwhelmed.

With intermittent writers, when there is a disagreement, a piece can always be postponed. In this way, of course, editors can exert strong, legitimate pressure. It may be your piece; but it’s their magazine. With a staff critic, that mild form of blackmail is reversed. Editors cannot, professionally, often postpone a weekly piece. So
The New Yorker
had either to fire Ms. Kael (which would, for many reasons, including the problems with the other critic, have been a mistake; anyway,
The New Yorker
doesn’t fire people) or accommodate her work. The conditions of unique courtesy, literacy, and civility, of course, were what Ms. Kael was most inclined by temperament to test. The excesses got worse.

Then an odd thing happened: Ms. Kael went out to Hollywood. For a critic preoccupied with metaphors for selling out, this seemed an extraordinary move. The
New York Times
, for instance, is so acutely aware of the possibilities for conflict of interest in film reviewing that it forbids its critic to write screenplays. When Ms. Kael returned from Hollywood, I, among others, felt strongly that
The New Yorker
should take her back. I hadn’t read this collection. She was the critic people knew and talked about. I believed she was lively and that she cared. Anyway, in her absence, it had become clear that nobody else at
The New Yorker
wanted to be the staff movie critic. She did come back.

She writes as she has written these past five years, but at least her column is no longer weekly. Criticism will get over it. Once the tone and the ante, however, have been pumped up to this awful frenzy, it becomes hard—even in reviewing Ms. Kael’s work—to write in any other way; or, in the typographic clamor, to detect and follow a genuine critical argument. What really is at stake is not movies at all, but prose and the relation between writers and readers, and of course art.

The New York Review of Books
August 14, 1980

OF ALL writing in this society, the writing of courts—in particular, the Supreme Court—has the most immediate powers and consequences. Men go to jail or are released, great corporate structures are dissolved or left intact, laws are upheld or overturned, men regulate their future conduct on the basis of what judges write. Most writing, of course, aspires to be or to appear original, to tell something new. This is true in scholarship and art. It is especially true, almost by definition, of journalism, where what is old, self-evident, or well-known is simply not the news. The writing of judges, however, aspires to just the opposite effect. Perhaps because of its unique powers, judicial writing rests very largely on citing precedents, on saying: What we say today is more or less what we have always said, or should have said; it’s what our citizens have tacitly agreed; it’s what the Constitution meant; it’s obvious. Every Court decision clearly contains some new element, or there would be no need to make it. What creativity there is, however, goes mainly into saying why it ought to come as no surprise.

When serious investigative reporters confront the Court, there is thus a profound clash of aspirations. It is compounded, for Bob Woodward and Scott Armstrong in
The Brethren: Inside the Supreme Court
, by another problem. The Court, more than any other public institution, explains itself, identifies its sources. A dictator can say: This is the law because I say it is. A journalist can say: These are the facts and I need not tell who told me so. The Court says: This is the law as applied to facts ascertained in a public forum, and, under our system, we are obliged to tell you why. To attempt, as Woodward and Armstrong have done, to go behind the Court’s explanations over a period of six terms (1969 to 1975), and to find insights, or even secrets, of any importance whatsoever is an enormously ambitious undertaking. There are intimations, as early as page one of their introduction, that the authors may not be ideally equipped for it.

“And because its members are not subject to periodic reelection, but are appointed for life,” they write, “the Court is less disposed to allow its decision making to become public.”

Now, however long you may study that sentence, and whether or not you are a lawyer, you will realize that the connection between its two facts—if they are facts, if there is a connection—cannot be “because.” If there were a connection, it would more logically be “although.” But there is no connection. And looked at more closely, the two facts linked by that “because” are not quite facts. It is true that all federal judges are normally and constitutionally appointed “for life.” The Constitution just happens to phrase it “during good Behavior.” This distinction might seem unimportant—were it not that the authors later devote pages to efforts made to impeach Justices Douglas and Fortas. There could have been no such efforts if Justices were so simply and unequivocally appointed not during good Behavior but for life. And, since the “decision making” of Justices is, in the most obvious sense, precisely what
is
public, the authors can be alluding only to the Justices’—and, now, the clerks’—reticence about what goes on in conference (where clerks are not present) or in chambers.

What the authors promise, however, and not just in their subtitle, “Inside the Supreme Court,” is revelations per se, disclosure of secrets on a grand, even unprecedented scale. Their information, they claim, is “based on interviews with more than 200 people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court.”

A question immediately suggests itself. The custom of protecting the identity of sources, in daily journalism at least, has become extremely widespread. I happen to believe that, except when actual, identifiable harm would result, to the source or to some other worthy cause or person, that practice can be unprofessional, a serious impediment to journalism of all kinds. It makes stories almost impossible to verify. It suppresses a major element of almost every investigative story: who wanted it known.

But even if the identity of sources ought, almost invariably, to be protected, is there any tradition of reporting which requires that their
number
be protected as well? “More than 200 people,” “several Justices,” “more than 170 law clerks,” “several dozen former employees.” Well, how many? Two hundred and one people or 299? Three Justices, or five? What in the name of journalism would be compromised if we knew?

By the next page, we learn that the authors had “filled eight file drawers with thousands of pages of documents from the chambers of 11 of the 12 Justices” who served in the period under investigation. Then there is an apotheosis: “In
virtually every
instance [of what, they do not say] we had
at least one, usually two
, and
often three or four
reliable sources in the chambers of each Justice” (italics added). Apart from an occasion to smuggle that word “reliable” into what appears to be a quantitative statement, what can these vague enumerations mean? They mean that, at least as regards number, the authors prefer their own pointless secret (how many) and implications of massiveness to precise statements of simple fact.

A related preference appears in more trivial contexts: “ ‘No way,’ Justice Rehnquist shot back, adding a mild obscenity for emphasis.” By this point in the book, page 395, the authors have attributed to one Justice or another almost every obscenity I know. Are the identities of even “mild obscenities” now to be protected? Eight Justices were allegedly in the room when Justice Rehnquist said whatever it was, so there can be no question of needing to protect a source. But again, the authors prefer a knowing-sounding secret to a simple fact.

Most of the facts in this book, however, are far from simple. I have not meant to imply that this is a light or even unimportant work. It is only that, in this first, extended confrontation—at book length, outside an actual lawsuit—between the Court with its secrets, whatever they are, and investigative journalists with their secrets, such as they are, the journalists’ own technique seems unexamined, and often very far from sound.

The Brethren
, as it happens, contains no scandals and, although the authors clearly do not know it, no revelations that would astonish any lawyer or other student of the Court. Nonlawyers, I think, will find the book extremely hard to read. Since early in this century, most American law students have been taught in what is called the “case method” by textbooks called “Cases and Materials”: essentially very heavy compilations of appellate decisions in Contracts, Torts, Procedure, and so on interspersed with some expository matter by the author/compiler, and even a few questions at the chapter ends. Whatever the pedagogic value of these textbooks, every law student would concede that they are among the world’s most boring books.
The Brethren
is, in some ways, Woodward and Armstrong, “Cases and Materials on the Supreme Court.” The cases, however, are not appellate judgments but journalists’, not lawyers’, summaries; and the materials are meditations—and an odd form of gossip that the authors seem to regard as investigative scoops.