Our Band Could Be Your Life: Scenes from the American Indie Underground - Michael Azerrad (2001)

Published in the waning years of nu-metal and the TRL teen pop revolution, and shortly before the NYC rock renaissance, Our Band Could Be Your Life charts the progression of 13 legendary, lesser-known bands in the US in the 80's. It's one of my favorite books and I hadn't read it since the mid-2000's. A lot of it was memorable, a couple minor paragraphs revealed themselves anew, and overall it cemented itself into its rightful position on the Best Books list. [Ed.-Or maybe not?]

It is pretty much impossible to write a thorough review of this book without skirting over a few of the bands, so it will be the subject of one of our first (and hopefully not only) podcast episodes. For now, it will suffice to mention a few quotable paragraphs and briefly run through the subjects.

Black Flag

Greg Ginn founded Black Flag in the late 70's and they cycled through a few different singers until Henry Rollins emerged and recorded their landmark debut LP Damaged. Damaged is definitely in the top 100 albums of all time and is frequently cited as the essential hardcore document...I'll just excerpt it:

"Released in January '82, Damaged is a key hardcore document, perhaps the key hardcore document.  It boiled over with rage on several fronts: police harassment, materialism, alcohol abuse, the stultifying effects of consumer culture, and, on just about every track on the album, a particularly virulent strain of self-lacerating angst--all against a savage, brutal backdrop that welded apoplectic punk rock to the anomie of dark Seventies metal like Black Sabbath." (33)

Ginn and Rollins are polarizing figures but time has been more kind to Rollins. Ginn has reformed Black Flag and released an execrable comeback. Even though What the....is terrible, it's still worth hearing. Ginn is a guitar virtuoso, probably the 2nd most iconic featured in the book after J. Mascis.  His best work is in the past, but there are still moments on the new album where he unloads that same vicious squall. 

Ginn also founded SST records which is probably the only entity that pops up in every single chapter. Apparently, he is kind of an asshole. Regrettably, Henry Rollins cannot bring himself to sing with them again, because it would undoubtedly be one of the best reunion shows out there. Rollins is loaded and has become an almost saintly figure. Everybody loves him now but he was definitely an asshole too at one point, as this chapter conveys. Ginn probably comes off more sympathetically back in 2000.

The Minutemen

The Minutemen are the 2nd weirdest band profiled in terms of sound. They're not a punk band, but they are. They're a jazz band with really short songs. They are pretty out there. Their philosophy is righteous, however, and they cut inspiring historical figures. D. Boon unfortunately left us all far too long ago in an accident that appears to have been unnecessary and preventable, but what a mark he left on this world. Mike Watt continues on with their legend and retains cache as one of the leading elder statesmen (dinosaurs?) of the scene. Of course he later played with the Stooges and Iggy is the ultimate dinosaur (after the Rolling Stones front duo). 

Double Nickels on the Dime is another SST classic album. It's not as tight as Damaged though. The Minutemen probably have some of the best lyrics of any of these bands but they also have the most threadbare sound. That may be intentional. They're not one of my favorites but they're worth a listen. "This Ain't No Picnic" is amazing, as are at least a dozen others. It's also very amusing to hear their first couple albums when they do like 10 songs in 7 minutes (Paranoid Time or The Punch Line, see "Fanatics" off the latter).

Mission of Burma

Founded in the late 1970s by the same trio that would never shift (their "fourth member" Martin Swope would eventually get replaced by Bob Weston), this band came out of Boston and was never "big." They're noteworthy in that when their story ends in this book, basically no one still knows who they are--a final tour stop in Chicago yields an audience of six. 

And yet they were one of the very first to reform, almost immediately after the publication of this book (some 17 years after their demise due to Roger Miller's hearing loss). They are Next Level, but I think their post-2000's albums are weaker than their first two (Signals, Calls and Marches and Vs. are pretty much impossible to top, in their defense). They're not the most interesting personalities. Roger Miller had tinnitus and Clint Conley had a slight drinking problem and Peter Prescott just seemed rambunctious.  Azerrad refers to Prescott screaming like a "traumatized drill sergeant." (106) This is not the only time he compares a punk vocalist to a drill sergeant, but there's a different adjective the second time.  Conley's comments on how he doesn't like talking about his own lyrics are most interesting.  But overall this is just kind of an encyclopedia entry about a band that more people should hear and know.

Minor Threat

Re-reading this book led me to revisit a lot of this music, and Minor Threat's first two 7''s (15 songs) are, I think, perfect. Damian Abraham recently commented that the Bad Brains were "uncoverable" (because no band could do a better version of their songs) and maybe that's the case for Minor Threat, but it doesn't stop me from wanting to start my own tribute band, Mid-Age Threat. 

Ian Mackaye reappears in the Fugazi chapter, but that is probably the least necessary in this book because the whole story is here. Fugazi is about doing things their own way. Minor Threat is about DC hardcore and straight edge. Also, "Straight Edge" is awesome.

Husker Du

When I first read this book, Husker Du were one of the bands that I hadn't heard, that I got turned onto, and that I loved instantly. Zen Arcade is another classic SST album (actually released on the exact same day as Double Nickels). They were heavily referenced in Try, which I had read in Fall 2003, and I came to them with some expectation of their grandeur. 

They're 1/2 of the Minneapolis scene detailed here (I would say 1/3 but Prince is only mentioned in an aside or two). They're the less accessible, more serious and visionary band of the two. I liked them a lot more before but I kind of got worn out after a while. Also Michael Azerrad wrote Bob Mould's memoir with him so this chapter sort of eventually became it's own book.  

Sadly, Grant Hart died last year, so there cannot be an actual reunion, but it seemed like there was plenty of time to do one, and who knows why they didn't. Maybe Bob Mould was like, "just see us solo, we'll play a few old hits." His new stuff is very good in its own way too, and his band can execute the old ones well too, but it's just not the same.  I hadn't heard "Eight Miles High" or "Sorry Somehow" until after I read Mould's book and my life is more complete because of them.

The Replacements 

The other Minneapolis 1/2 is probably the most accessible band in the book (or "most mainstream-sounding"). Not the case for their early work, but Azerrad notably gets off the train when they go major.  I'm reading Trouble Boys right now so I'll have more to say about the Replacements later. Suffice to say this is a good quick primer on them. An argument can be made that all of their work, save perhaps their last two albums, is almost perfect (in a very imperfect way). Let it Be is classic, but for me, "Kids Don't Follow" is their best song. 

Sonic Youth

Here we get to one of my favorite bands of all time. Admittedly, I haven't listened to them very much since their demise, and I had plenty of material to explore in the post on Kim Gordon's memoir, Girl in a Band. Who would know what the future had in store for SY back in 2000?

No one! They hit a low point with NYC Ghosts and Flowers and only went up from there, eventually imploding in divorce and sad vibes. THEY COULD STILL GET BACK TOGETHER, but I don't think anyone would find that necessary. I saw them more than any other of the bands featured here, and they played enough shows over their 30-year history to satisfy most of the listening public.

This is actually one of the most boring chapters because none of them have drug problems and though they are avant-garde and outre and experimental and no-wave and "pigfuck," this does not always translate into a compelling story. I think an argument can be made that they're "boring" musically also. Anybody who has seen them live knows that seeing them drone on a feedback jam for 10 or 30 minutes is essentially witnessing experimental free jazz-induced aural torture. Yet their power cannot be denied and they will always be one of my favorite bands, as well as one of the greatest of all time.

Butthole Surfers

Not really sure what to say about this group.  I got Locust Abortion Technician on something of a whim a long time ago, and it's okay.  They're more of a performance art experiment than a rock band.  Musicianship sounds rudimentary, and seems to take a backseat to the lyrics and overall message of the sensory experience conveyed by the songs.  They really do seem more like a traveling circus or freak-show than an indie band, and this chapter is consequently an outlier.  It is undoubtedly the most outrageous part of the book, and occasionally compelling.  

It seems like drugs are a pretty essential accoutrement to consumption of the Butthole Surfers music.  Moreover, like many of the bands in this book, their full majesty may only be adequately understood by those that saw them live.  Without getting too deeply into their personal mythologies, Gibby Haynes is their front man and his professional situation imbues their narrative with a sharp philosophical bent:

"'I can't believe we lived through that,' Leary [co-founder] continues.  'Man, I'll tell you what, I'm glad to be alive--it kind of seemed like we were in a constant state of suicide the whole time.  It wasn't like, "Gee, we're going to become successful and make a lot of money."  It was more like, "Man, we're going to have a lot of fun before the end comes and we all hit the can." I didn't think there was any way out.'
They were eventually reduced to scavenging for cans and bottles so they could turn them in for the nickel deposit.  It was quite a comedown for Haynes, who was all set to be a successful accountant just a couple of years before.  One day some prankster ran up and kicked all the bottles out of Haynes's bag.  'Gibby and the rest of us were on our knees, scurrying to collect the bottles again,' says Coffey [drummer].  'And I looked in Gibby's eyes, and he was about to cry.  It was just so pitiful--this big, strong guy like Gibby being reduced to tears because here he was on the streets of New York, groveling for bottles.  But good god, we needed those bottles.'" (287)

They do go on to command a pretty sizable fee for their concerts, and it is amazing they are one of the bands whose latter history is not covered because they got signed to a major label.  They're a curiosity for sure, and we all probably need a good dose of them given how "safe" so much artistic expression has become in recent years.

Big Black

Along with the Butthole Surfers, Big Black explored dark lyrical territory with an added dose of meanness.  Musically, however, they are much more listenable.  Big Black is basically Steve Albini, who is an island unto himself.  It is also Santiago Durango, who played in Naked Raygun and later went to law school and now works as an appellate defender in Ottawa, IL (once I used his name as a pseudonym for a legal writing assignment).  Jeff Pezzati and Dave Riley each did stints on bass. "Roland" (the drum machine) supplied the beat.  Notably this is the only Chicago band in the book.  

Most people know Albini without knowing they know Albini by virtue of the albums he's produced for other bands over the past 30 years.  The rest of us know him for his way with words and the sound he can wring out of his guitar.  I never got into Big Black until I had a friend play me his vinyl copy of Atomizer.  Atomizer is probably universally-recognized as their high watermark, but it's far from accessible.  Their first EP, Lungs, is weaker, but if you listen to Pigpile, their posthumous live album, the songs are given a new life.  Pigpile is probably their most accessible release and serves as a kind of greatest hits collection.  Its versions of "Passing Complexion" and "Cables" are highlights.

I saw Big Black play four songs back in September 2006, I think, at the Touch and Go block party.  They played last, and then segued straight into a Shellac set.  I don't remember much about it.  I go through periods of rediscovering old bands I used to like.  This happened with me for Shellac in 2014 when they came out with Dude Incredible.  I think a lot of the characters from this book have changed over the years, not just from the early 80's to 2000, but also from 2000 to 2018.  Albini is just as intimidating as ever, but he seems to have toned it down.  He still clearly does not care if you like him or not, but appears less outwardly confrontational.  He and his wife do amazing work for the homeless.  If I had to point to examples of lives well-lived, his would be up there. 

For what it's worth, of the book Albini said, "It was written by a guy who wasn't there when any of it happened.  I naturally think Azerrad's perspective is skewed by hype, publicity, and reputation, and he swallows some pretty burnished bullshit regarding motives for various embarrassing episodes.  A lot of what he says sounds like mistaken critical perspective to me, but that's inevitable given the sentences I typed right there.  It's never taken well when somebody tries to school a monkey about bananas."    

Dinosaur Jr

This is one of the few bands I knew pretty well going into the first reading.  They are just J. Mascis, Lou Barlow and Murph (Lou Barlow gets fired after Bug and Azerrad skirts over pretty much everything after Green Mind).  Lou Barlow started Sebadoh pretty early on, and they had their own impressive run of albums, but they were not exactly primed for arena rock in the same way as Dinosaur.  I saw Sebadoh in 2004 at Maxwell's and interviewed Lou Barlow for an imaginary zine that I would never put out and I asked him about reforming Dinosaur and he said they had a friend that was trying to make it happen.  SO I KNEW.  It didn't happen for another year or so, but I would get to see them at Lollapalooza in 2005 and several other times over the next ten years.  

I thought this was a kind of boring chapter on previous readings, but this time it struck me for the inter-band tension.  In view of their reformation, the anecdotes seem almost quaint.  Dinosaur stand out musically in this book because of J. Mascis and his guitar pedals: 

"And after Dinosaur's tour, a whole wave of English groups, dubbed 'shoegazer bands,' sprang up in their wake, playing folk chords through phalanxes of effects pedals to make swirling, deafening music; they uniformly adopted a nonchalant demeanor and paid lip service to Neil Young and Dinosaur Jr." (366)

I think My Bloody Valentine had been formed around the same time as Dinosaur, but their sound did evolve, and it is not unlikely that Dinosaur were an influence.  Mascis is the #1 guitarist featured in the book (and there are many great guitarists in this book).  You're Living All Over Me is classic, and Bug is pretty good, but Mascis admitted that it was the album he was least happy with.  Now, everybody says their later albums are good (Pitchfork has gone 8.4 on Beyond, 8.5 on Farm, 7.9 on I Bet on Sky, and 7.5 on Give a Glimpse of What Yer Not) and while I agree they are good, I don't think they're quite as good as those two.  I think they are better than their debut, but they're not better than Where You Been.  I think they're on par with Green Mind and Without a Sound and Hand It Over.  Then again, Barlow's presence as a songwriter elevates them into higher territory.

It's also worth noting that they are featured in The Year Punk Broke, but post-Barlow.  Their two songs were always the highlight for me.

Fugazi  

Somehow I hadn't realized that Guy Picciotto had another band besides Fugazi and Rites of Spring.  This reading turned me onto the pleasant curiosity that was Happy Go Licky.  Apart from that, it was much of the same, and not much of a revelation for a person who owned the Instrument DVD.  Fugazi certainly belong in this category, yet this chapter seems about half as long as most of the others, probably because we already know all about Ian Mackaye.  It seems to end rather abruptly.  Most of the chapters end when the band signs a major label deal or break up.  Fugazi released their last album in 2001, and there may or may not have been intimations of that experienced by Azerrad during his interviews (it feels like there were not).  This is the way the chapter ends:

"Despite the alternative gold rush, Fugazi didn't release a follow-up to Steady Diet of Nothing until June '93, when they released In on the Kill Taker, which actually made the lower rungs of the Billboard Top 200 album chart.  
Although Fugazi's legend grew even larger in the Nineties, Brendan Canty feels the band's early days tell its truest story.  'People might look at us and think we're this icon,' he says, 'but at the time there was just a couple hundred people coming to the shows and it wasn't huge and nothing had potential.  It was just important to do it.  And the fact that we all wanted to go on the road and work as hard as possible, and that we were able to, is in itself its own success story.  It doesn't necessarily have to be about getting anywhere, but about getting through the process of fulfilling your own possibilities.'" (409-410)

Way to skirt over Red Medicine, End Hits, and the current state of the band (The Argument) as of 2000.  Okay, this is definitely one of the best books, but that doesn't mean I don't have criticisms, or think maybe the writing's a little clunky at times and it's purely in the Best Books category just because it's a bunch of great anecdotes.  It reads like it should be an oral history.  Azerrad's exposition is often stark and humorous.  Sometimes he sounds like an imitation Lester Bangs when describing the particular feeling a certain song can make.  At times, these are perfectly on point.  Take this description of the guitar sound in Black Flag's "Depression":

"The songs took fleeting but intense feelings and impulses and exploded them into entire all-consuming realities.  So when Ginn wrote a chorus like 'Depression's got a hold of me / Depression's gonna kill me,' it sounded like the whole world was going to end.  'That was Black Flag: when you lose your shit,' says Rollins.  The music was the same way--blitzkrieg assaults so completely overwhelming, so consuming and intense that for the duration of the song, it's hard to imagine ever listening to anything else."  (33)

Other times, they sound obtuse, such as this description of Flip Your Wig:

"Except for the two instrumentals tacked on to the end, every song sounds like a hit in some alternate world where the rivers run with an equal mixture of battery acid and honey." (189)

What?  I digress.  Anyways, late era Fugazi is great.  Still this gives the feeling that they're a boring band that didn't really change because they're pretty much all stable, upstanding, principled and sober individuals.  

I wrote a paper in college for a Writing about Popular Music class about Ian Mackaye and Calvin Johnson and read it out loud to the class.  They all seemed to like it (it drew from material in Our Band Could Be Your Life and other things in its bibliography).  However, one or two of them suggested that Ian Mackaye was no longer straight edge, that he had allowed himself to drink alcohol.  It's pretty amazing that we still don't really know.  Ian Mackaye and Guy Picciotto today are mysterious figures that have laid low, though I believe the Evens are still active and Guy has been spotted at a Washington Wizards game.  Everyone wants them to play together again (even if it was just like what the Replacements did), and it feels almost a little bit cruel, like they don't want to capitalize, or they think it's boring and regressive to play old songs.  Maybe there's another reason.  In any case, they are notable in that they stopped pretty much when the book was published and haven't done anything since.  Almost every other band had some sort of life after 2001.  The Fugazi Live series of bootlegs perhaps counts.       

Mudhoney

Mudhoney might as well be considered a chapter on Sub-Pop.  This chapter is as much (or more) about Sub-Pop as it is the band.  Mudhoney is Mark Arm and Steve Turner, and others.  The chapter starts off being about Green River.  A lot of people talk about Green River because Jeff Ament was in it and later in Pearl Jam.  Mudhoney is framed as the precursor to Nirvana.  

The chapter is as much about Mark Arm and Steven Turner as it is Bruce Pavitt and Jonathan Poneman.  Actually the most dramatic moments involve the label and not the band.  They are treated as the sort of flagship Sub Pop band.  There is high drama in their relationship:

"'I remember seeing Steve the next day and trying to talk to him and being so at the end of my rope that I broke down and started crying,' says Pavitt.  'What hurt me more than anything was that he felt like I didn't respect him.  I didn't care if they went to a major--whatever.  But the fact that he would misread what I was trying to communicate...I was simply trying to be honest.  It was such a low point for me, just standing there crying in front of this guy.  I just said, "I'm sorry"'" (450)

At the end, Mark Arm remarks that Mudhoney may be regarded as a footnote in history.  They're probably the only band in the book that has remained active all this time.  The Lucky Ones is one of the earliest posts on this blog.   So perhaps that estimation has changed as their longevity has shown, yet they are still probably best known for "Touch Me I'm Sick."  In an interview a couple years ago, when asked how it felt to have inspired a generation of up-and-coming bands, Arm replied, "I think it would be presumptuous of me to claim that we inspired anyone."

Beat Happening

The last band in the book is one of the strangest and most influential.  Beat Happening is Calvin Johnson, Heather Lewis and Bret Lunsford.  This chapter is mostly about Johnson and K Records.  They have a lot in common with Dischord, but their bands tend to have more of a twee sound.  None of them really knew how to play their instruments very well and they rarely rehearsed.  

I used to listen to Beat Happening a lot and I don't as much anymore.  Johnson's style is confrontational and magnetic.  I was luckily able to see him once solo in a showcase of K bands.  I think I bought a copy of a Halo Benders album from Phil Elverum.

Because Beat Happening prove that you just need passion to start a band, not talent, they are one of the most inspiring bands featured.  Several of their songs are sung acapella, and Johnson once recorded an album of a bunch of random people around Olympia, WA singing.  Their musical skills were rudimentary, yet they managed to record several classic albums that became increasingly complex.  By the end of their run at You Turn Me On in 1992, they hit a musical peak and sound almost like masters of their style.

So that's it.  I really love this book.  However, I just finished reading Trouble Boys.  That is going on the Best Books list.  This took Azerrad three years of nonstop work.  Trouble Boys took Bob Mehr eight years, though he must have been doing other things too.  This is more of an overview than a deep dive, and it will be as educational to most readers as it will be entertaining.

  

The Karaoke Singer's Guide to Self-Defense - Tim Kinsella (2011)

Flashback 14 years to Fall 2000, my senior year in high school, chatting on AOL Instant Messenger with a friend I had gotten to know the previous year in an English class.  He was pretentious.  Definitely not popular but so weird and laconic and humorous that he carried his own cultural cache which others had to respect.  We started by giving feedback on college essays we were writing.  We wrote short stories and sent them back and forth (his were much better, or at least seemed to be written by a much older and more intelligent person) and he contributed a couple iconic lines to a play I was writing.  Five years later we'd stop speaking, and I wrote my first novel as a kind of response to that rejection.  He'd later describe the event as an "epic falling out" to a mutual friend, though it seemed anything but that to me (swift, no words, little explanation).

However, back in those idyllic late high school times, I was very into three bands, in this order: Smashing Pumpkins, Radiohead, and Rage Against the Machine.  The Beastie Boys and Foo Fighters, among others, took up lesser spots, but these three comprised the majority of my listening.  My friend saw a problem with this, and he did me the favor of lending dozens of CDs to me over the next few months.  Some of these bands would go on to become my favorites: Sonic Youth, My Bloody Valentine, Fugazi, and the Velvet Underground, to name a few.  But more interesting was a sub-set of music that shocked: emo.  It shocked because it did not fit in with this refined adult taste.  He was weirdly looking forward to the new Weezer album, which would be their follow-up to Pinkerton (which I never heard until I got to college).  He said Sunny Day Real Estate was emo.  He said Cap'n Jazz was emo.

I was surprised I liked Cap'n Jazz because they were so obscure.  By that point in my life honestly I had never really made the effort to give "underground" music a chance.  My friend had told me, "Just play the first track and wait til the end."  I did that, and to say it changed my life would be an overstatement, but it sort of changed my life.  Cap'n Jazz was not necessarily "underground," but I am pretty sure you could go out on the street and ask a bunch of people in Chicago (their hometown) who they were and 95-99% would profess ignorance.  So while my friend and I may be "separated," and while I was pretty mad at him for a while, I will always be grateful for making me his "project" and turning me on to indie rock, because it's been one of the few enjoyable pursuits afforded me in this miserable life.

Fast-forward to July 2010 when a re-formed Cap'n Jazz played the Wicker Park Festival and I promptly lost my shit for an hour.  Flashback to April 2002 when I went on what I considered a very romantic date to an Owls concert at North Six in Brooklyn and sat on the bleachers and watched the members of Cap'n Jazz play weirder songs, but still catchier ones than Joan of Arc put out.  Fast-forward to December 2005 when I went alone to see Make Believe play with Islands at Beat Kitchen.  Fast-forward to some other time in 2006 or 2007 when I saw Make Believe at the Wicker Park Festival.  Fast-forward to July 2014 when I saw Owls play at the Wicker Park Festival on the heels of their well-received 2nd album, 13 years in gestation.

It's possible you're reading this and wondering what the hell this has to do with a book--but more likely, if you know the name of the author, you know why I started the review off this way.  Tim Kinsella's reputation precedes him, and with his recent literary output as well as the new seemingly more mainstream Owls record, it may appear he is in the process of shaking that off.  However, if the Owls performance three weeks ago is any indication, he will never stop being obtuse, inscrutable, and defiantly anti-establishment.

As previously mentioned here, I saw him read at the Printer's Row Lit Fest (more than 2 months ago already - sad that the summer is wearing out).  He read from his second novel, Let Go and Go on and on, and I approached him afterwards and told him I didn't have the money to buy a book, but would he sign my journal?  He graciously complied and I told him I would be reading "the Karaoke Singer" soon and I review every book I read and would he like to see the review?  "No...I don't really try to pay attention to reviews."  I wouldn't pay attention to reviews either with the way he has been skewered by Pitchfork in the past (The Gap at 1.9, How Can Any Thing So Little Be Any More EP at 2.2, So Much Staying Alive and Lovelessness at a nearly-favorable 4.2, In Rape Fantasy and Terror Sex We Trust improving to a 5.0, Joan of Arc, Dick Cheney, Mark Twain... at an almost-respectable 5.3, Joan of Arc: Presents: Guitar Duets at a near-median 3.5), but it seems like he knows how to get better reviews when he's not trying to be experimental or engaging in the practice of obfuscation (Owls' S/T record came in at 7.0 and Two got a 7.3 and the two Make Believe albums that were reviewed came in between Joan of Arc and Owls, generally).  Pitchfork never reviewed Analphabetapolothology but there is no way they could give it anything less than an 8.7, if not a 10.  It's just ridiculously inspired and influential and if you haven't heard it already and are even the slightest bit aware of "emo" as a genre (even if you hate what it represents), you owe it to yourself to at least listen to "Little League" (and especially the end of it).

So Tim Kinsella is carrying a lot of baggage going into publishing his first novel, and it seems like his fans will stick with him no matter how far out into left-field he wants to stray.  But books and music are two different mediums, and I am happy to report that The Karaoke Singer's Guide to Self-Defense is "more mainstream" Kinsella, and that people who might be completely unaware of his indie icon status over the past 20 years will probably find this book intriguing--if not exactly a masterpiece--provided they can get past page 100.
***
This is because up until page 100 the reader may find themselves lost, and unable to figure out just where the narrative is heading.  However, around that point it all begins to make sense.  Then the book shifts to "Part 2" and some confusion is likely there as well.  But I will try to sum it up for you without spoiling too much.

This book is probably 45% about a family, 35% about a bar, and 20% about two random characters.  The family is comprised of Mel, Will and Kent, three siblings who have come back together for their Nana's funeral.  Ronnie is their mother, Dell is their estranged father, and Joe is Ronnie's new boyfriend.  Kent works at a toothpaste factory and is married with kids.  Will is the youngest of the three and has had problems in the past with fighting.  Basically, he went through rehab because he got into fights as his hobby.  Mel works as a bartender at The Shhh...

The Shhh... is a bar owned by Norman, who inherited it from his father Rich.  Norman is the closest thing this book has to a villain, and a certain proposal made towards the end of the book is the closest it comes to reaching a "climax":

"Mel understood.  She would tell Will everything if Kent weren't around.  How she hid the pregnancy at first so she could keep dancing.  How she could've had the baby if she could have kept dancing but couldn't keep dancing if she had the baby--Goddamn it, maybe she probably should've had the kid.  How Norman had been squeezing her and couldn't Will maybe do something, even just scare him, just this once?
But Kent was talking about his remortgaged subprime tax break insurance kid's sports team past glory with a snappy comeback Florida getaway I prefer a bargain or something.  It was getting late.  Will lit a cigarette." (248-249)

A side note: the book starts at a scene at The Shhh... and is also the closest the book comes to being about emo or punk rock because Cap'n Jazz has a song titled "Planet Shhh..."  So what I'm trying to say is, you're not getting a traditional novel here, nor some kind of thinly-veiled autobiography about life as a relatively obscure indie rock icon (which would be awesome).  However, there is a fair amount of material on the art of karaoke (mostly from Norman, who specializes in it) and there is this passage about another character, Gus.  Gus runs the kitchen at The Shhh... and he is also Mel's roommate and a poet:

"Too old to have really been a punk, Gus turned thirty in 1978, but loved Public Image so much that he began every karaoke session of his life with the same disappointment, looking up 'Public Image' by Public Image Limited.  No karaoke place ever had it.  Though its two note riff with no surprises was perfection itself to Gus, it would, he had to admit, be a very tough song to sing karaoke.  The 'melody' was all in the sneering attitude.  Except for the repetition of the words 'public image,' few lyrics were comprehensible after the opening line, 'You never listen to a word I'm saying.'" (74)

Side note: this is the 2nd review on Flying Houses in recent months to reference PiL.  I liked 85A, but I don't want to compare the two.  While they were both debuts and published not too far apart from one another, they're completely different books.  However I would have liked this book better if it had taken place in Chicago.  I do not know why Kinsella set the story in Stone Claw Grove, MI rather than Chicago, but apparently Stone Claw Grove is a fictional town.

But maybe the setting is why I liked this book in the first place: it is not a sugar-coated version of reality like so many other novels.  The characters are distinctly working class, and the disappointments in their lives are palpable and ring true.  In other words, reading the book as an underemployed attorney with a debt well on its way to six figures, I felt less alone.

Kinsella recently taught a class in experimental fiction at the University of Chicago, and that appointment was probably based on the strength of this novel.  It is "experimental," but it's straightforward enough that I could see it making a cool movie.  It's experimental in the sense that the action is constantly flipping backwards and forwards in time.  Primarily it takes place before and after Nana's funeral, but it jumps back to 9 months before the funeral (i.e. around the time Mel got pregnant) and other earlier points in time as well.

Another "experimental" aspect is the way Kinsella writes in the third person, but manages to imbue the narration with the personality of the character that is the focus of a particular section.  This is also a confusing trope at first, but by page 100, the reader should be able to figure out what is happening.  As mentioned, most of the characters are working class and the narration is appropriately down-to-earth, but Sarah Ann has a more intellectual inner monologue that makes her a very interesting but underused character.

The same can be said for the other two random characters, Wallace and Jesse.  I haven't read any other reviews of this book so I may be alone on this, but to me the chapters about Wallace and Jesse are the strongest in the book.  I'm just not sure they fit in all that well with the rest of the story.  Regardless, they are compelling.  They are not totally horrifying, but they are disturbing and sometimes deeply so.  Oddly enough, they are the most topical parts of the book, as the last few years have seen several young adults in the news break free from their captors who basically tortured them by forcing them to be their companions.  Wallace eventually does the "right thing" but the wrong way, and the depiction of Jesse's reaction almost made me want to break out in tears.

All throughout, the writing is strong, and I may have only picked up one typo.  Kinsella read from Let Go and Go on and on at the Lit Fest this year.  He sat in front of me with his mom, and then he got up to read and nobody seemed to laugh or "get it."  He was reading something about cockfighting and people living out of their car.  It didn't seem as "mainstream" as this book, but I am really glad I read this and may read that in the future.  Nobody may ever "get" Kinsella, but I feel like I understand where he's coming from a little better after reading this book.  I don't think I'm alone in hoping that Cap'n Jazz reforms yet again (I read one shocking interview where he said Owls' Two was almost released as the 2nd Cap'n Jazz album--which seriously would have fucked with everyone), but so long as Kinsella remains a stalwart on the indie publishing scene in Chicago, I can deal (fingers crossed that I get a copy of S/M out to him and that he's tickled by the fact that a scene in the novel takes place at a Make Believe concert and consequently considers me worthy of Featherproof's support).

The Brethren - Bob Woodward & Scott Armstrong

"Justice Brennan, 

take out some insurance on me, baby, baby

it's just the i'm busted and dripping, 

my sorry lungs are all leaking, 

it's all over, it's all over i said, 

the last fair deal going down. 

you let your gown to the ground, 

but i'm not waiting around until the kiss-off. 

wasn't it you who said yeah you can shoot me lightly, 

but ask me to be excused, i won't go die politely

anytime that you want you can shoot me lightly,

but ask me to be excused, i won't go die politely. 

justice brennan, i know it's not your fault,

no baby no baby. 

it's just that you're busted and dripping, 

your sorry lungs are all leaking, 

it's not over, it's not over, i said. 

here comes the kiss-off."

-Fugazi, "Dear Justice Letter" 

This song was written at the end of the Supreme Court term in 1990, after Justice Brennan retired.  He had served more than 33 years on the Court, and was 84 years old at the time of his retirement.  He died seven years later.  It would be quite uncharitable for Fugazi to claim that Brennan quit too early, and indeed I do not think that is the point of this song.  Rather it appears to be a lamentation of the reality that the Court now had replaced Brennan, one of the strongest liberals in the history of the Court, with Souter.  Now Souter was somewhat unpredictable--but President Bush appointed him on the theory that he would be a "good right-wing vote."  Clearly this was not the result in many cases, but the Court appeared to be deprived of all its hard-line liberals: only Thurgood Marshall was left.  Harry Blackmun had skewed liberal as time progressed, and John Paul Stevens was essentially liberal, but by no means a "solid vote" for that side every time.  Sandra Day O'Connor was, like Souter, a Republican in name but perhaps the most ideological "centrist" on the Court.  While some of this may be interesting to general readers, this post is not intended as political commentary.  It is a review of The Brethren, which concerns a different Court--the Warren Burger Court from the 1969 through 1975 terms.  Now, I am studying for my First Amendment Law exam on Wednesday and some may view this review as a waste of precious studying time, so I hope you will forgive me if I skew heavily in favor of First Amendment cases so that, when I return this book to the library, I will at least have this post as a sort of "back-up file."

The first and most obvious thing to mention about this book is that it is written by 1/2 of the notorious duo responsible for All the President's Men, as well as for breaking the Watergate Scandal story in The Washington Post.  And it is quite wonderful that Bob Woodward has stayed active in the arena of political reportage.  It is always interesting to see what he has to say.  I must concede that I read All the President's Men when I was a senior in high school, for a course in journalism, and that I was unable to appreciate most of the action that took place during those tense months in Washington.  I must also concede that I am a huge fan of the film Nixon and that I am still somewhat mystified by the extraordinary distaste that the vast majority of American society has for that former President.  Indeed it appears to me that he had no reason to lose the 1972 election, had no reason to "cheat," and was simply a rather insecure candidate who was poorly advised. Frost/Nixon paints quite a different portrait of the man than the Oliver Stone biopic does.  But again, we must address the book at hand, not a political situation.

This connection between these two books is significant, however, because Woodward & Armstrong express rather uncharitable views on Warren Burger.  They glorify Earl Warren as a hero, and indeed so does almost everyone I have ever heard utter his name.  By all accounts, he was perhaps the greatest Chief Justice in the history of the United States Supreme Court.  And after reading The Brethren, most readers would be easily inclined to view Warren Burger as the worst Chief Justice in the history of the Court.  The irony is not lost on others, either, of their progression: Earl Warren - Warren Burger.

The Introduction to this book states that "[m]ost of the information in this book is based on interviews with more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court.  Chief Justice Warren E. Burger declined to assist us in any way." (3) They go on to state that they only make characterizations of the Justices after having several individuals from each chambers confirm that a particular view was generally held.  But the most striking thing about this book is the body blow it deals to Burger.  

Burger is absolutely torn apart nearly every single time he is mentioned.  While the events of this book may be accurate, they are certainly shocking.  And I have to believe that some of the statements are somewhat incredible.  There is one in particular that I recall being quite ridiculous (actually taken from the Memoirs of Richard Nixon):

"'Speaking in the greatest confidence, Mr. Chief Justice,' Nixon replied, 'I am realistic enough to know that if this operation [the U.S. Military incursion into Cambodia] doesn't succeed--or if anything else happens that forces my public support below a point where I feel I can't be reelected--I would like you to be ready to be in the running for the nomination in 1972."  (79)

Now perhaps this statement is in fact true, but one needs to point out the obvious: it is way better to be a Supreme Court Justice than a President!  I do not understand why millions of children across this nation are told by their parents that, "You can do anything--you could even be President of the United States one day!"  Now true, the President is ultimately the #1 most public figure in the Nation and the most powerful standing alone, but it just goes to show the irrationality of people.  It is an incredibly difficult job where you are subject to personal attacks and probably go gray and age much faster than normal people do.  You are in the limelight.  You get to live in the White House, and that is cool, but you also have to do all of these press conferences and take responsibility for all of the actions of government--some of which you have absolutely nothing to do with whatsoever.  Plus, the longest you can stay in the job is 8 years.  Afterwards of course, you are regarded as a celebrity.  But look at every President since JFK:

JFK = beloved, and assassinated.  

LBJ = did not seek second term, widely reviled.  

Richard M. Nixon = resigned.  

Gerald Ford = not viewed all that charitably, mostly remembered for his wife Betty.
Jimmy Carter = sometimes regarded as one of the "weakest" Presidents in history.  

Ronald Reagan = remembered for economic deregulation and Iran Contra Scandal, even blamed for 2008 Financial Collapse.  

George H.R. Bush = did not get elected for a second term (though history has been pretty kind to him, I must say). 

Bill Clinton = Impeached, and though fondly remembered, one cannot forget the rank arrogance of carrying on an affair while in that post--though I do credit him for opening up (later) and being honest.

George W. Bush = Often called the worst President in history while he was in office for 8 years, always mocked for his stupidity.

Barack Obama = a real triumph for America as the first black President, but always questioned about his citizenship, and bashed to all hell regarding his solution to the 2008 Financial Collapse.

By contrast you have the Chiefs since then:

Earl Warren = beloved by every account.

Warren Burger = A question mark, but for the extreme criticism in The Brethren.

William Rehnquist = Another question mark, but for some criticism in The Brethren and The Nine.

John Roberts = Did not receive the blame for Citizens United (Anthony Kennedy did), got some glory for the Affordable Care Act decision, stumbled through Obama's first inauguration--too early to tell--may serve as Chief until 2035 or later.

I think it is quite clear that it is way better to be a Supreme Court Justice than a President, and had Burger actually tried to run for President, it would have been a horrible career decision.  My point is that more parents should impress upon their children that "one day, they could even be a Supreme Court Justice!" --NOT the President!  

Moving on, I do not want to discuss how much this book disses Justice Burger, but I do want to talk about my favorite Justice in it: Justice Douglas.

Justice Douglas (along with Brennan, it must be admitted) is one of the greatest Justices in history.  He joined the Court in 1939 as the replacement for one of the other greatest Justices in history (Louis Brandeis) and he served until 1975.  He currently holds the record for the longest tenure of anyone.  He was an environmentalist before it became fashionable, loved the national parks, and most controversially was married four times (the last two being in his 60s to girls in their early 20's).  Whenever his name appears in The Brethren it is almost always automatically amusing.  One is struck by his powerful beliefs and unflinching views.  It's quite possible that he was the most hardcore liberal that has ever been on the Court (and thus comprised a powerful troika with Brennan and Marshall).  On the subject of courtroom decorum in a case involving a Vietnam War protest outside the Supreme Court building, Woodward & Armstrong reported:

"Douglas intended no delay.  He prided himself on being the fastest writer on the Court.  He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions.  His clerks often called these 'plane-trip specials,' because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement.  At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return.  The other Justices all acknowledged Douglas's brilliance and incredible productivity, White called him a 'paper factory.'  Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.

But the others also had come to wonder if Douglas's opinions--often disorganized treatises on sociology rather than the law--did not sometimes fall victim to his unrelenting pace and curiosity.  Declaring 'there will be no errors in my opinions,' Douglas, just the same, refused to allow his clerks to edit them." (63)

While we are on the subject of Douglas and his clerks, it bears mention that he often treated them poorly, which is quite amusing.  His clerks for the 1972-1973 term--Janet Meik and Carol Bruch--were eviscerated by him.  The book explains that Douglas's abuses of his clerks were "legendary":

"The following term [1969-1970], Douglas told one of his two clerks that he would be fired except for the fact that he was a nice boy and that he was so incompetent that he would not be able to get another job.  'I can get better legal advice from drunks in the gutter,' Douglas said."  (241)

Bruch in particular takes a lot of abuse from Douglas.  "'If you're in over your head, you can leave and I'll get someone else,' he said, hanging up in a fury." (Id.) After he wrote a cryptic note on one case that appeared to ask her to apply an area of the law that had nothing to do with the case, she said to him, "'Excuse me, Mr. Justice, I've been looking at this note and I'm afraid I don't understand it.'  

'I'm not running a damn law school,' he barked." (242) 

Later, I personally think she makes a huge mistake when she leaves him a note that says, "I'm very sorry I made a mistake on this case.  I'm sure there will be other times this year when I will make other mistakes.  However, I've found that civility in professional relationships is most conducive to improved relationships.  You can afford to be basically polite to me."  (Id.)  Later in the week, he says to her, "I gather that you think I'm not civil.  Nothing that I ever say is personal.  This is the rough-and-tumble of the law as practiced in courtrooms daily.  If my law clerks can't take it, I don't want them." (Id.)  Then she responds, "I don't need unnecessary sarcasm, Mr. Justice."  (Id.)

Their relationship further deteriorates and he begins ignoring her.  I will stop writing so much about Douglas now but I must mention the way the clerks are portrayed in this book.

They are portrayed as the "real writers" of the opinions--particularly of Marshall's.  And I often find the characterizations of them annoying and immature.  I am particularly upset that such clerks find their way into this position.  These are people that generally go to the top law schools and then seem to walk around the place like they own it.  If I were so lucky as to even be considered for a position such as that,  I would always tread cautiously--and never talk back to Douglas!  I realize things were different in the late 1960s and early 1970s, but the recent law grads of those days act more like the recent college grads of today.  Particularly lame is when they form a choir for a holiday party and sing a song about how Nixon appoints new Justices.  I cannot say anything more on the subject.

Brennan deserves to have more of a place in this post than I am giving him, but I have grown tired of thinking about this book as a whole.  It is simply worth noting that Brennan emerges as the most powerful member of the Court, and the angriest.  While Douglas's retirement would be worth noting (as would Justice Black's) I simply do not want to spoil those for the reader, as they are some of the most incredible and moving scenes in the book.  Brennan, however, remains and there has probably not been anyone as liberal as him on the Court since his retirement.  One could say that Justice Ginsburg, or perhaps Sotomayor or Kagan, approach him, but it is too early to tell for the latter two.  Justice Stevens appears at the end of the book as Douglas's replacement and is referred to as the "wild card." While I still consider Stevens to be one of my favorites of all time (indeed the one person living that I would most like to have dinner with, if I could) and was always quick to point out that he was the only one on the Court in the 2000s not to go to Harvard or Yale--I was somewhat dismayed to find that he graduated #1 in his class (from Northwestern).  Clearly, no one from Brooklyn Law School will be appointed to the Court anytime soon (except for maybe a faculty member that taught here).  

It is somewhat ironic that the book considers Brennan something of a "mouthpiece" for Marshall.  "Marshall parroted Brennan," (442) according to the unattributed thoughts of Justice Stevens, which is one of the more confusing literary techniques Woodward & Armstrong use.  It has been suggested that Brennan was something of a "reverse-Scalia" -- extremely vocal and angry -- but super liberal rather than super conservative.  And the irony appears when Marshall is replaced by Thomas, who often dispelled accusations of being Scalia's "parrot."  It's a perfect example of the moment the Court changed--not when Brennan retired, but when Marshall retired.  It hasn't really been the same since, and some people wonder whether the composition of the Court will change in the next four years.  It seems doubtful that Scalia or Kennedy would be willing to retire before 2016, but I would not be all the surprised if Ginsburg retired during Obama's next term.  There will be a very interesting same-sex marriage case next year, and though I didn't mention this above, one of the more amusing aspects of The Brethren is the way that the Justices simply do not want to retire because they love their job too much.  Once you're in, unless you have a nervous breakdown and just can't take it or have some sort of scandal (both of which are mentioned in this book), they'll probably need to wheel you out.  

The Brethren, like The Nine (reviewed here http://flyinghouses.blogspot.com/2012/01/nine-inside-secret-world-of-supreme.html) is quality reading, particularly for law students.  I would say that it is a more entertaining book than The Nine and they are pretty similar in length.  The Nine is just denser, and deals much more heavily in the appointment process, as well as the Bush v. Gore decision.  The Brethren, predictably, deals heavily in the Nixon v. United States decision--but it also discusses the voting strategies of far more cases, and is thus more revealing (if not useless) to the law student who happens to be studying them.  However, The Nine is much more "respectful" to the Justices whereas this book treats the Justices more like "human beings" or "mere mortals."  This is a nice perspective to have, but I can't help but feel that this book, more than The Nine, makes the Court appear more petulant and politically-interested than interested in applying a coherent body of law.  Regardless, it is a great book, and I am very glad it was written.  The only thing that remains to be made is a Ken Burns documentary on the Supreme Court.  That would be awesome.  

Appendix

This is for purposes of studying for the First Amendment Law.  It will mention every case that we have studied in the particular section of our course that is mentioned in this book.  Caution: there is a lot about the obscenity cases in this book so I will do my best to keep the passages limited to the essentials.

Gooding v. Wilson (1972) (this is nothing substantive: just an example of Burger's case assignment mischief...)

"In another case, the Chief had assigned a case in which he and Blackmun were a two-vote minority.  Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan."  (170)

[Note: Brennan actually did end up delivering this opinion--Burger dissented, stating that, "It is not merely odd, it is nothing less than remarkable that a court can find a state statute void on its face, not because of its language--which is the traditional test--but because of the way courts of that State have applied the [fighting words] statute in a few isolated cases, decided as long as 1905 and generally long before this Court's decision."]

[When Rehnquist and Powell join the Court after Black and Harlan retire, the case emerges again]:

"One 4-3 case involved an antiwar demonstrator who had cursed at a policeman (Gooding v. Wilson).  The Chief said it should be re-argued.  

Douglas was sure the vote had been 5 to 2.  'Who was the third vote to reverse?' he asked.

'White,' the Chief replied.

His jaw jutting out, White stared at the Chief.  No, he was with the majority, he stated.  The issue of reargument was finally dropped."  (177)

Roth v. United States (1957)

"The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place.  And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted a definition, was Bill Brennan.  In a 1957 case (Roth v. United States), Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned." (194-195)

"Douglas knew that Brennan had developed his definitions to protect serious literary works--James Joyce's Ulysses, William Faulkner's Sanctuary, Erskine Caldwell's God's Little Acre--from overzealous prosecutors and judges.  Under Brennan's definition, material was obscene if, to 'the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.'  But lower courts continued to ban material Brennan thought was obviously not obscene.  For a plurality, in a 1966 opinion (Memoirs of a Woman of Pleasure [Fanny Hill] v. Massachusetts), Brennan had next tried a formulation holding that material had to be 'utterly without redeeming social value' before it could be banned.  This placed the burden on prosecutors to prove that nothing in a work redeemed it.  Pornographers then took to citing medical reports or throwing in lines from Shakespeare to protect the product." (195) 

Stanley v. Georgia (1969)

"In Douglas's view, these efforts by the Court to define obscenity were absurd.  The only remotely rational development, he felt, had occurred in a 1969 case (Stanley v. Georgia) when Marshall had said obscenity was largely a personal privacy question.  He had written, 'If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he must watch.' 

As defense lawyers attempted to expand the logic of Stanley, hundreds of cases began working their way up the Court.  If there was a constitutional right to possess obscene material in one's home, then there was a right to buy it.  If there was a right to buy it, there was a right to sell it.  If there was a right to sell it, there was a right to distribute it.  If there was a right to distribute it, there there must be a constitutional right to write, photograph or film it.  Or so their logic went.

If the privacy logic could be extended all the way, the lawyers argued, the distinction between obscene and not obscene would become largely irrelevant.  There would be no need to define obscenity as long as people had the right to see and read what they wished.  But Brennan had dissented from Stanley, and during the previous two terms had refused to provide the liberals a crucial fifth to extend the logic.  Now, with White shifting and two new Nixon Justices taking their seats, Douglas feared that a majority modify Brennan's old definitions and declare a war on pornography--and soon on free speech."  (195-196)

Miller v. California (1973) -- Decision to pass over to the next term

"The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court.  He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law.  Their lack of agreement gave him an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years.  There had to be a way to suppress pornography and still protect free speech, he felt.

The January 21 conference, with Powell and Rehnquist now in attendance, was a test of endurance.  By the time the Justices got to the three obscenity cases, their energies had measurably faded.  The first case (Miller v. California) was the most difficult, in that it raised questions about the definition of obscenity.  The conference put it aside and turned to two cases that involved extending the Stanley privacy decision (* U.S. v. Ortito and U.S. v. Twelve 200-Foot Reels of Super 8 mm. Film).

The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly.  Stewart and Marshall were ready to vote with him to extend the Stanley decision to cover both cases.  To Douglas's surprise, Powell also joined them.  In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas.  One of their recommendations had been to extend the Stanley privacy doctrine.  Powell was willing to follow the advice, at least tentatively.  Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.  

The Chief waited and spoke last.  He was willing to go along in one case, perhaps both.  'I'll try my hand at the opinions,' he said." (196)

Paris Adult Theatre v. Slaton (1973) 

"Burger also shared Brennan's concern about protecting children from pornography.  'I consider the state free to make a serious felony out of any conduct that permits access to minors to nonprotected material,' he said.  Most importantly, he would be willing to extend the Stanley logic to permit importing pornography for private use.

Brennan was still partially encouraged but wondered what the Chief had in mind.  Surely his draft was not ready for publication.  He went to see Burger to talk over the situation.  

The next Monday, June 19, the Chief sent around a simple note.  'In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion...We will discuss this at the June 22 Conference.'

Brennan reassessed the situation.  White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene.  If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.  

To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.

One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography.  The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensive advertising outside, and both of which refused to admit juveniles.  If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chief's redefinition of obscenity.  

The conference on June 22 readily agreed with Brennan's suggestion to take the additional cases (* Kaplan v. California; Paris Adult Theatre v. Slaton; Alexander v. Virginia) and to argue them early in the next term.  They also put over the three cases before them.  They now had a package of eight cases that would present virtually every unanswered question in obscenity law." (203-204)

"Two weeks into the term, the Court heard the first of the obscenity cases.  These were three cases that Brennan wanted considered first.  They posed the question of whether states could ban consenting adults from walking into a theater or store and buying or seeing what they wanted and expected to see. There was no exposure of books or movies to unwilling viewers or children.

The first case involved the Paris Adult Theater in Atlanta, whose owner had been convicted of showing the X-rated movies Magic Mirror and It All Comes Out in the End.  At oral argument on October 19, the attorney for the theater noted the Chief's frequent public complaints about the Court's heavy case load.  One way to reduce it, he suggested, was to permit the 'controlled' sale and showing of sex-oriented films.  The courtroom erupted in laughter.  The Chief did not smile."  

JK: There is more about Miller v. California, but I grow tired of transcribing so much and worry that this may be the most flagrant violation of copyright that I have ever proffered on Flying Houses, so I will move onto other cases.

Cohen v. California (1971)

"Harlan's view of the First Amendment was not always so expansive.  Paul Cohen, a young antiwar protester, had been sentenced to thirty days in jail for disturbing the peace by wearing a jacket with the words 'Fuck the Draft' inscribed on the back.  Harlan termed this case (Cohen v. California) a 'peewee.'  

.....

Black found the conviction of Cohen so outrageous that he insisted that the Court summarily reverse the conviction without even holding oral argument.  Harlan's strong opposition prevented the summary reversal, and only reluctantly did he agree to have it argued.  

Many clerks, however, saw the case as symbolically important.  Sentiment against the Vietnam war was at its height.  Many of the clerks opposed the war, and felt a little guilty that they had signed up for a year with an establishment institution like the Supreme Court.  Most agreed with the sentiments on Cohen's jacket, and one way or another many had themselves avoided military service.  In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken anti-war activist Jane Fonda.  

The antiwar movement was part of the clerks' culture, and its slogans part of their politics.  The obscenities used to denounce Vietnam and the draft were important political expressions.  Clearly, if the First Amendment protected speech of any kind, it protected political speech.  Abrasive, outrageous expressions were sometimes called for.  'Fuck the Draft' was hardly the most extreme.  A decision against Cohen, in essence banning 'Fuck the Draft' from the jackets and posters of the antiwar movement, could have deeper ramifications, some clerks believed.  Police throughout the country were looking for grounds on which to curtail the activism unleashed by the war

....One of the clerks [in Stewart's chamber] fashioned a makeshift patch combining the themes [of flag sculptures and jacket slogans] and put it on the back of his suit coat.  'Fuck the Flag' it said.  He wore it for several hours around the chambers before deciding that he did not want to test the Court's tolerance for political speech in its own building." (128-129)

"The ritual that Harlan enjoyed most was sitting with his clerks on Thursday afternoons, reviewing the cases argued that week in preparation for the Friday conference.  The afternoon of February 25, the clerk he had assigned to the Fuck-the-Draft case reviewed the details at length, pointing out that according to Harlan's prior opinions, the slogan was clearly protected by the First Amendment.  Cohen's conviction was for the content of the message on his jacket, for his opposition to the war, and not for some disruptive conduct.  

For Harlan, and for all of his colleagues except Douglas and Black, there were exceptions to what was protected speech under the First Amendment.  The clerk went down the list to assure Harlan that none was involved.

Did the words advocate an insurrectionary act--the overthrow of government or interference with the draft?  No, they merely conveyed Cohen's view of the war and the draft.

Did the words immediately endanger observers--like shouting 'Fire!' in a crowded theater?  No, of course not.  

Did the words incite a noisy disruption?  No, the only one in the courthouse apparently bothered by them was the arresting officer.

Did the words provoke a violent reaction from observers, so-called 'fighting words?'  No, again only the arresting officer seemed concerned.  He had tried and failed to get the judge to hold Cohen in contempt.  

Were the words 'offensive' to unconsenting viewers?  This was the most difficult problem for Harlan.  Some passersby in the corridor might have been offended.  But they could have limited their exposure by moving away, the clerk argued.  The only captive audience would have been the one in the courtroom where Cohen appeared, but there he folded his coat over his arm, so that the spectators were not exposed.  Moreover, the clerk reasoned, a certain amount of 'offensive' exposure had to be expected in public.

....

At conference the next afternoon, the Chief referred to the case as the 'screw the draft' case.  He voted to uphold the conviction.  To everyone's surprise, Black's position had changed drastically.  He did not offer his absolutist position.  Instead, he agreed with the Chief: this was a question not of political speech but rather of the pernicious use of a vile word.  Cohen's jacket slogan was not protected 'speech' but unprotected 'conduct,' he said.  Cohen could be prosecuted.

With his most boisterous drawl, Black claimed that he was not deviating from his absolutism.  Conduct was different from speech.  His favorite example was picketing a courthouse.  It was unacceptable conduct, not speech.  People could not 'tramp up and down the streets by the thousands' and threaten others, for example. 

Douglas and the other First Amendment liberals--Brennan, Stewart and Marshall, who grumbled that it wasn't a case worth 'giving blood on'--all lined up in favor of reversing the conviction.  White and Blackmun sided with the Chief and Black.  

Harlan provided the days second surprise.  He had thought it over, and he was not leaning toward overturning the conviction.  But he was still not sure.  He wanted the case put over for a week.  He needed more time to consider it.  

The others agreed.

Douglas's clerk joked about how the 'magic word' set off such severe reactions in the 'Bad B's,' as he referred to Black, Burger and Blackmun.  Douglas was disappointed that Black had deserted his long-standing First Amendment position.  Perhaps Black was simply too old to understand these issues anymore, to pursue the reasoning necessary to draw consistent parallels.  But Harlan's hesitation offered little encouragement.  He would likely end up voting to uphold the conviction.  He too was out of touch with the country.  The key would be Black, Douglas figured." (129-131)

JK: This last quote may set a record for the longest single passage on Flying Houses.  There is more, but I believe this is enough.  But it is worth noting that Blackmun, Burger, and Black dissented from the majority in this case (which reversed the conviction), and White joined paragraph two of the dissent (written by Blackmun) which read, "I am not at all certain that the California Court of Appeal's construction of section 415 is now the authoritative California construction....Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of [a subsequent] decision by the State's highest tribunal.  (White did not join paragraph one of the dissent which reads "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech...the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.  As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary."  

Alright, that is enough on Cohen!

Buckley v. Valeo (1976)

"Also pending was a challenge to the massive federal campaign law, which had been enacted in 1974 to reduce the influence of big money and large contributions in political campaigns (Buckley v. Valeo).  The law had four major provisions.  It provided for the financing of presidential campaigns from federal tax revenue; imposed elaborate contribution and campaign-expenditure reporting in which contributors were publicly named; limited individual campaign contributions to $1,000; and set strict limits on campaign spending by candidates.  

Senator James F. Buckley, a conservative Republican from New York, and Eugene McCarthy, a liberal Democrat from Minnesota, had led the legal challenge, arguing that the limitations abridged free speech.  The case presented more than twenty constitutional questions."  (395-396)

[JK: As you can imagine, I am exhausted at this point, having finished this actual book at 9 AM this morning, and having taken an hour long nap in the napping room of the library, and it being 3:35 PM now]

"Douglas returned to Washington at the end of November.  When he came to his chambers, he buzzed for one of his clerks.  No one came.  He pushed the buzzer again.  Still no one.  It was strange.  They always came running.  He pushed longer and harder on the buzzer.  

Marty Bagby, Douglas's senior secretary, finally appeared at the door.

'Where are the clerks?' Douglas angrily demanded.

'There are no clerks,' she stammered.  The Chief Justice had reassigned his clerks while he was gone.  

Douglas glared at her.  No clerks?  He was a Justice.  He had work to do......

Douglas had been a full member of the Court when oral argument was heard on the campaign finance law.  He saw no reason not to participate in the decision, since his replacement would not be able to take part.  He decided to write an opinion......."  (396-397)