From The Law and Politics Book Review

Vol. 9 No. 3 (March 1999) pp. 109-112.

 

CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT by Edward Lazarus. New York: Times Books, 1998. 576 pp. Cloth $27.50. ISBN 0-8129-2402-9.

 

Reviewed by Richard A. Glenn, Department of Political Science, Millersville University, Pennsylvania.

 

Of all the institutions of the federal government, arguably least is known about the Supreme Court. That is in large part due to the fact that, for over two hundred years, the Court has made its decisions in absolute secrecy, or, as Professor Fowler Harper often called it, behind the "Purple Curtain." The Court’s deliberative process—its debates, tentative positions, preliminary votes, opinion drafts, negotiations, confrontations, and compromises—is hidden from public view. Thus, twenty years ago, to counter the dearth of information on the Supreme Court, Bob Woodward and Scott Armstrong co-authored THE BRETHREN, the first detailed, behind-the-scenes account of the U.S. Supreme Court in action. For many non-academics, this work serves as the primary basis for "understanding" the operations of the Court.

Now, Edward Lazarus, a federal prosecutor in Los Angeles, seeks further to enhance our understanding of the Court in CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT. The methodology here differs. THE BRETHREN is based upon interviews with justices, law clerks, and other court personal; published and unpublished documents, including the diaries of some justices; and other court memoranda. CLOSED CHAMBERS is written by an insider who clerked for Justice Harry Blackmun during the October Term 1988. Hence, the subtitle, THE FIRST EYEWITNESS ACCOUNT. It is worth noting that "eyewitness" accounting of this sort is rare among former Supreme Court clerks. Lazarus defends his work by assuring the reader that he does not disclose any information to which he was privy solely because of his clerkship. All information reported within, he maintains, was confirmed independently in confidential interviews or published material. (The subtitle, nonetheless, is still somewhat misleading. In 1974 Harvie Wilkinson III, now Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, had published his account of clerking with Justice Lewis F. Powell.)

CLOSED CHAMBERS focuses on three nationally significant, highly divisive, and largely emotional issues: the death penalty, abortion, and affirmative action. Lazarus, with a healthy "not-too-cursory and not-too-complicated" approach, deftly takes the reader through the stages of major cases in these areas: facts; trial result; petition for review; oral argument; conference deliberation and vote; postconference writing and circulation of opinions; and the announcement of the opinion. His purpose in doing so, however, is not to inform the reader of jurisprudence in these areas, but rather to convince the reader of procedural flaws within the Court’s structure. His book unfolds like a five-count indictment of the Supreme Court’s behavior.

COUNT #1: The Supreme Court has become too dependent on law clerks. Clerks "wield the enormous power of the first draft and, specifically, . . . the selection of words, structure, and materials . . . . Rarely do the Justices disassemble the drafts they’ve been given to examine the crucial choices that went into their design." The justices act primarily as editors, and are often manipulated by ideological law clerks. During his tenure, for example, the conservative clerks, who referred to themselves as the "Cabal," used their influence to work against abortion rights, affirmative action, and habeas corpus appeals for death-row inmates. The author alleges that in Patterson v. McLEAN Credit Union (1989), a racial harassment case, Justice Kennedy’s clerk, who had formerly served in that capacity for Justice Scalia, duped Kennedy into a result that both the clerk and Scalia favored. (One of the more comical revelations in CLOSED CHAMBERS is of a brawl between clerks for Brennan and O’Connor during "happy hour" one Friday afternoon in the courtyard. One clerk found himself tossed into the courtyard fountain.) Lazarus maintains further that the justices are unaware of the bitter conflict among the clerks.

COUNT #2: The Supreme Court has become too politicized. (Lazarus traces this politicization to the Senate’s rejection of Supreme Court nominee Robert H. Bork in 1987, yet never tells us why or how this rejection so dramatically affected the Supreme Court.)

 

"The image of the Court is of an institution broken into unyielding factions that have largely given up on a meaningful exchange of their respective views or, for that matter, a meaningful explication or defense of their own views. It is of Justices who in many important cases resort to transparently deceitful and hypocritical arguments and factual distortions as they discard judicial philosophy and consistent interpretation in favor of bottom-line results."

 

Conservative justices are unprincipled because they no longer view Supreme Court jurisprudence as inherently apolitical. Rehnquist, for example, regularly refuses his usual practice of deferring to subnational legislatures in affirmative action cases. Scalia is quick to abandon "original meaning" when it is convenient to appeal to "morality." Liberal justices are unprincipled (although Lazarus’s tone is less denunciatory) because they accept the notion of an "ever-improving" Constitution and appeal to "evolving standards of decency," a none too well defined "right to privacy," or that which "shocks the conscience." Lazarus, for instance, describes Justice Blackmun and Marshall’s position on the death penalty as a political view masquerading as an interpretation of the Eighth Amendment.

COUNT #3: The Supreme Court has become too lacking in openness and intellectual integrity. The justices have abandoned the Court’s own deliberative process (for which Lazarus blames the Chief Justice, for whom discussion and deliberation are low priorities) and disregarded basic tenets of the rule of law. Lazarus views many of the Court’s opinions "not as just being logically wrong, and morally inadequate, but as fundamentally dishonest, either by design or through gross negligence." The Supreme Court—so driven by partisanship, lacking in character, and prone to irrational decisionmaking—has thus become no different than the other institutions of government. CLOSED CHAMBERS is about the "creeping of that toxic combination into the delicate ecosystem of the Supreme Court."

COUNT #4: The Supreme Court remains too committed to secrecy. With the Court deciding matters of such national importance, the notion that the Court’s work should be hidden from the American people is "untenable."

COUNT #5: The justices have become too arrogant. "For too long, Justices of the Supreme Court, liberal and conservative alike, have suffered from the arrogance of certainty. That arrogance is the purest and deadliest enemy of the self-restraint so vital to the wise and legitimate exercise of judicial power."

Lazarus’s tone throughout CLOSED CHAMBERS is quite critical. A self-confessed liberal, Lazarus deplores the efforts of the Rehnquist Court to dismantle the accomplishments of the Warren Court. Nonetheless, he is quite bipartisan in his negative evaluations of individual justices. Brennan became "an often bitter and unyielding partisan." Marshall (who, Lazarus informs us, watched soap operas throughout the workday) was "frequently disengaged" and by his final year "no longer up to his responsibilities, or even the appearance of being up to them." Without Brennan’s lead, Marshall made some embarrassing mistakes. For example, Marshall, during conference, voted to uphold a defendant’s death sentence. A clerk noticed the anomaly; Marshall changed his vote. O’Connor is "far from the most intellectually secure Justice." Kennedy is "not a dazzling intellect." Stevens, who commutes from Ft. Lauderdale, is known as the "FedEx Justice."

For all the information revealed, readers should beware of some mistakes and mischaracterizations. For example, Lazarus states incorrectly that the famous Scottsboro decision—POWELL v. ALABAMA (1932)—applied the Sixth Amendment’s right to counsel to defendants in state capital cases. Not true. Rather, that decision required the appointment of counsel only in "special circumstances," such as where the defendants were "young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, [and] charged with an atrocious crime regarded with especial horror in the community where they were to be tried . . . ." (The right to counsel in all capital cases was not applied to the states until BETTS v. BRADY in 1942.) Furthermore, Lazarus remarks of the October Term 1988, "[It] must rank with the New Deal watershed of 1937 and the year of Brown [v. Board of Education], 1954, as the most decisive in this century." The term may be an important one; but to place it in the same category as these years is hyperbole. Lazarus also falsely alleges that O’Connor became so angered at Brennan for "hoodwinking" her in some unnamed past case that she refused to join any of his majority opinions for the Court. The record for this term indicates otherwise. New Court-watchers should, as Lazarus did, independently corroborate the information contained in CLOSED CHAMBERS. (I find David M. O’Brien’s STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS, while containing less "insider information," more informative and fundamentally sound.)

In spite of these and other shortcomings, CLOSED CHAMBERS makes a relevant contribution to the literature on the Supreme Court. In the area of government least understood by the average citizen there exists a deplorable tendency to oversimplify the process. CLOSED CHAMBERS, to its credit, is not guilty of that. Lazarus defends the Court’s legitimacy in the American political system. And he seeks to remove obstacles that may threaten that legitimacy. It is therefore easy to concur with his conclusion: "Whatever other qualities we may seek in choosing heirs for the current Court—legal acumen, moral vision, scholarship, experience—the most important in my view will be open-mindedness and intellectual integrity. For without such strengths of character, the other qualities are for naught, and our belief in law and the possibility of justice will remain casualties in the cross fire of politics."

 ****************************************************************

Copyright 1999 by the author.

Readers may redistribute this article to other individuals for

noncommerical use, provided that the text and this notice remain

intact and unaltered in any way. This article may not be resold,

reprinted, or redistributed for compensation of any kind without

prior permission from the author. If you have any questions

about permissions, please contact C. Neal Tate, Editor, THE LAW

AND POLITICS BOOK REVIEW (ntate@unt.edu), Toulouse School of

Graduate Studies, University of North Texas,Denton,TX 76203-5459

or by phone at (940) 565-3946 or (940) 369-7486 (fax).

****************************************************************