Review: Battle for the Marble Palace by David Bobelian

Conventional wisdom likes to pin the birth of today’s scorched-earth Supreme Court confirmation battles on the Democrats’ treatment of Robert Bork in 1987. But that story is too neat, and too late. The real turning point came nearly two decades earlier, and—like so many American political convulsions—it traces back to 1968. Mark Kurlansky famously called 1968 the year that changed everything, and judicial politics were no exception. As legal historian David Bobelian argues, the modern war on Supreme Court nominations begins not with Bork but with Strom Thurmond.

Furious at the Democratic Party’s embrace of civil rights, Thurmond bolted the party and vowed revenge. He blamed the Warren Court for what he saw as the dismantling of the Constitution—by which he largely meant the dismantling of Jim Crow. Brown v. Board of Education, the expansion of privacy rights, and rulings on school prayer were, to Thurmond, evidence of a runaway judiciary.

What made Thurmond different was his strategy. He openly urged conservatives to undermine the Court’s legitimacy and turn public opinion against it. Many of the Warren Court’s decisions were deeply unpopular, and Thurmond helped fuse a potent coalition—evangelicals, law-and-order voters, and segregationists—that would become the backbone of the modern Republican Party.

Into this volatile atmosphere stepped Lyndon Johnson. Eager to cement his legacy, Johnson persuaded Justice Arthur Goldberg to step down to elevate his close friend, Abe Fortas, to Chief Justice. This move proved a tactical disaster. Thurmond found an ally in James Eastland, the segregationist chair of the Senate Judiciary Committee, who wielded institutional power to stall the nomination.

The deeper grievance was not Fortas himself but the "one person, one vote" decision in Baker v. Carr, which threatened the gerrymandered districts of rural white power. When the Fortas nomination collapsed, it fundamentally changed the vetting process. As Nixon speechwriter Pat Buchanan wrote for a Nixon speech: “Now, because of the Fortas matter, I determined that the appointee should not be a personal friend.” This declaration wiped out the traditional pool of candidates—senators, governors, and cabinet officials—who were now deemed too vulnerable to charges of cronyism.

Nixon capitalized on this shift, using the "Southern Strategy" to reward his base. While his appointment of Warren Burger was smooth, his subsequent attempts to fill Fortas’s seat with Clement Haynsworth and G. Harrold Carswell met fierce resistance from labor and civil rights groups.

Nixon’s aggression went beyond filling seats; he sought to purge the bench of liberals like William O. Douglas. In a precursor to modern partisan tactics, Nixon had the FBI tap Douglas’s phone and the IRS audit him. Future Vice President Gerald Ford led the public charge for impeachment, famously arguing that an impeachable offense was "whatever a majority of the House of Representatives considers it to be at a given moment in history." Though these efforts to remove sitting justices failed, the "inter-species pathogen" of politicization had crossed over. Nixon had forged a template for using the executive branch to reshape the judiciary for partisan ends, fine-tuning the focus on a nominee’s race, gender, or religion as political currency.

When Robert Bork finally arrived at the Senate in 1987, the battlefield had long since been prepared. The greatest irony was the role reversal: Strom Thurmond, the man who had pioneered the filibuster and the character assault against Fortas, now took charge of defending Bork.

Thurmond railed against Bork's opponents for "deviating from traditions," conveniently ignoring his own history of conducting "adult film festivals" during hearings to shame nominees or his relentless delegitimization of the Warren Court. He had violated the norms twenty years prior; now, he invoked them as a shield.

The confluence of these forces—the quest for ideological purity, the focus on identity politics, and the rejection of "crony" candidates—has left us with a hyper-politicized Court. Today, advocates on both sides have concluded it is far easier to influence five justices to push a political agenda than to appeal to thousands of legislators or the broader public.

The Bork hearings were not the beginning of this war; they were its inheritance. The rules had been rewritten in 1968, in an era where resentment over civil rights and a deliberate campaign of delegitimization converged to change the "Marble Palace" forever.

 

Further Proof I Have Never had an Original Idea

I just finished a book, Battle for the Marble Palace, review to appear shortly.  In the epilogue, the author mentions that in 1974,  just before his death, Earl Warren gave a speech at Morehouse College, in which he argued against a plan that would have created a "National Court of Appeals" that either I channeled in my sleep or must have read about and then forgotten, because it bears startling resemblance to what I thought was an original idea on my part.  Clearly, it reinforces the certainty that I've never had an original idea. *

This plan, which emerged in the early 1970s, was designed to relieve the "burgeoning caseload" of the U.S. Supreme Court. It was officially recommended in 1972 by the Freund Committee (the Study Group on the Caseload of the Supreme Court) (1), chaired by Harvard Law professor Paul Freund and appointed by Warren’s successor, Chief Justice Burger.

The proposed appellate body would have acted as a "buffer" between the existing Federal Courts of Appeals and the Supreme Court. Its key functions would have included: 

    Initial Screening: The new court would have screened all petitions for certiorari (requests for the Supreme Court to hear a case) and forwarded only a fraction (about 400) of the most "review-worthy" cases to the Supreme Court.

    Finality of Denials: Crucially, if the National Court of Appeals denied a petition, that decision would be final—litigants would have no further path to the Supreme Court.

    Resolving Circuit Conflicts: It would have the power to decide cases where different federal appeals courts had issued conflicting rulings, provided the issues weren't "important" enough for the Supreme Court itself.

Warren believed it would diminish the Court's standing, and that it would take away the right of every citizen to petition the highest court in the land. He was also against other structural changes that were being contemplated following Watergate. 

Specifically Warren said, ""The proposal to create a National Court of Appeals to screen cases for the Supreme Court would not only result in a loss of the Court's control over its own docket but would inevitably lead to a loss of the public's confidence in the Court as the ultimate protector of their rights."  Of course, losing control of its docket was one of the more positive features of the plan, in my opinion, as it would prevent the court from setting a "legislative" agenda, which is happening under the Roberts/Alito/Thomas Court.

I could not find the complete Morehouse Commencement address but found another speech in which he goes after the proposal arguing in part:

"The Supreme Court of the United States has not been immune from the destructive cynicism of our age. No one has yet suggested that it .be abolished outright. But in far more subtle and sophisticated ways, often masquerading under the guise of
procedural reform, there are those in the land who would have the jurisdiction and effectiveness of the Supreme Court substantially weakened. 

After the. mid-winter meeting of the House of Delegates of the American Bar Association, a plan to do exactly this was overwhelmingly endorsed after. a most superficial debate, which omitted any delineation or discussion of the details of the plan. All that we know is that the House of Delegates approved the bare contours of a plan to strip the Supreme Court of some of its vital powers to decide certain types of cases and to transfer those powers to a new court, a Mini Supreme Court.

Vagueness and impreciseness appear to be the hallmarks of the proposal. Even as late as April 1, when one spokesman presented the proposal to the Commission on Revision of the Federal Court Appellate System, the plan was shifting, hauling and tacking in some of its critical details. But, while some of the details may be unclear, the message conveyed has both loudness and clarity. The message is that the Supreme Court should no longer be allowed to exercise all of its authority to adjudicate cases that fall within its jurisdiction. 

The very essence of both proposals is that a new ad hoc tribunal should be established by Congress, a tribunal composed of lower court judges temporarily assigned on a rotating basis.  (2)

I appreciate that Edwin Chemerinsky, to whom I had sent the idea, was kind enough in his reply to simply suggest we didn't need another layer of courts rather than suggest I was just another dummy rehashing the past!

Partially, in my defense, the Judiciary Act of 1925, according to the Report, which permitted the Court to decide itself which cases were to be heard (until then they had to accept all petitions) assumed that the justices would give individual attention to all business brought to the court and receive the individual attention of every justice. (pg v) That has not happened as that responsibility has devolved to the clerk pool, it would seem.

References:

*https://rarebits.blogspot.com/2020/10/fixing-supreme-court-conundrum.html

(1) Freund Committee Report:
https://www.fjc.gov/sites/default/files/materials/44/Report_Study_Group_Caseload_Supreme_Court.pdf

(2) Santa Clara Law Review, Address Delivered by Honorable Earl Warren, Chief Justice of the United States Supreme Court, Retired, at the
Commencement Exercises of the Law School, University of Santa Clara, Santa Clara, Calif. - May 11, 1974 Address, 14 Santa Clara
Lawyer 740 (1974).
Available at: http://digitalcommons.law.scu.edu/lawreview/vol14/iss4/2

Summary of the 1972 Report of the Study Group on the Caseload of the Supreme Court

By the early 1970s, the Supreme Court had a serious problem that everyone could see but no one had really fixed: it was drowning in paperwork. The Study Group’s 1972 report is basically the Court saying, “We can’t keep doing this and still do our job properly.”

The report starts from a simple idea: the Supreme Court isn’t supposed to be just another appeals court. Its job isn’t to fix routine mistakes. Its job is to resolve the biggest legal conflicts in the country, keep federal law uniform, interpret the Constitution, and referee disputes between branches and levels of government. Those things take time, reflection, and real discussion among the Justices. You can’t rush them.

But the numbers show that rushing was exactly what was happening. Over a few decades, the number of cases filed with the Court exploded—especially petitions from prisoners and criminal defendants who couldn’t afford lawyers. By 1971, more than half the Court’s docket consisted of these in forma pauperis filings. Most had no merit, but every single one still had to be read and considered by every Justice. Meanwhile, the number of cases the Court actually heard and decided stayed about the same as it had been years earlier.

The result? The Justices were spending more and more time screening junk and less and less time thinking deeply about the cases that actually mattered. Conflicts between federal appeals courts were piling up unresolved. Cases that earlier Courts would have decided on the merits were now quietly passed over. Even when cases were decided, the report worries that the quality of deliberation was being squeezed by sheer exhaustion.

The report also makes clear that throwing more people at the problem won’t work. Adding more Justices would just mean more people to convince and more opinions to reconcile, without really reducing the burden. Relying more heavily on law clerks helps, but only up to a point. The Justices can’t delegate their core responsibility, and the Court shouldn’t turn into nine little bureaucracies run by staff. The Justices are supposed to deliberate with each other, not just manage memos.

A particularly blunt section deals with prisoner petitions. The report says, in effect, that we’re kidding ourselves if we think prisoners really get meaningful Supreme Court review. What they actually get is a few minutes of attention from an overworked clerk or judge. The authors suggest that it might be more honest—and more humane—to create a specialized system to screen and investigate prisoner claims seriously, instead of pretending the Supreme Court can do it well.

So what’s the solution? The Study Group’s main recommendation is a new institution: a National Court of Appeals. This court would sit between the existing appeals courts and the Supreme Court. Most petitions that now go straight to the Supreme Court would go there first. The new court would throw out the vast majority of cases, send the truly important ones up to the Supreme Court, and decide many inter-circuit conflicts itself. The Supreme Court would still control its docket—but it wouldn’t be buried alive by it.

The authors admit this would mean the Supreme Court giving up some control. But they argue that this is unavoidable. If nothing changes, the Court will still lose control—just in worse ways, by becoming more dependent on staff and less able to do its constitutional job. The report closes with a warning drawn straight from history: the Court has faced crises like this before, and Congress acted in 1891 and 1925. The early 1970s, the authors say, are another one of those moments. If reform doesn’t come, the Court will change anyway—and not for the better.

 

Review: The Whale: In Search of the Giants of the Sea by Philip Hoare

 

Part Mark Kurlansky and John McPhee, -- authors I love -- Eric Dolan has written an absolutely fascinating book about whales and the history of the whaling industry. Much as those authors bring quotidian things and events to life.  It's also part literary criticism and biography.

 

The first whaling was done by settlers who copied the Indians dismantling of stranded pilot whales along the coast. This was succeeded by shore-based whaling as the value of whale oil became apparent leading to taxation and division of the spoils according to detailed rules.  What happened, for example, when a whale washed up on the beach attached to a harpoon?  Who "owned" the whale? This led to marking harpoons and lances, much as lobster fishermen do to buoys today, to help identify who might own a share.

 

Gradually, as the Indians, who had performed much of the labor connected to whaling, died off from diseases brought back by those same ships, and as the value of the product rose immensely, blacks were hired to work. The case of Prince Boston was to have profound implications nationally. He was an excellent boat steerer, and having returned from a voyage was due the princely sum of 28 pounds, a substantial amount.  His owner, Swain, claimed the money belonged to him and when Roach, the ship's owner, who despised slavery, insisted on paying Boston directly, Swain sued. He lost in all venues. In the Mass. Supreme Court, Boston was not only awarded the money but also given his freedom.

 

Whaling leveled racial animosity. Escaped slaves would often seek out berths on whaling vessels as a way to earn money (they got equal wages with their white counterparts) as well as escape the depredations of the slave catchers. Most Nantucket whaling captains wanted nothing to do with racial animosity and valued their black sailors.  There were exceptions. One Second Mate who became captain after the deaths of the Captain and his First Mate, decided he could make a lot of money by turning his ship into a slaver and sailed off to Africa where he obtained a load of slaves, a profitable voyage, indeed.  Whale ships were designed to have lots of room in the hold making them well-suited for such evil transactions.

 

The story behind Moby Dick is interesting.  Melville had signed on has a hand on a whale ship for a 1/175th share (the whole section on how they were paid and the pittance ordinary seamen earned is revealing.) During a GAM -- when two whale ships met in the ocean they would hang our for several days mingling crews and exchanging gossip -- Melville met a young man by the name of Chase who recounted his time on the Essex, a ship that was rammed by a large sperm whale and battered until it sank. The few crew members who survived did so by consuming their companions. (See my review of Nathaniel Philbrick's In the Heart of the Sea: The Tragedy of the Whaleship Essex  .) Melville was so taken by the story he used it for, well, you know...  

 

The heyday of whaling was the 1850's before the discovery of coal gas and kerosene as alternative lighting options. The predations of the confederate raiders Shenandoah and Alabama which preyed almost exclusively on the whaling fleet -- they couldn't shoot back so it was easy pickings, destroyed many ships, but the great ice-in of 1871 and 1876, when with typical white man hubris they had ignored the warning of the Eskimos in the Arctic, not only destroyed many ships, but badly hurt the insurance industry which had to take the brunt of the losses. (The story of of 100 whale boat trek to open water is quite a story in itself.) The ever-increasing availability of oil and its refinements spelled doom for the whaling industry, which diminished to nothing by the end of the 19th century.

 

BTW.  You do NOT want to know how ambergris is formed and where it comes from.

 

Wonderful read.

 

Originalism, Abortion, and the Constitution’s Unfinished Commitments

 A discussion of two recent and related articles along with my understanding of John Bingham's 14th Amendment as an author of the "third" U.S. Constitution.

Balkin, Jack M., Abortion and Original Meaning, 24 Const. Comment. 291 (2007).
Available at: https://scholarship.law.umn.edu/concomm/432 

Koppelman, Andrew, "Why Jack Balkin is Disgusting" (2011). Faculty Working Papers. Paper 17.
http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/17 

Magliocca, Gerard N. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York UP, 2013. 

For decades, constitutional debate over abortion has been framed as a stark choice between "Originalism" and a "Living Constitution". On the conventional account, originalism—faithful adherence to the Constitution’s meaning, especially what the Founder's meant, at the time of enactment—necessarily condemns abortion rights, or at least doesn't permit it, while Roe v. Wade stands as the paradigmatic example of ahistorical judicial invention. Jack Balkin’s "Abortion and Original Meaning" directly challenges that dichotomy, arguing that abortion rights are not a repudiation of originalism but can instead be justified by fidelity to the Constitution’s original meaning properly understood, at least in the Constitution  after the ratification of the 14th Amendment. Andrew Koppelman’s sharply titled response, "Why Jack Balkin Is Disgusting", accepts much of Balkin’s descriptive account while highlighting how radical—and unsettling—this form of originalism actually is .

Taken together, the two articles reveal that the abortion debate is not merely about reproductive rights. It is about whether originalism can survive contact with the Constitution’s abstract principles, social movements, and moral development—or whether it collapses into a far more dynamic, historically contingent theory of constitutional meaning than its proponents typically admit.

Balkin’s central thesis is to distinguish "original meaning" from "original expected application". The framers and ratifiers of the Fourteenth Amendment did not expect it to protect abortion rights. It wasn't an issue. But, Balkin argues, that expectation is not the law. What binds later generations is the "meaning" of the constitutional text—particularly its broad guarantees of liberty and equal citizenship—not the specific applications like abortion or contraception anticipated in 1868 .

The Fourteenth Amendment’s language—“liberty,” “due process,” and “equal protection”—was deliberately abstract. Its drafters chose principles capable of growth, delegating to future generations the task of applying them to new forms of injustice. Balkin argues that laws criminalizing abortion violate these principles because they enforce a form of **class legislation**, subordinating women by coercively assigning them the burdens of pregnancy and motherhood. Under this reading, abortion restrictions are not neutral health regulations but state-imposed hierarchies inconsistent with the Amendment’s commitment to equal citizenship .

Crucially, this argument does not rest on privacy alone. Instead, Balkin grounds abortion rights in the same antisubordination logic that underlies modern sex equality jurisprudence. The Constitution’s original meaning, he contends, condemns laws that use biological difference as a basis for civic inequality—even if the original generation failed to recognize women as full constitutional subjects.

Here is where Balkin most unsettles orthodox originalism. He insists that constitutional meaning is not mechanically extracted from historical sources but is **constructed over time** through interpretation, doctrine, and social struggle. Social movements do not merely pressure courts; they help determine which interpretations of constitutional principles become authoritative. The women’s movement of the twentieth century, like the civil rights movement before it, reshaped the nation’s understanding of what equal citizenship requires .

Andrew Koppelman embraces this descriptive claim—and finds it deeply disturbing. His essay’s provocation lies in its candor: Balkin’s theory is “disgusting” not because it is incoherent, but because it strips originalism of its promise of determinacy and constraint. If constitutional meaning evolves through persuasion, cultural change, and political power, then originalism can no longer function as a neutral bulwark against judicial discretion .

Koppelman argues that Balkin’s framework reveals what originalism has always tried to deny: constitutional interpretation is unavoidably shaped by values, historical contingency, and contested moral judgment. Once originalism is detached from original expected applications, it becomes capacious enough to justify not only abortion rights, but virtually every major constitutional development that conservatives often attribute to “living constitutionalism.”

Abortion, for Balkin, is a stress test for constitutional theory. If originalism cannot account for abortion rights without collapsing into exceptions, grudging stare decisis, or open moral reasoning, then it fails as a theory of fidelity. By contrast, Balkin’s “method of text and principle” treats abortion rights as a legitimate outgrowth of the Fourteenth Amendment’s original commitments—even while rejecting Roe’s specific doctrinal framework .

Koppelman underscores the irony: Balkin’s originalism succeeds precisely because it abandons the fantasy that constitutional meaning is fixed, determinate, and insulated from politics. What remains is a constitutional order in which principles endure, but their implementation is constantly renegotiated. That vision may horrify traditional originalists—but it may also be the most honest account of how American constitutionalism actually works .

Together, these articles suggest that the real scandal is not that originalism can support abortion rights, but that it can only do so by transforming itself. Balkin shows that fidelity to the Constitution does not require obedience to the dead hand of historical expectations. Koppelman shows that once this move is made, originalism loses its claim to ideological innocence.

Abortion thus becomes more than a constitutional controversy. It becomes a mirror, reflecting the deeper truth that the Constitution’s authority lies not in static historical answers, but in a continuing argument over the meaning of liberty and equality. Whether one finds that conclusion liberating or “disgusting” may say less about abortion than about what one believes constitutional law is—and should be.

I believe Balkin and Koppelman got it right in these two articles.  John Bingham is one of my heroes.  As an author of the 14thAmendment, I think Bingham would define those important words, liberty, due process, and equal protection in such a way as to precisely protect the right to abortion and contraception and privacy, i.e. to think of the 14th Amendment as a template of rights to protect future subjects of the Constitution in challenges to rights other than the original protections for former slaves.

For Bingham, liberty was not a narrow freedom from physical restraint, nor merely a procedural concept. It was a substantive status of free citizenship.

He consistently used liberty to mean: Freedom from arbitrary government power ; Enjoyment of fundamental civil rights; The condition of not being reduced to a caste or dependent status;  freedom as a civil condition, not merely freedom from imprisonment.

Bingham explicitly rejected the idea that liberty was limited to what states traditionally chose to protect. Liberty was something the Constitution itself guaranteed, and the Fourteenth Amendment was meant to force states to respect it.

Due process was meant to prevent unjust laws, not just unfair procedures. 

Bingham believed process alone was meaningless if the law itself was unjust. A law could be “procedurally regular” and still violate due process if it destroyed liberty.

Equal protection meant the abolition of caste legislation. It did NOT mean identical treatment, colorblindness, or mathematical equality. Equal protection required that: laws protecting persons and property apply equally to all classes; no group be placed in a subordinate legal status; states not single out groups for systematic legal disadvantage.  Clearly, women should be considered a group or a class and receive equal protection. Importantly, equal protection was understood as a positive obligation, states had to protect persons equally, failure to protect (e.g., tolerating racial violence) was itself unconstitutional. This is why early Fourteenth Amendment debates focused on violence, labor exploitation, and family integrity, not abstract formal equality.

It is equally important to say what Bingham and his colleagues did not mean:

• They did not think liberty was frozen to 1868 expectations

• They did not think equal protection applied only to race (though race was central)

• They did not believe states retained plenary power over “civil rights”

• They did not think constitutional rights were exhausted by procedure alone

They deliberately chose open-ended language because they knew future injustices would arise.

Laws that use biology or status to impose dependency raise simultaneous liberty, due process, and equal protection concerns—even if the framers did not anticipate the specific modern application.

That is why later scholars like Balkin and Koppelman argue (correctly in my view) that the Fourteenth Amendment’s original meaning can extend to issues like reproductive autonomy, marriage, bodily integrity, and family life.  That's not being a Living Constitutionalist but rather and Originalist and it's why so many originalists who believe otherwise got twisted in knots.

  

Rumor of War by Philip Caputo

    Observing Trump's casual attack on Venezuela and listening to his drum-banging, and the return trip to machine-gun survivors had me pulling Vietnam stuff out of my library. I had read Karl Marlantes' memoir (Matterhorn) several years ago and was struck by observational similarities between Caputo and Marlantes. Both reveal the guilty pleasure they both felt from going to war. After returning home, both missed it, the camaraderie and “aliveness” that battle brings to the psyche. During officer training, a particularly boring session filled with WWII tactics that proved to be completely irrelevant to Vietnam, a classmate whispered to Caputo, “You know,” he whispered, “the trouble with war is that there isn’t any background music.”

 

    I happened to watch a particularly terrifying video on Youtube about non-human threats to the soldiers: snakes, tigers, and centipedes. Vietnam is home to multiple species of extremely venomous snakes: the krait, bamboo pit viper, King Cobra, Monocle Cobra, sea snakes in the rivers, Weaver ants, and even poisonous plants: “The plant contains a compound similar to strychnine and its effects can be felt almost immediately, eventually leading to death by asphyxiation. Despite its killer reputation, accidentally ingesting heartbreak grass occurs quite regularly and has been in the news over the last few years in relation to the suspicious death of a Russian whistle-blower in 2012. The centipedes could be a foot long and possessed an extremely painful bite: it would kill you, just make you miserable but wouldn't get you an evacuation helicopter unlike” Tigers, crocodiles and elephants – oh my! Plants and hard-to-see insects aren’t the only dangers lurking in the Vietnam jungle. Crocodiles lurk in the water, and elephants can charge unprovoked." (1)

 

    Marlantes and Caputo both acknowledge that to be a leader you have to order friends into situations where there is a likelihood they will die. And they are always the best guys, because in order to meet the object you need the best guys, not the ones with bone spurs. Soldiers dies by the hundreds taking hills because they were ordered to do so, only to have those hills evacuated and abandoned a matter of days or weeks later. It's no wonder morale sank. It was all about body count; the problem was the U.S. body count was escalating as well. By April 1969 35,000 Americans had been killed; 60% were under 21.

 

    Caputo reached a point where death was not to be feared. His description is almost lyrical. His platoon was sent on a mission where they were essentially bait for the NLF only to come under artillery fire from their own guns. 

 

    The ground slammed against my chest, bouncing me up an inch or so, and a part of me kept going up. I felt myself floating up out of myself, up to the tops of the trees. Hovering there, I felt an ineffable calm. I could see the flashing shells, but they no longer frightened me, because I was a spirit. I saw myself lying face down in the foxhole, my arms wrapped around the back of my neck. I felt no fear, just a great calm and a genial contempt for the puny creature cringing in the foxhole below me. I wondered if I was dying. Well, if I am, I thought, it is not so bad. Dying is actually pleasant. It is painless. Death is an end to pain. Rich the treasure, sweet the pleasure, sweet is pleasure after pain. Death is a pleasure. The Big D is the world’s most powerful narcotic, the ultimate anesthetic.

 

   Another quote:

    We ate lunch. Our rations were the same as the Viet Cong’s: cooked rice rolled into a ball and stuffed with raisins. The riceballs were easier to carry than the heavy C-ration tins and alleviated the diarrhea from which we all suffered. Eating the rice on that desolate hill, it occurred to me that we were becoming more and more like our enemy. We ate what they ate. We could now move through the jungle as stealthily as they. We endured common miseries. In fact, we had more in common with the Viet Cong than we did with that army of clerks and staff officers in the rear.

 

    Life was a matter of blind chance. Walking back from the patrol during a cease fire, in constant rain, many suffering from immersion foot, someone stumbled on a hidden mine they blew up injuring many, but for Caputo, because he was standing in a certain place, and wearing a flak jacket, could pick the shrapnel out of his jacket, but the men around him were not as lucky. Rodella was being worked on by a corpsman. He had a sucking chest wound.

  

  It was his eyes that troubled me most. They were the hurt, dumb eyes of a child  who has been severely beaten and does not know why. It was his eyes and his silence and the foamy blood and the gurgling, wheezing sound in his chest that aroused in me a sorrow so deep and a rage so strong that I could not distinguish the one emotion from the other.

 

   And then, of course, there was the paperwork (need the info from the dog tags and details about the explosion) before they would send the medevac choppers. And the radios quit (WWII vintage) but finally after Caputo's threats, the choppers were on their way.

 

    The finale or consequence can be summarized by the tragedy of the "snatch patrol. Driven by exhaustion, fear, and a "savage desire" for results, Caputo sends a squad into a Vietnamese village to capture two suspected Viet Cong. Though his formal orders are to capture, he implicitly communicates a desire for blood. The squad subsequently kills two young men—one of whom was actually their own informant.

 

   Following the event, Caputo and his men were court-martialed for premeditated murder; penalty: firing squad. During the preparation for the trial, Caputo's excellent defense counsel, Rader, meticulously grooms Caputo to present "facts" that are technically true but stripped of their psychological and environmental context. Ultimately, Caputo realizes the trial is not designed to find the truth, but to protect the institution by either branding the men as "criminals" or acquitting them to prove the system’s virtue, all while ignoring the war’s inherent role in the tragedy.

 

   In the sterile environment of a courtroom, "facts" are the currency of justice. They are cold, verifiable, and binary. However, as Caputo demonstrates in his account of the Giao-Tri killings, a collection of facts can be used to tell a profound lie. The central conflict of the text lies in the "wide gulf" between the facts—the technical details of orders and actions—and the truth—the psychological and moral reality of men transformed by the "moral bacteria" of war.

 

    Rader, is a master of the factual. He insists on a narrative where Caputo issued a "clear, legitimate order" that was simply "disobeyed." Rader’s strategy relies on the "inexorable logic of the law," which values what was said over what was meant. On the witness stand, Caputo performs excellently, "parroting" rehearsed testimony that contains no perjury. Every word is technically a fact: he did order a capture; he did not order an assassination. Yet, Caputo acknowledges that this factual account is not the truth. It ignores the "silent communication" of bloodlust shared with his men and the "addled state of mind" produced by months of stalking through a landscape of landmines and "free-fire zones."

 

    The "truth," according to Caputo, is a "synthesis" that the court-martial is specifically designed to conceal. The truth is that the war itself—its policies of "body counts" and its demand for "bodies" over prisoners—created the conditions for the murder. The truth is that the line between a soldier and a murderer becomes blurred when the institution rewards the latter while providing the legal framework to punish the former when it becomes politically inconvenient. To admit this truth would be to "open a real can of worms," questioning the morality of the American intervention itself.

 

   Caputo's "crimes" were committed in a environment where the usual rules of society were not just suspended, but inverted. The military’s "sole aim was to kill Viet Cong." Success was measured by the Body Count. This metric incentivized violence and stripped away the distinction between enemy combatant and civilian. In "Free-Fire zones, soldiers were authorized to fire on anything that moved. Caputo notes the irony that the military used "weapons far more horrible than pistols" (like napalm or heavy artillery) to kill civilians daily, yet he was being tried for the death of two individuals as if he were a "common criminal" in a peacetime city. Caputo’s frustration and moral conundrum stems from the fact that the military defines "murder" not by the act of killing itself, but by the context of the paperwork. If the victims had been confirmed VC, he would have received a medal; because they were civilians, he faced a firing squad.

 

    The reason this is an "absurdity" is that a trial for murder in a war zone necessitates a trial of the war itself. If Caputo is guilty, then the system that produced him and the policies that directed him (like the reward for "bodies") are also guilty. The military legal system functions as a mechanism for "institutional conscience." By focusing strictly on the facts of the "detective story," the Marine Corps ensures that regardless of the verdict, the institution remains unblemished. If found guilty, the men are "common criminals" who do not represent the "fine fighting sons" of America. If found innocent, the system has proven its "fairness." In both scenarios, the war is acquitted. The facts act as a shield, protecting the observers from the "horror" Caputo feels when he looks into the "glassy eyes" of the dead boy.

  

  The legal absurdity Caputo describes is the ultimate "Catch-22" of the Vietnam War. He points out a fundamental hypocrisy: the military spent months stripping away his civilian inhibitions to turn him into an efficient killer, only to re-apply those same civilian moral standards once his killing became a public relations liability.

    

 (1)https://www.warhistoryonline.com/vietnam-war/vietnam-jungle.html

 

   From the archives

 

    Yeah, we ran into tigers. In infantry combat talk, a tiger is an ambush. So, I’m on the radio and Scott on the chopper calls up and tells me, “You’ve got a tiger in front of you,” and obviously I’m thinking there’s an ambush in front of me, and I said, “Well how many are there,” and he said, “One,” and I laughed. I said, “Well that’s not a tiger, that’s a sniper.” He says, “No,” he says, “Tiger, you know, the one on the four legs!” So, that was more scary than an ambush to me because a tiger can rip you apart. So, they scared it off, a tiger. Snakes of course, obviously we ran into a lot of snakes over there. That was about it. I mean, there were spottings of elephants but I’d never seen an elephant over there. That was pretty much it as far as the wildlife and the monkeys.

    (https://vva.vietnam.ttu.edu/images.php?img=/OH/OH0152/OH0152.pdf&from=website)

 See also my meditations on the Medina trial. https://rarebits.blogspot.com/2025/12/caedite-eos-mylai-and-similarities.html 

Fiction as Truth

In the midst of the U.S. pushing into Venezuelan oil fields, discussing something as seemingly trivial as fiction versus nonfiction might feel out of place. But then, after hearing Trump’s justification for reclaiming oil that Venezuelans “stole” from us—oil we had once stolen from them—and watching Hegseth strut around mouthing empty rhetoric, maybe now is the perfect time to dive into the blend of fiction and nonfiction as a fresh form of journalism.

I remember being genuinely shocked when I discovered that Edmund Morris’ biography of Ronald Reagan included fictional characters, added to supposedly help explain his character and the events surrounding him. It made me question where we draw the line between fact and fiction. Similarly, when I watch movies "based on a true story," I can’t help but immediately start researching what really happened, craving the truth behind the narrative.

Last night, I picked up Gay Talese’s Thy Neighbor’s Wife again—a book I started a couple of years ago but abandoned due to discomfort. It wasn’t just the prurient aspects that made me uneasy; Talese’s exploration into the private lives of couples, presented as a “non-fictional” analysis of cultural shifts, felt intrusive, even though it was framed as objective. I had the same reservations reading The Voyeur’s Motel—how could Talese possibly know everything he was claiming based only on interviews? But maybe I’m just overly fixated on footnotes and citations.

Despite my discomfort, these books are undeniably intriguing. Talese’s section on Al Goldstein and Screw magazine was especially captivating. Still, after reading Fanny Hill as a teenager, I suspect that human sexual behavior hasn’t really changed much. What’s different now is our increasing openness about it—or maybe we’re just returning to the less repressed attitudes of the Greeks and Romans, who weren’t burdened by centuries of Augustine-driven guilt.

Talese isn’t the only one to blur the lines between fact and fiction in pursuit of a more “authentic” truth. Truman Capote famously claimed that In Cold Blood was entirely true. But we now know he invented its most emotional and pivotal scene. That’s not a small discrepancy—it’s a fundamental contradiction in narrative nonfiction. We approach “true” stories with a certain trust in their factuality, believing the writer is a reliable conduit to reality. But constructing a “true story” is far from simple. It’s an artistic, ethical endeavor where the line between objective fact and subjective truth becomes uncomfortably—and perhaps compellingly—blurred. Capote’s work is hailed as a masterpiece of reportage, yet critics quickly pointed out the fictionalized scenes and how he "sentimentalized" Perry Smith, the murderer, to serve his artistic vision.

But to judge the book by its factual purity is to miss Capote’s more radical ambition. His goal was not immaculate fact, but immaculate truth.His work argues that the highest truth is not found in a sterile recitation of facts, but in a profound, if controversial, honesty of intent. 

While some writers bend facts for artistic effect, Edmund Morris shattered them entirely in Dutch, his 1999 biography of Ronald Reagan. Frustrated by his subject’s enigmatic nature, Morris inserted fictional characters into the narrative, fabricated historical documents, and—in a move that horrified the academic world (and me)—created false footnotes that cited these nonexistent materials. (I guess the hallucinogenic aspects of AI  are copied from Morris.) In an interview with C-Span  Morris claimed to not be a historian; he said historians were “a different breed of cat” and that, unlike them, he was not particularly interested in politics and government. Rather, he said, he was interested in “character, narrative, the strangeness of reality.” (2)

This was not a creative choice shared with the reader; it was a deliberate breach of trust. The book was marketed as biography, not fiction. For historians — and me — footnotes represent a sacred pact with the reader, a guarantee of scholarly rigor. The backlash was severe.

Compare that with the extreme reality of Robert Caro’s biographies of Robert Moses and LBJ. 

Robert Caro’s work suggests that if we look hard enough at the world as it was, the "why" will eventually reveal itself through the "what." He builds a cathedral of facts, confident that the sheer mass of evidence will stand the test of time.  His meticulousness in pursuing every little detail and fact is legendary.

In contrast, Talese, Capote, and Morris treat the past as a draft that requires a literary finish. They argue that a list of facts is a skeleton, but only the "invention" of narrative can provide the flesh and blood. While Caro’s method offers more reliability, the literary approach often offers more resonance. Ultimately, Caro provides the history we need to understand power, while the others provide the stories we use to understand ourselves. Of the three, I find Talese’s style more honest if less reliable. In Thy Neighbor’s Wife he’s trying to convey a truth through a series of very personal montages.

I guess ultimately it’s all going to depend on the reader.  My preference is always for reliability and facts, but I can appreciate the author’s desire for some kind of general truth.  But, I will never read the Morris biography of Reagan.  A similar biography of Trump, given his penchant for prevarication, would be well-served by Morris.

Notes and Sources:

(1) The controversy surrounding Edmund Morris’s "Dutch: A Memoir of Ronald Reagan" (1999) is often cited as one of the greatest "scandals" in the history of modern biography.

After winning a Pulitzer Prize for his biography of Theodore Roosevelt, Morris was granted unprecedented access as the first authorized biographer of a sitting president. However, what he produced after 14 years of research was not a traditional biography, but a "postmodern experiment" that infuriated historians and political allies alike. Most controversially, Morris included fictitious endnotes and citations to document the letters and conversations of these made-up people, making it nearly impossible for a casual reader to distinguish fact from fantasy.  Morris claimed he was “desperate” because Reagan was such an “airhead” as to make him impenetrable.  The Reagan family was not happy.

Caro would have looked at Reagan’s "airhead" reputation and spent five years researching Reagan's private radio scripts and letters to prove exactly how much he knew (Caro eventually concluded that power is always conscious).

Morris took that same "airhead" reputation and, instead of finding more facts, decided that the only way to explain it was to invent a fictional narrator who could be as confused as he was.

Sources:

https://www.commentary.org/articles/james-wilson/dutch-by-edmund-morris/#:~:text=As%20everyone%20knows%20by%20now,man%20who%20was%20always%20an

Caro, Robert A. Working: Researching, Interviewing, Writing. Alfred A. Knopf, 2019.

https://www.theparisreview.org/interviews/6442/the-art-of-biography-no-5-robert-caro

https://faculty.etsu.edu/odonnell/readings/capote_fact_check.pdf  (Article about mixing Capote’s mixing of fact and fiction. It’s a fascinating story of how The New Yorker, famous for fact-checking, handled Capote’s work before serializing it in the magazine)

https://www.nytimes.com/2019/05/27/obituaries/edmund-morris-reagan-biographer-who-upset-conventions-dies-at-78.html (2)