By Edward Lazarus
In this book's portrait, the Court is partisan, not impartial.
Random House (1998)
Reviewed by: Heather R. Moss
In Closed Chambers, Edward Lazarus, former law clerk to Justice Harry A. Blackmun, guides readers on an unprecedented and often unflattering journey inside the U.S. Supreme Court. His disturbing portrait combines his eyewitness accounts as an insider with significant historical research. The juxtaposition of history, memoir, and analysis lends perspective to the complicated clashes that have sharply divided the Court in recent years.
Lazarus gives a detailed caveat stating that he has carefully avoided disclosing information that he was privy to solely because he was a Supreme Court clerk. As a result, his writing is apparently based on reconstruction of events that other primary sources independently verify. However, at numerous junctures, Lazarus quotes documents that he most likely could not have obtained except by being a court insider. One example is a quote (along with his interpretation of legal strategies) from a bench memo he wrote and submitted to Blackmun while serving as his law clerk. Lazarus also refers to interoffice correspondence among the justices. Additionally, Lazarus conducted numerous interviews of unnamed sources. He adds that he did not interview Blackmun for the book.
The author portrays the Supreme Court as an institution that has lost its character and is filled with failings. His argument centers on three politically charged issues: abortion, race discrimination, and the death penalty. These issues, he explains, are illustrative of all that is wrong with the Court led by Chief Justice William Rehnquist.
Lazarus carefully retraces the historical legacy of Roe v. Wade& with a unique insider's view of Roe's author, Blackmun. Lazarus describes the plight of Norma McCorvey (named Jane Roe in the suit) and the unique alliance of two young attorneys, Sarah Weddington and Linda Coffee, who challenged Texas's abortion law. Blackmun was given the difficult task of drafting the Roe opinion, with considerable disagreements among the justices prompting almost endless revisions and concessions.
Lazarus connects his legal and historical analysis to other interesting facts that give a glimpse behind what might have molded the justices' opinions on abortion. Blackmun, who had at one time aspired to be a doctor, worked as general counsel for the Mayo clinic. His years at Mayo and his general observations probably assisted Blackmun in drafting Roe. When Justice Lewis F. Powell was a senior partner in a Richmond law firm, his office assistant confided that his girlfriend bled to death after an abortion.
In the post-Roe era, as the Court chipped away at Roe's protections, Blackmun';s prochoice stance intensified. His name was linked to Roe and he continually fought to protect it. During Lazarus's term, Webster v. Reproductive Health Services, the last case of the 1988-89 term, was before the Court. Lazarus describes the tremendous pressure that the Court';s insiders, including him, felt while Webster was pending. Lazarus recounts the hate mail and letters of praise that Blackmun received from the public in anticipation of the Webster decision. Blackmun, unlike many of the justices, read the Webster ;correspondence because he felt it was important to know what people were thinking. The Webster majority held that a state may prohibit all use of public facilities and publicly employed staff in abortions but did not overrule Roe. Blackmun, in dissent, defended the path-breaking decision he authored and accepted no compromise. Lazarus discusses Blackmun';s forceful dissent and gives a compelling eyewitness account of what happened behind the scenes during the drafting of the Webster opinion.
Lazarus follows the race discrimination cases(including Patterson v. McLean Credit Union and& Richmond v. Croson) that eroded affirmative action policies. He is very critical of what he observed at the Court and the opinions themselves, proclaiming Patterson to be the epitome of how deeply the "poison" of the Court's ideological division had corrupted the shared mission of the Court.
From Lazarus's point of view, the conservatives were unwilling to correct widespread discrimination, ignored the extent of injustice that created the need for affirmative action programs, and issued decisions that were not concrete solutions. The legal issue in Croson ;was the proper standard of review to assess a challenge to race-conscious affirmative action programs. Lazarus takes issue with ;Croson not for the standard of review utilized but rather for how the decision ignores and trivializes the racism that African Americans in this country have suffered. In Lazarus's opinion, the Court's decision pays no more than lip service to this oppressive history.
Lazarus devotes a significant portion of the book to death penalty cases, including an informative description of how they are processed at the Court. From Lazarus's perspective, death penalty cases ignited a heightened level of disagreement among the justices. Blackmun, in particular, changed his views after examining hundreds of petitions over the years. The justice who at one time saw little role for the federal judiciary in regulating capital punishment became a justice with serious doubts about the reliability and fairness of state capital trials and sentencing.
The book contains a lengthy diatribe on McCleskey v. Kemp, a death penalty case decided the year before Lazarus began his clerkship. The Court, in a 5-4 decision, held that a defendant making an equal protection claim has to prove that the decision makers acted with discriminatory purpose. Blackmun dissented on numerous grounds, including the lack of prosecutorial standards for seeking the death penalty. Dissenters also found that the prior history of discrimination against African Americans in Georgia was sufficient to establish a violation of equal protection. What Lazarus criticizes most about the McCleskey majority is its refusal to eradicate race discrimination in capital sentencing. He concludes that the McCleskey majority erected a facade of rationality and fairness in justifying a capital sentence instead of conceding the racial bias that plagued Georgia's death penalty cases.
The book also examines the Court's culture. Clerking for the Supreme Court is the equivalent of being accepted into an elite club. With the privilege comes a job deeply rooted in rituals, private moments, and many idiosyncrasies. Law clerks can take their position of authority and viewpoints to the extreme. Lazarus observed that some conservative clerks formed a separatist group known as the Cabal. Their desire to spread the conservative viewpoint and stay connected to each other went too far, according to Lazarus. They formed their own separate e-mail network within the court system, frequently mocked the liberal justices and their clerks, and passed along politically incorrect witticisms. They also shared information on cases, and this, Lazarus opines, was a mechanism for imposing predetermined viewpoints, shunning difference, escalating tension, and exercising a form of peer pressure within the walls of the highest court.
In another account, Lazarus recalls a brawl that erupted in a courtyard fountain between two law clerks during a social function. The clerks routinely gathered for happy hour on the fourth floor, right outside the highest court in the land. This time was designed for the clerks to socialize and build camaraderie. By the end of his term, by Lazarus's account, tempers were running high, and polite professionalism was a relic. Andrew McBride, a conservative clerk and Cabal member, and Tim Bishop, a liberal clerk of Justice Brennan, got into a shouting match that got out of hand at the last happy hour that term.
According to Lazarus, stress, disagreements, and immature taunts often reached a personal level, resulting in a rift of sensibilities within the Court. Lazarus recalls that at the Supreme Court, a lack of separation between church and state was apparent. At Christmastime, a large decorated Christmas tree adorned the Great Hall, and Christmas music was piped in. Other religions were completely unrepresented. Lazarus reports that many Jewish law clerks resented that their religion was ignored. When several of them voiced their concerns to Rehnquist, he apparently belittled their feelings on the subject. Lazarus recounts how a group of conservative clerks even mocked their colleagues.
Lazarus paints a troubled picture of a pronounced lack of respect among the Court';s insiders. Lazarus's accounts are verbose at times and may leave the reader wondering if they are truth or exaggeration, but his book sends a strong message. He concludes that the Court's character must be restored and the inner workings repaired. His hope for a justice system free of bias and open to different viewpoints is admirable. In any democracy, the justice system relies on impartial justices who respect precedent and fulfill their duties without outside agendas. A court that can embrace difference, rather than shunning it, is a court that will administer justice evenhandedly. Lazarus argues that the U.S. Supreme Court is lacking in this regard.
(Editor's note: Attorneys may wish to read Judge Alex Kosinski's article in Yale Law Journal (January 1999, volume 108, number 4, p. 835) about the book.)
Heather R. Moss, a member of the Los Angeles Lawyer Editorial Board, practices criminal law in Pasadena.