• Introduction by the Editors
• Audio interview with Edward Lazarus (requires RealPlayer)
• Transcript of interview with Edward Lazarus
• Commentaries by:
  • Peter Irons (UC-San Diego Political Science)
  • David Kairys (Temple University Law School)
  • Tony Mauro (USA Today)
  • David O'Brien (University of Virginia School of Government)
  • Richard Painter (University of Illinois Law School)
  • Mark Tushnet (Georgetown University Law School)

Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books, 1988) (cloth: $27.50; pp. 576) by Edward Lazarus is a book destined (if not designed) to raise controversy. Its initial reception is bringing controversy in spades. Unquestionably, more will follow. In no small measure, the book's economic success depends on its tantalizing quality, whereas its more lasting credibility hinges on its substantive merit. Whether these seemingly contradictory objectives can both be obtained remains to be seen.

The interview and commentaries that follow address the book's controversial and substantive sides. Hence, we invited some noted constitutional scholars (in law and political science) to author commentaries on various aspects of the book. To put things into historical perspective, we also invited a commentary on the popular press's reception of The Brethren (1979) when it was first released. (We asked a few federal judges to write. All were uniformly critical after reviewing the galleys, and declined to contribute.)

Before proceeding to the interview and commentaries, we offer a little background about Edward Lazarus, a little biographical context.

Edward P. Lazarus, born in Washington, D.C., graduated in 1987 from Yale Law School, where he was a Note Editor of Volume 96 of the Yale Law Journal (1986-1987) and a research assistant for Professor Paul Kahn. He first clerked for Judge William Norris (1987-88) of the Ninth Circuit Court of Appeals, and then at the U.S. Supreme Court for Justice Harry Blackmun (1988-89). For a short time, he taught constitutional law at the Cardozo School of Law at Yeshiva University. As a freelance writer, Mr. Lazarus published in the Washington Post, Los Angeles Times (book review), U.S. News & World Report, and in the Atlantic Magazine, among other places. Currently, he is an assistant U.S. Attorney in Los Angeles.

Closed Chambers is Mr. Lazarus's second book. His first was Black Hills/White Justice (HarperCollins, 1991). That book focuses on a noted Fifth Amendment Indian rights case, which his father, Arthur Lazarus, argued before the Court. Justice Blackmun, writing for the Court, ruled in the elder Lazarus's favor in United States v. Sioux Nation (1980). Black Hills/White Justice is reviewed in 101 Yale L.J. 1671(1992) and in 90 Mich. L. Rev. 1433 (1992), among other places.

Some of the more noteworthy of the early stories, interviews, and reviews of the book can be found in:

• Joan Biskupic, Washington Post, March 4, 1998, p. 8-A
• Matthew Campbell, Times Newspapers Ltd., March 8, 1998
• Tony Mauro, USA Today, March 13, p. 2-A
• Paul Elias, The Recorder, March 13, 1998, p. 1
• Tony Mauro, Legal Times, March 16, 1998
• Publishers Weekly, March 23, 1998, p. 84 (star review)
• Adam Cohen, Time magazine, March 30, 1998, p. 31, p. 7
• CNN "Worldview" (Bernard Shaw interview with Lazarus), April 8, 1998
• NBC "Today" Show (Katie Couric interview with Lazarus), April 8, 1998
• Lyle Denniston, Baltimore Sun, April 12, 1998, p. 5-F
• Richard W. Painter, Wall Street Journal, April 13, 1998, sec. A, p. 23
• Edward Lazarus, Letter-to-the-Editor, Wall Street Journal, April 23, 1998, sec. A, p. 19 (responding to Painter op.ed. of April 13, 1998)
• David Garrow, New York Times, April 19, 1998, sec. 7, p. 26
• Robert J. Giuffra, Jr., Letter-to-the-Editor Time magazine, April 20, 1998, p. 7 (clerk in 1998 Court Term contests Lazarus' account)

The role of Supreme Court law clerks is discussed in an original study and story by Tony Mauro ("Justices Give Pivotal Role to Novice Lawyers") in USA Today, March 13, 1998, sec. A, pp. 1, 2, 12, 13.

One final item: We extended an invitation to Mr. Lazarus to respond to anything in this issue of Books-on-Law. Should he accept our invitation, his reply will appear in the next issue.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law —————————————————————————————
The Interview with Edward Lazarus

Listen to the interview in RealAudio...

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It is April 10, 1998 and I am Ronald Collins. I am here in Washington, D.C. with my guest, Edward Lazarus of Los Angeles, California.

Welcome, Mr. Lazarus, to this interview for Books-on-Law. And thank you for agreeing to answer our questions. Before we begin I want to note that the questions that follow were prepared by myself and my co-editor, Professor David Skover. Unfortunately, Professor Skover could not join us today in person, though he will be with us in word.

Alright, let’s get started, shall we?
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Collins & Skover: How did this book come about? When did you first get the idea for it? How did you go about approaching a publisher?

Lazarus: I first started thinking about the book some months after the Clarence Thomas hearings in the early part of 1992. The theatrics of the Thomas hearings -- not so much the Anita Hill aspects, but really the issues before the Anita Hill story broke with respect to his credentials -- brought to mind a lot of the bitter divisions that I had seen at the Court when I was there. I'm really haunted by my experience there. I come from the old school that thinks about the Court as a forum for principled and reasoned decision-making, and I saw an excessive amount of bitterness and partisanship there. It seemed to me that the Thomas hearings were likely to provoke even more of that inside the Court -- that the Court would absorb even more of the partisanship of politics outside the Court as a consequence of those hearings. So I began to get an idea for a book about the whole process, the history of how it came to be that the Court was so bitterly divided in the mid- to late-eighties through the early nineties.

And the part about approaching a publisher is much simpler, because I published a book before this, Black Hills/White Justice, about a Native American land claim against the United States. I was making a living as a writer, and I already had an agent (which is pretty much a prerequisite), and I had a track record of a trade book that sold well. I went out and wrote a thirty-five page proposal, and then started through my agent to get a publisher interested. Some publishers were interested, and it ended up at Times Book/Random House.

Collins & Skover: What was the first printing run of Closed Chambers?

Lazarus: They never really tell you exactly, but I know that they have published quite a few books. I’m guessing maybe as many as 50,000.

Collins & Skover: The subtitle of your book is The First Eyewitness Account of the Epic Struggles Inside the Supreme Court. Can you elaborate on that? That is, why is yours the first eyewitness account? There have been other law clerks who have written about the Supreme Court.

Lazarus: Well, I think what I was trying to get at there was, it’s not just the first eyewitness account, but the eyewitness account of these epic struggles. I know that Judge Wilkinson, for example, wrote a book called Serving Justice about Justice Powell, but I don’t think it was really oriented towards these terribly divisive issues that my book is oriented towards -- particularly the death penalty, privacy, and race discrimination. I think those other books were of a rather different character. I take the subtitle as a whole rather than any one word in it. I think the reason that the word "eyewitness" was chosen -- in candor, one has to say that titles are a negotiation between author and publisher -- but the word "eyewitness" was an intent to convey that this wasn’t just another journalist’s book. I did approach the book in many ways as a sort of journalist-historian, but I also was coming at this as someone who had really been a participant and certainly an eyewitness to some of the things that I write about.

Collins & Skover: In the Acknowledgments to Closed Chambers you write: "I know Justice Blackmun will not agree with some of the views I have expressed here." Can you tell us what some of those views are?

Lazarus: Well, I think the most obvious is the fact that I criticize Roe v. Wade in the book. Of course, he wrote that opinion, and he believes and has stated many times on public record that he thought it was correctly decided then, and thinks it was correctly decided now. Obviously, I don’t think that Justice Blackmun shares my view in the book.

Collins & Skover: Did Justice Blackmun know of your book in advance of its publication? If so, did he express any opinion about this venture?

Lazarus: Justice Blackmun has known since the book’s inception that I was writing it, and we discussed the book and corresponded about it on many occasions. I never discussed with the Justice the intimate details of the book, and he was not a source for the book But he certainly never suggested that I shouldn’t do it.

Collins & Skover: The galleys of Closed Chambers were leaked to the Washington Post, apparently without your publisher’s knowledge or approval. Is there an irony here?

Lazarus: Well, I think that’s just a part of publishing. Every publisher tries to control very carefully the exact time at which galleys are going to appear. I gather that the Washington Post’s Supreme Court Reporter Joan Biskupic somehow managed to get a galley that wasn’t under a confidentiality agreement. But that happens all the time, and that’s just the way it is.

Collins & Skover: Have you spoke with Justice Blackmun since the book has been published?

Lazarus: We’ve written, but not spoken.

Collins & Skover: Has he expressed any views about it?

Lazarus: I don’t think he’s had a chance to read the book, but I would consider that private in any event.

Collins & Skover: Fair enough. The institution of the law is rather conservative. Do you see yourself as a legal outsider? Do you think you may become an outsider after Closed Chambers is published?

Lazarus: I would expect not. I think my book takes a rather traditional view. I think that in some of the criticisms that may appear about the book, one thing that people may say is that I’m a kind of a legal-process-school person, that I actually believe that there’s a difference between law and politics, that that difference is something that the justices have an obligation to uphold. So, I think really from that standpoint I’m kind of old-fashioned. I hardly think of myself as an outsider. I love the Supreme Court, the institution; I wrote the book out of the love for the Court, and out of a feeling that the justices were disserving the institution’s long-term interests, and indeed that some law clerks were doing so. So, I see myself almost as a defender of the faith.

Collins & Skover: Commenting on your book to a reporter, Judge Alex Kozinski said: "He does not impress with his sense of duty . . . . Eddie Lazarus is clearly trading in on his time serving the Supreme Court." [The Recorder, March 13, 1998] Similarly, Professor Tom Goldstein, the dean of the Columbia School of Journalism, has said: "It seems to me the most fundamental breach of confidentiality you can think of." [Time magazine, March 30, 1998] How do you respond to Judge Kozinski and Dean Goldstein?

Lazarus: I’m pretty confident that when they made those comments, they’d never even seen my book. I’m quite certain that Professor Goldstein hadn’t. And I strongly believe that Judge Kozinski hadn’t, because one of the things that Judge Kozinski was complaining about in the article were aspects of the book that discussed his role in Justice Kennedy’s nomination. He seemed to be upset that I had done so. But, of course, that discussion (as is footnoted in the book) comes straight out of Turning Right by David Savage, the L.A. Times reporter who covers the Court. So, I just frankly don’t think that they had the information on which to form an opinion. I will say this, though -- that I thought about my ethical obligations to the Court every day during the writing of this book. That I think in the choices I made about what to include and what not to include, I honored those ethical obligations. For example, and this is just one example, there is nothing in the book about substantive discussions between me and Justice Blackmun or the cases.

And there are many other methodological points that I could make to show how this is a book that is essentially based on the public record (which is very extensive, thanks to the Thurgood Marshall papers) and on material that I was completely oblivious to when I was clerking. I didn’t know, for example, that the conservative Justices in Webster v. Reproductive Health Services were caucusing behind the backs of the liberals, and circulating internal drafts that the liberals never saw on it, and that never made it into the Marshall papers. I learned that years after I left the Court. So, obviously, I’m not breaking any ethical obligation of mine by publishing that in a book. I just think that that criticism is really unmerited.

Collins & Skover: In an article in the Legal Times [March 16, 1998] Tony Mauro wrote: "An Edward Lazarus who did not serve as a clerk could not have written this book." Yet you maintain that you were careful to "avoid disclosing information" you were privy to solely by virtue of your clerkship for Justice Blackmun. [p. x] There seems to be a tension between your statement and Tony Mauro’s. Is there?

Lazarus: I don’t think there is a tension between those two statements. First of all, in terms of the reportage, no one has ever duplicated (and I include myself) what Woodward & Armstrong did in The Brethren. Former clerks handed them cartloads of documents, and they wrote much more of an exposé than I have. So, I don’t know whether it’s true or not that, at this point in time, a non-clerk couldn't have gotten the information that I got. But I’m quite explicit in my book that I think that being a former clerk helped my book in any number of ways; that maybe people were more likely to talk to me, I think it’s quite possible. But, even more than that, I knew how to read the paper trail; I knew what questions to ask in a way that a journalist who hadn’t participated and seen the inside of the Court would be able to do. And I’m quite explicit that being a former clerk gave me a perspective on the Court.

But, at the same time, legal academics write articles all the time that are informed by their experience at the Court. Pam Karlan (UVa) and Ricki Revesz (NYU) wrote a wonderful article about the death penalty stay process and the subversion of the non-majoritarian court rules during the mid- to late 1980s. Well, all those cases that they talk about came right from their term. Of course, what they were writing, even if it was based on public record materials, was informed by their clerking experience. You couldn’t even count the number of scholars that fall into that category. So, I think, of course, being a clerk helps.

Collins & Skover: If it is to be an institution of fair adjudication, how much secrecy does the Supreme Court need, in your view?

Lazarus: Well, I think a good starting point, it seems to me -- during the time that a case is pending, it is absolutely imperative that the deliberative process be secret. And, on the other hand, at the other extreme, it seems to me that at some point, these things fall into the realm of history. And it’s a little bit like one of Zeno's paradoxes: How many grains of sand does it take to make a sandhill? Where is the line? But, a lot of that, in fact, is governed by the justices themselves. Thurgood Marshall, very shortly after his retirement, gave his papers to the Library of Congress; they include draft opinions, the internal memos of the justices, even his clerks' bench memos. Justice Brennan has given full access to journalists to his papers. So, I think a lot of that is not really determined by any hard-and-fast rule, but just by practice. Somewhere between the time when the case is pending and a substantial time period later is the point where it does fall into the realm of history. And I think that it’s imperative that the American people understand and appreciate the decisional process of the Court and flaws in that process -- as my book, I think, does reveal.

Collins & Skover: Given what you write about in your book, do you support the idea of the proceedings of the Supreme Court being televised?

Lazarus: I think that there is less problem with that. Let me back up and say that I think it’s a very intriguing idea, and I think I’m probably in favor of it. I think there are some down sides to it, but I think that the risks are much smaller for, let’s say, a trial (or the "O. J. Trial"), where the possibility of grandstanding is much greater. At the Supreme Court, you have half-an-hour to make your argument. You don’t have time to be playing to the cameras. I certainly don’t think the justices would be playing to the cameras. So, in terms of bringing these crucially important matters to a broader audience, I think it’s probably a good idea.

Collins & Skover: How about justices doing television interviews? Years ago, Hugo Black did an interview for CBS’ Eric Sevareid. How would you feel if Justice Scalia did an interview with CBS, responding to some of the things in your book? Obviously, at one level, you would appreciate that. But, my larger point is, how do you feel about justices doing television interviews?

Lazarus: I know that Justice Douglas did interviews back then, and I can’t imagine why there’d be a problem with it. It’s their choice not to. But I think the notion of the Supreme Court as really beyond the scrutiny of the American public -- I don’t think that they should give press conferences -- but the idea of a serious dialogue that might be on the television station I think is a wonderful idea. The American people ought to have more of a sense of who it is up there with life tenure deciding these crucially important issues. I don’t see any problem with that.

Collins & Skover: The following question comes from Professor David O’Brien, who is on our Board of Editorial Consultants: "Does the Court’s certiorari pool exercise too much influence? Do you think it should be abandoned?"

Lazarus: That’s a very fine question from someone who has written excellent work on the Court. First, let me say that the cert. pool has changed since the time I was there. When I was there, only six justices were in the cert. pool. Now, as I understand it, there are eight. So, there was much more of a checking process at the Court when I was there, and I can’t really speak effectively about what it’s like to have eight of the justices participating in the pool. I do think that it raises problems, but I think scholars have over-emphasized the problem -- the issue of clerk influence in the cert. pool -- at the expense of emphasizing clerk influence in other aspects of Court life.

The issue of whether clerks are doing too much opinion-drafting is much more significant than the cert. process, and the reason is this. Seven thousand cases, perhaps, come into the Court, but only a very small number of those cases are even arguably cert.-worthy under the Court’s criteria. It’s not as if all seven thousand need very careful examination. So, some rapid sifting process to get down to the few hundred that really are the tough ones doesn’t really seem to me to be a problem at all. As long as the cert. pool operates in a way where, even though one clerk writes a memo to each Justice in the pool, making a recommendation, each chamber still makes an individualized evaluation (and that was certainly true when I was there), I don’t think it’s that big a problem.

Collins & Skover: Much of what you set forth in Closed Chambers suggests that the Justices, or a number of them, are intellectually dishonest and that their work-product cannot be squared with any self-respecting notion of the rule of law. Such a charge seems akin to what the Critical Legal Studies scholars have been saying for a decade or more. Is this a fair analogy? Are you a "Crit," or at least a postmodern Legal Realist?

Lazarus: I think I’m exactly the opposite of a "Crit" in this respect: That analogy occurred to me many times during the writing of the book, and I think what’s so sad about it is that it’s the Court’s obligation to prove the Crits wrong. I don’t agree with very much at all of what I read of Critical Legal Studies, but the terrible aspect of the Court during the period I am writing about was that [the Court] was, it seems to me, going around yelling: "We have no clothes on!" I think that that is fuel for the Crits' fire. So I think I’d come out of it from the opposite point of view. I’m not a Crit, and I think to the extent that the justices behave in a way that tends to prove the Critical Legal Studies' points, the Court is doing a very bad job.

Collins & Skover: The Court’s 5-4 Miranda decision in 1966 was among its most controversial. In a forceful dissent, Justice John Marshall Harlan charged that the majority had failed to demonstrate that its "new rules are well supported, let alone compelled, by Fifth Amendment precedents." Do you consider Chief Justice Earl Warren’s opinion in Miranda to be an example of principled and progressive constitutional decision-making? Or, to borrow a few words from your final chapter, is the Miranda opinion better understood as an example of one wing of the Court insisting "on making huge legal leaps on the slim authority of five votes"? [p. 514]

Lazarus: I’m not an expert on Miranda and I can’t hold myself out to be, but I can make a few points that differentiate that Court from this one. For example, even though Justice Harlan did issue that very strong dissent, he came to abide by Miranda as precedent, which is something you don’t see, very rarely see during the period I was writing about. I think that that’s a distinguishing mark between the divisions in the Warren Court and the divisions in the Rehnquist Court. Chief Justice Warren was someone with an enormous amount of experience with the criminal justice system, and I think that Miranda reflects that. I don’t think it's an unreasoned decision in the way some of the decisions I criticize in the book are unreasoned. That isn’t to say that everything about the exclusionary rule is well-grounded in constitutional principle. Akhil Amar at Yale has written a great deal, and some of it very powerful, criticizing the exclusionary rule, as have other scholars. But, without either supporting or defending any individual opinion, I think the enterprise of the Warren Court was one that was intended to try and bring a federal system of justice, to impose that upon the states (particularly in the South) that they felt were really abusing state authority. I think Miranda was directed at that, and I think that that general enterprise was very well grounded in the post-Civil War Amendments.

Collins & Skover: The late Justice Lewis Powell was seen by many as judicious and fair-minded. Yet your discussion of his handling of McCleskey v. Kemp (1987), for example, portrays him otherwise. That is, you accuse him of knowingly "making unsupported assumptions." You refer to his McCleskey opinion as reflecting "statistical know-nothingness," and as an opinion with an "obvious failure of logic and craft." [pp. 207, 211] Should Justice Powell, then (at least so far as this opinion is concerned) be ranked among the hypocritical jurists of our day?

Lazarus: I don’t think any justice should be judged by a single opinion, but I think that the McCleskey opinion is a very weak one. Justice Powell himself admitted to statistical know-nothingness, and I think that that is a difficult position to be in when writing an opinion on a very sophisticated statistical study. One thing I would note is that the possibility of hiring a special master to analyze those statistics was raised inside the Court and soundly rejected by the justices; and perhaps that was a mistake. I do think that McCleskey is a very poorly reasoned decision, not because of its outcome (which may have been defensible) but just for the text itself. I can’t go through my fifty page chapter on McCleskey, but I think what McCleskey symbolized was exactly the almost civil war that was developing inside the Court where the death penalty played a crucial role.

In my view, in 1976, the Court made a pact with the American people, and the essence of that pact -- this is in Gregg v. Georgia, of course -- was that the death penalty is constitutional as a theoretical matter, but we would do it very carefully. The trouble is that both sides refused to honor that deal. Brennan and Marshall, on the one hand, maintained their abolitionist position regardless of how many times the Court upheld the death penalty thereafter, and they tried to sabotage the death penalty from the left. And I think one consequence of that campaign of theirs was to so frustrate the conservative wing of the Court that they stopped doing the death penalty carefully. I think that the McCleskey opinion (and I think Justice White was very instrumental in this, too, as was the current Chief Justice) reflects the impatience and annoyance and frustration that had built up, really, over thirteen years at that point, whereby they just weren’t going to go back down the road of Furman abolitionism. I think that’s what they saw McCleskey as representing: the race-based challenge, if they upheld it, where would the death penalty be? And after almost a decade and a half, I think they were willing to uphold the death penalty in the face of a very strong statistical case on far from strong reasons. So, I do criticize Powell very soundly for that.

Collins & Skover: So far as your knowledge goes of Justice Powell, was the McCleskey opinion indicative at all of how he approached constitutional questions or was it rather aberrational?

Lazarus: I’m not as big a fan of Justice Powell as some people are, although I think that he brought a tone and civility and presence to the Court that was very welcome. But as Paul Khan wrote in the Yale Law Journal back in the late 1980s about Powell’s balancing jurisprudence, I think there are real problems to that kind of very personalized balancing approach to the law. It’s judicious in the sense that it reaches compromises on many issues, but it is also really prone to a personalization of law that is dangerous. I’ll give you an example. What is the difference between Justice Powell’s vote in Roe v. Wade with the majority and Justice Powell’s vote in Bowers v. Hardwick? It was the exact same substantive due process doctrine. If anything, Bowers v. Hardwick presents an even stronger case under the privacy regime for upholding the right of homosexuals to engage in consensual sexual acts in the privacy of their home versus the right of a woman to have an abortion.

Justice Powell had a great affinity, he had a sympathy for unwanted pregnancies; he had deep personal experiences from his time in his law firm with a young clerk who had been involved in an illegal abortion that had gone bad. So he had a real experience there. And this is all in John Jeffries's book about Powell. Whereas he had absolutely no empathy for homosexuality. He was really (and this also is in Jeffries's book) totally ignorant on homosexuality. He thought perhaps he had never even met a homosexual. I think that, in many ways, those votes can only be reconciled by a questioning of his own sort of personal gut reaction. To me, that’s not a particularly good jurisprudence.

Collins & Skover: You have a long chapter on the McCleskey capital punishment case and the Burger Court’s handling of it. Substantively speaking, what does your book tell the reader that was not already set forth in John Jeffries’s 1994 biography of Lewis Powell and/or in Randall Kennedy’s 1988 Harvard Law Review article on the subject?

Lazarus: Well, you’re comparing me to two giants in the field. Those books (and Randy Kennedy’s book also talks about this) are tremendous pieces of work. I certainly read them carefully. Some of what I say tracks their thinking -- although, not entirely -- my own take on it is different. I think one aspect of the book that is very different, though, and that they don’t discuss, is the fact that the conservatives were caucusing among themselves even before the case was briefed and argued, and pretty much coming to an agreement at Justice White’s instigation that they not go back down the road of Furman, and that they get rid of this by doing -- well, not actually Justice Powell, but Justice White was suggesting that they do away with it, because the statistical disparity was not great enough to support the Equal Protection Clause. But one of the things that I emphasize a lot in my book is the way the different wings of the Court had broken into caucuses. And I think McCleskey is an excellent example of that. And that is not discussed in either of those prior works.

Collins & Skover: You refer to the atmosphere at the Supreme Court as being an "intensely polarized environment." [p. 274] Later, you add: "It is still a Court of two camps divided intractably over the pressing issues of the day." [p. 514] How would you respond to the claim that the current Court is far more centrist and really lacks a true liberal wing, say of the Warren-Black-Douglas-Brennan kind?

Lazarus: Well, I don’t think the two are incompatible, and here’s why. I mean, it is certainly true -- no one could argue otherwise -- that there is no true liberal wing on the Court with the departures of Brennan, Marshall, and Blackmun. The left of the Court is made up of two centrist Democratic appointees and two sort of moderate Republican appointees, Stevens and Souter. My point about the current Court was that over certain issues -- and they happen to be litmus test issues, which are race and federalism -- the divide is very deep. I’ve written about this in US News and World Report, of course. I think that there is a divide between those justices with a kind of Yankee sensibility and those who have a different sensibility that runs really, really deep. And I think you see it in all the federalism cases, the voting rights cases, the affirmative action cases -- that there is still very, very sharp division, and these justices have world views that are impossible to reconcile.

Collins & Skover: You suggest that something epic and quite unusual happened in the late 1980s, a constitutional turning point if you will. Almost a quarter century ago Professor Leonard Levy made something of the same charge in his book Against the Law (1974). Therein Levy argued that a bare majority of the Court had fallen "into the control of conservative activists whose decisions cannot be explained by any form of strict construction." (By the way, Professor Levy, like you, had a good deal of criticism of the Court’s handling of capital punishment cases.) What makes what happened in the late 1980s really any different in principle than what happened in the early years of the Nixon Court?

Lazarus: I guess I would say that Professor Levy’s verdict on the Burger Court is demonstrably overstated. Many people describe that Court as the counter-revolution that wasn’t, and I think I fall largely into that category. As a matter of fact, it wasn’t the Warren Court but the Burger Court that took a liberal view of capital punishment in Furman v. Georgia. It’s the Burger Court, not the Warren Court, that created Roe v. Wade and vastly expanded the right to privacy. Though there were cutbacks in certain areas of law, particularly criminal law and criminal procedure, there were many expansive moves forward during that period. So, to say that the conservatives dominated that Court is just wrong.

Collins & Skover: I think Professor Levy, though (if I may object), was talking about the early years of the Court. This was when Justice Blackmun wrote a number of cases in criminal procedure with the conservatives. There was a sharp division on the Court. It seemed like it was a radical break from the Warren Court, and some of the same divisions you point to seemed to be present then. And I guess that is the point that I was speaking to.

Lazarus: I suppose we’ll have to look back at this period in hindsight, but you may be talking about a one or two-term period. After all, 1974 is U.S. v. Nixon, 9-nothing. They were still voting in that early period with great uniformity on the race cases, which had been the driving agenda of the Warren years. We have deep divisions in this country over many issues, and the Court is occasionally going to be divided. But I don’t think you see the kind of lock-step 5-4, 5-4, 5-4, over as many years as I’m talking about over the breadth and range of cases that I’m talking about, as you saw in those years.

Collins & Skover: There are but a few relatively innocent pages in your book about Texas v. Johnson, a noted First Amendment case involving flag burning. Given the importance of that case, which was decided when you were at the Court, why didn’t you say more about it?

Lazarus: You have to make a choice as an author about what kind of book you want to write. The book that I wanted to write was very different than the kind of book other people have written about the Court. I think the general book about the Court marches through a series of terms -- five or six years' worth -- and covers fifteen cases, the big fifteen in whatever areas of law that happen to be during the period covered. I didn’t want to write a book like that. I wanted to take a much narrower focus, and look much more deeply at those cases. Of course, flag-burning was a very, very important issue (although, I think, jurisprudentially not nearly so difficult as some of the others). But, in any event, of course it was a big case. But, if I picked that big case, why not Pennsylvania v. Union Gas, the big Eleventh Amendment case? Why not the Allegheny case, involving the creche and menorah in Pittsburgh, which was a huge religion clause precedent? Once you start going down that road, I think you lose your focus very easily. I don’t disparage the importance of those cases in the least, but you can’t cover everything.

Collins & Skover: Assume that at the end of a Court term a law clerk were to do a detailed and tell-all interview for Court TV concerning his or her year at the Supreme Court. Do you find that problematic for any reason?

Lazarus: I would find that problematic. As is said, I feel like law clerks have certain ethical obligations. But, I don’t find the remotest analogy between that and what I did, so I haven’t considered it very much.

Collins & Skover: Why do you find that problematic?

Lazarus: Well, partly just because of the recency of it. And I come back to Zeno's paradox -- how many grains of sand make a castle? Right after the end of the term, a lot of the legal repercussions of those cases are just a little too fresh, I think. And I also think that, as I said, I was very careful not to put anything into the book that I knew only because I was a clerk, and I doubt any clerk giving an interview like that could make the same claim. There’s a difference between Day 1 after your clerkship and nine years later, and what sources you’re using, and what your real approach is.

Collins & Skover: How do you feel about former law clerks, when they apply for jobs at law firms just out of law school, listing on their resumes the opinions that they drafted for the Court or opinions for which they wrote the first draft? I’ve seen resumes like that.

Lazarus: I think that’s a very odd thing to do. I certainly have never done it. I think it’s totally inappropriate.

Collins & Skover: Why?

Lazarus: Because the final version is not theirs; it’s not their choice to make. I just find it an odd thing to claim you were really the author of it, any more than if you work on a draft of something for a law professor. You put you're a research assistant, just like you put you're a clerk at the Court. You don’t say that you wrote it.

Collins & Skover: Do you think Closed Chambers will help to erode America’s confidence in the Supreme Court? In light of what you say about how the justices handle abortion, affirmative action, and death penalty cases, for example, does that confidence deserve to be eroded?

Lazarus: The Supreme Court has gone through better and worse times. I think the time that I’m writing about is a worse time. I compare it to the 1930s. The Court’s reputation at large is going to ebb and flow as well. What I was trying to do here is write a book from the point of view of someone who does not want to tear down the institution but wants to restore it. And perhaps that work of restoration is already going on inside the Court. But I think that by calling attention to some serious shortcomings in the way some cases were being decided, that I would attribute it not to a tearing down of the institution but to its rebuilding.

Collins & Skover: A reporter for Time magazine has written: "The book discusses legal history and doctrines, but it is the tales out of school that will no doubt attract the most attention." [Time, March 30, 1998: Adam Cohen] How would you respond to the charge that Closed Chambers, whatever it substantive message, invites obsession with the more petty sides of life at the Supreme Court?

Lazarus: I think that’s clearly wrong, and for this reason. There is nothing in the book that is tales out of school. What there is in the book are details in service of an argument. There’s no titillation in the book. One thing, for example, that the Time magazine article focused on -- the celebration of clerks, conservative clerks, when executions took place. I didn’t put that in the book to titillate, and I didn’t single out just conservatives. I also talked about the fact that liberal clerks overstepped the bounds sometimes. But I think it’s crucially important on death penalty emergency stays, the role that clerks play. The justices are home for the evening, and how you characterize a case to them, what recommendations that you make carry enormous weight. And the fact that there was an attitude in a certain clerk group in crucial chambers that was trying to grease the skids for executions, that’s not gratuitous titillation. That’s an incredibly important fact about a life-and-death matter. The things that Time magazine would characterize as telling tales out of school are all there in service of my central argument, which is that the Court had absorbed into itself the partisanship of the political world outside the Court, in part through the clerks and in part through the justices themselves, and that it was tearing at the fabric of the Court’s inner life. There’s nothing wrong with telling the American people what was going on.

Collins & Skover: What was the amount of your advance for Closed Chambers? There are reports that you received a six-figure advance. True?

Lazarus: That’s true. I also received a six-figure advance for the first book.

Collins & Skover: Would you care to share with us what the advance was for the book?

Lazarus: No. When I was growing up, I was always told that you didn’t talk about what you made for a living. But I will say this: compared to my colleagues who went into private practice, and even compared to my colleagues who went into government practice, I can guarantee you my income was substantially lower. So, anybody who suggests that you become a writer of serious non-fiction for the money has got a screw loose.

Collins & Skover: The promotional materials for your book indicate that you have been commissioned by Warner Brothers to write a screenplay about the Supreme Court. Can you tell us about that?

Lazarus: This happened long before I ever even started this book. I finished my first book, Black Hills/White Justice; I was exhausted from what had been an extremely intense two-and-a-half year process; I had a friend out in Los Angeles who said, "Why don’t you come out and we'll try to write a screenplay about the Supreme Court?" We dreamed up a kind of Frank Capra-type story about the Court, and we pitched it to Warner Brothers, and they were kind enough to buy it. It was a delight, but I don’t think about myself as a screenwriter. It was a lark to try fiction, and who knows whether I’ll ever do it again.

Collins & Skover: So, that was prior to Closed Chambers?

Lazarus: Yes, that’s right. We were commissioned to write that screenplay back in 1991.

Collins & Skover: What’s the state of that?

Lazarus: It’s still at Warner Brothers, in development as these things are.

Collins & Skover: Is the screenplay largely done?

Lazarus: Oh, the screenplay's been done for years.

Collins & Skover: Can we expect anything soon?

Lazarus: Who knows? Anybody who knows the movie business knows that getting commissioned to write a screenplay has absolutely no, or a minor, correlation to whether you ever get a movie made.

Collins & Skover: Can you give us just a few sneak previews about it? A teaser, or something?

Lazarus: It would be foolish because, if the movie ever were to get made, it would look dramatically different than it does now. But, as I say, it’s kind of a "Ms. Smith Comes to Washington" story.

Collins & Skover: One last thing. Your first book was about a case that, among other things, your father argued in the Supreme Court successfully, and Justice Blackmun wrote the opinion -- Supreme Court, member of the Lazarus family, Justice Blackmun. The second book, Closed Chambers -- Supreme Court, member of the Lazarus family, Justice Blackmun. Is the Supreme Court, and perhaps Justice Blackmun, an autobiographical vehicle for the Lazarus family?

Lazarus: It’s pure coincidence. I started Black Hills/White Justice when I was twenty-two years old. I had absolutely no idea that I was ever going to -- I don’t think I’d met a Supreme Court justice at that point in my life -- so the notion that I could project ahead and think, "Oh, how funny that I would be in Justice Blackmun’s chambers and that I would go on to write another book about the Supreme Court" -- this was not the remoteness gleam in my eye. I do remember my interview with Justice Blackmun. We talked a little about the Black Hills case because I had already written a couple hundred pages of draft before I ever entered law school. And that’s about the only connection that I can really think of between the two except for the points that you made.

Collins & Skover: Do you have another book in the works?

Lazarus: No, I certainly don’t. And as was true after Black Hills, finishing a book is an exhausting moment. I feel actually a little empty. I’m at the U.S. Attorney’s Office in the Central District of California because I really wanted to remind myself what it was like to be a lawyer. That was something I got a little further away from than I ever anticipated. And I expect to return there.

Collins & Skover: That concludes our Books-on-Law interview with Edward Lazarus. Again, many thanks, Ed, for participating in this interview.

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Commentaries

Lazarus Goes Where Reporters Fear to Tread
by Tony Mauro

We are a peculiar lot, the reporters who cover the Supreme Court of the United States.

The book Closed Chambers has just been published, giving arguably the most detailed inside account of the workings of the Supreme Court since The Brethren, and yet most of us in the Supreme Court press corps have cast it aside. Lyle Denniston of The Baltimore Sun, the respected dean of the corps who has covered the Court for forty years, has savaged the book in print as "riotously flawed," especially in its "hilariously foolish notion that the Supreme Court is really run by scheming clerks." Linda Greenhouse of The New York Times, who just won a Pulitzer Prize for her fine coverage of the Court, has also disparaged it on the record, in part, she acknowledges, because Lazarus describes her as "left-leaning." Viewing that as an inaccurate characterization, Greenhouse says the rest of the book, for her, is suspect. In the weeks since the book was released, it has become sport in the Court’s amiable press room for reporters to swap "gotcha" examples of minor errors in Lazarus’s account.

No one, it appears, seems terribly interested in examining Lazarus’s bigger point: that from time to time—and especially during his time as a clerk at the Court in 1988-89—the justices fall prey to the same political and ideological forces that distort the workings of the other branches of government. And while the power of the law clerks is a recurring theme, Lazarus places the blame at the feet of the justices themselves, and does not, in the end, say what Denniston accuses him of saying, namely that the clerks run the place.

Lazarus’s theme of a Court that has lost its way would seem to be one that the press, of all institutions, would be eager to run with. I don’t fault Denniston or Greenhouse for disparaging the book if they truly believe it lacks credibility. The book is not perfect. But as someone who has covered the Supreme Court for (a mere) eighteen years, I have to say that much of what Lazarus writes rings true and should command our attention.

So, why has the Supreme Court press corps collectively yawned, so far at least, at the publication of Closed Chambers?

Part of the answer has to do with the nature of the Supreme Court and the twenty-or-so reporters who cover it more or less fulltime. Unlike the White House press corps, where sharp elbows seem necessary if one is to excel, we at the Court are generally a collegial and respectful group. We know that badgering Supreme Court justices or asking them or their clerks for deep-background interviews, or any kind of interview at all, will get us nowhere. Justice David Souter once declined my written request to discuss the Boston Red Sox, telling me the subject was too controversial.

So we sustain ourselves with a rich and varied diet of stories without ever, or hardly ever, going "beyond the paper"—beyond the rulings the Court hands down. That becomes clear in another recent book about the Court that swiftly sank out of view: Barrett McGurn's America’s Court: The Supreme Court and the People (Fulcrum Press, 1997). McGurn served as the Court’s public information officer from 1973 to 1982, and he depicts a press corps that rarely ruffled feathers—even though his boss, Chief Justice Warren Burger, was often obsessed with leaks and negative coverage about the Court. In one telling anecdote, McGurn notes that in 1978, after a number of Court rulings leaked to ABC News’s Tim O’Brien before they were handed down, The Washington Post’s Court reporter pleaded with McGurn to plug the leaks or else other reporters would have to match the scoops.

The Supreme Court, in short, is not a place where scoops are sought or often obtained by inquisitive reporters. After a while, the inquisitiveness recedes, or is put to use to figure out what the Court has done, not how it does it. So when Lazarus takes an investigative reporter’s approach to going behind some of the major decisions and relationships of his year at the Court—and, significantly, from other terms as well—he goes there more or less alone.

The Lazarus book also disturbs the conventional conception of the Court, which I believe is shared by the press corps: that it, unlike the other government institutions in town, is above the political fray, making its decisions in a pristine and intellectually honest environment. Richard Davis, in his book Decisions and Images: The Supreme Court and the Press (Prentice-Hall, 1994), argues that the Court actively cultivates that image in its dealings with the press, a thesis that many of us in the press corps disputed. But however the Court’s enviable mystique evolved, it is there, it is powerful, and it is largely embraced by the reporters who cover it. And now Lazarus has gone and messed it up, telling us that the Court’s decision-making can be as hypocritical, calculated and political as it is in the other branches of government.

That, of course, is Lazarus’s most important contribution: forcing us to consider the possibility, at least, that the Court’s decision-making is not as bloodless and pristine as we always thought it was. Sometimes, it appears, in the period before the justices exchange their traditional handshakes as they take the bench, there is blood on the floor.

Because that notion is so at odds with the Court’s traditional image, Lazarus may have to resign himself to the fact that his book will not be readily embraced—even by the press, the one institution that ought to be able to adapt to contrarian views.

Tony Mauro [tonymauro@aol.com] has covered the Supreme Court and legal issues for USA Today and the Gannett News Service since 1980. Since 1987, he has also written "Courtside," a column on the Supreme Court, for Legal Times.

Editors' Note: Some of the points mentioned in Tony Mauro's Commentary are touched upon in his recent interview with Pulitzer Prize winner Linda Greenhouse, the New York Times reporter assigned to cover the Supreme Court. See Mauro, "Getting a Beat on the Court," Legal Times, April 27, 1998, p. 7.

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Reason Worship
by David Kairys

Promoted on the cover as an insider tell-all and written in the accusatory prose of an investigative report, Closed Chambers, nonetheless, reveals little that is new, and is simply another paean to reason and process in law and legal scholarship. In the familiar mode of legal criticism, Lazarus worships reason and integrity, which he finds lacking in the high priests and priestesses of the law, and in almost everyone else but himself.

Lazarus’ main point and complaint is that the justices have allowed politics to enter the temple, improperly destroying the "natural bounds" between law and politics. Almost all the justices over the last several decades are implicated, although his harshest criticism is reserved for the conservatives who now dominate the Court. Focusing mainly on abortion, the death penalty, and race, he collects the sins of erroneous or false reasoning: "Stare decisis is passionately invoked in one case, blithely discarded in the next. Avowed originalists conveniently forsake originalism; textualists forsake text." Reasoning is used selectively rather than consistently, and "subjective, value-laden, inescapably political judgments" abound, even by those who purport most strongly to be driven by reason and law.

Is this critical legal studies? Hardly. For Lazarus, all of this is a deviation from the "integrity born of consistency and sincerity" that is the essence of law done the right way, a deviation so serious he describes it as "patholog[ical]." Critical legal studies scholars, like the earlier legal realists, tend to characterize it as the normal, ordinary workings of the law—which is not distinct from politics—rather than as a deviation.

Where Is the Norm?

The central problem for Lazarus and this book—and for this dominant mode of legal scholarship—is to document the norm, compared to which the injection of politics can be described as a deviation. Typically, there is not much about the norm in Closed Chambers, as if Lazarus believes it is so obvious that one need not discuss or describe it. I found myself looking page by page for the instances and periods of law done right according to Lazarus, and for his basis for reaching that conclusion. There is some praise and occasional reverence, always served up with criticism, for Brown v. Board of Education (1954) (and the earlier Scottsboro case), Marbury v. Madison (1803), Griswold v. Connecticut (1965), and almost any opinion written by Justice John Harlan.

Brown is good because, in addition to liking the result—which is not supposed to have any or much affect on legal reasoning—it was an "outstanding example of statesmanship" to gain unanimity. Of course, the effort to gain unanimity involved the kind of political tactics Lazarus criticizes elsewhere—justices, including the restrained Felix Frankfurter, postponed, jockeyed the docket, actively lobbied holdouts, in a manner that is hard to distinguish from legislative maneuvering, until, with the happenstance of Justice Vinson’s death, they got all nine. And, of course, this was liberal judicial activism—consistency, reason, and sincerity, and all the integrity anyone can muster, do not lead inextricably or easily to the social and moral imperative underlying Brown. I grew up just in time to experience full-fledged segregation, and knew many people with unexcelled powers of reason and with integrity and sincerity of the highest order, including lawyers, who thought segregation was just fine and could read the fourteenth amendment without changing their minds. Brown is not a product of reason and integrity; one had to place a high value on equality, and to care emphatically and courageously about results.

Marbury is filled with the kind of strained interpretations and selective and arbitrary reasoning Lazarus elsewhere condemns. It is hard to read Justice Marshall’s opinion and think that it is based on reason and integrity, particularly since we know that Marshall’s Federalist Party had lost the presidency and control of Congress to the Republicans, and Marshall faced the possibility of impeachment, experienced by Justice Chase, had he ruled against the Republicans. His opinion weaves through a range of issues to establish judicial review without really using it. This is not an opinion one can hold up as free of contemporary politics, faults of legal reasoning, or close attention to practical and political results.

Lazarus likes privacy and Justice Harlan, and sees the battle over abortion and much else that divides us as a theoretical dispute about the proper scope and content of substantive due process. Justice Harlan’s opinion in Poe v. Ullman (1961), Griswold and much of its progeny are fine, but Dred Scott v. Sandford (1757), Lochner v. New York (1905), and the reasoning (not the result) in Roe v. Wade (1973) are not. Of course, the idea of substantive due process itself is an interpretive stretch, since it creates substantive fundamental rights based on a clause that sets out procedural limits. And the body of substantive due process law consists of a series of judge-made principles and decisionmaking rules that are not mentioned in the Constitution and are contradictory. Selectivity, inconsistency and value-based or political judgments seem required. These are also areas in which results matter very much.

Yet Lazarus finds something distinctly wrong and different in the legal reasoning and process of the last few decades. Sometimes he seems naive, as in passages suggesting that earlier justices didn’t notice that "five votes means you win," and didn’t act strategically and instrumentally to achieve results and rules they favored. Polarization and the unraveling of a shared moral purpose or vision is, like all else, seen by Lazarus in terms of legal reasoning and process, rather than as social phenomena caused by, and affecting and encompassing much more than, legal reasoning or law. Periods of social and political schism can expose more starkly the law’s normal functioning and social role, and make it harder for an extreme moderate like Lazarus to accept the broad policy-making role of courts in our system.

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Breaching Confidences, Court Bashing, and Bureaucratic Justice
by David M. O’Brien

Not as ground breaking as touted, Edward Lazarus’s "eyewitness account" nevertheless provides a disturbing portrait of the contemporary Supreme Court. Aside from capitalizing on tales of clerks’ behind-the-scenes in-fighting, most of the book covers the history of the Court’s shifting struggles over abortion, capital punishment, and racial discrimination. Much of that is already well trod in works by the late Bernard Schwartz, David G. Savage’s Turning Right: The Making of the Rehnquist Supreme Court (1992), James F. Simon’s The Center Holds: The Power Struggle Inside the Rehnquist Court (1995), and John C. Jeffries, Jr.’s highly acclaimed biography, Justice Lewis F. Powell, Jr. (1994), the latter on which Lazarus draws heavily.

To be sure, Lazarus claims to uncover new "facts," details not earlier disclosed. But, readers beware. He asserts, for instance, Justice Anthony "Kennedy had held some hope" that Justice Clarence Thomas would join the joint opinion which he and Justices Sandra Day O’Connor and David H. Souter delivered in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), when preserving the "essence" of Roe v. Wade (1973). Likewise, Justice Souter is said to have "thought he had assembled a majority (including himself, O’Connor, Ginsburg, Breyer, and Thomas) to overrule" Justice Antonin Scalia’s 1990 opinion on religious freedom in Oregon v. Smith. Neither assertion is documented, and Justice Thomas’s voting record appears to contradict both.

Like Bob Woodward’s and Scot Armstrong’s The Brethren, Closed Chambers’ undocumented "insider" claims are disturbing, since readers (knowing he broke faith with the Court) must trust Lazarus’s judgment on the accuracy of his confidential sources. All the more troubling, then, are his factual errors. For example, when discussing City of Boerne v. Flores (1997) (striking down the Religious Freedom Restoration Act which aimed to override Oregon v. Smith), Lazarus describes Justice Souter as "a vocal dissenter in Smith." Yet, Justice Souter was not on the bench when Smith was decided.

Turning to United States v. Lopez (1995) (invalidating the Gun-Free School Zones Act of 1990), Lazarus calls it "the first time in fifty years the Court invalidated a federal law . . . as beyond the scope of Congress’s previously elastic authority under the Constitution’s commerce clause." New York v. United States (1992), however, struck a provision of the Low-Level Radioactive Waste Policy Act on the ground that Congress transcended the inherent limitations of its commerce clause power.

Lazarus also claims "Justice Brennan did all his cert. work on his own, with little assistance even from his clerks." Alas, in the early 1970s the justice conceded making "exceptions during the summer recess when their initial screening of petitions is invaluable training for the next Term’s new clerks" and during terms "when opinion work must take precedence." Moreover, his reliance on clerks grew throughout the 1970s and 1980s, particularly in the years shortly before retiring in 1990.

Besides such mistakes, the book raises questions about Lazarus’s sense of judgment—judgment of history and other matters. "It is fair to say," he says (with yet another hint of self-importance), "that during the October Term 1988 the Court handed down more landmark decisions in more fields of law than in any other year in its history and the term 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." Wow! Admittedly, 1937 marked a decisive turning point in the Court’s history and no one denies Brown’s significance. Still, does Lazarus’s 1988 term, when Webster v. Reproductive Health Services (1989) and a few other newsworthy decisions came down, rank with 1937 or 1954? How does it fare with the mid-1960s when the Warren Court forged revolutions in due process and reapportionment, while broadly construing Congress’s commerce power? For that matter, compare early 1970s terms that included rulings on abortion, busing, capital punishment, executive privilege, obscenity, and "the Pentagon Papers"?

Narrowing the comparison to the Rehnquist Court years, Lazarus’s 1988 term does not measure up, say, to the 1991 term, when Casey was handed down, along with Freeman v. Pitts’s ruling on withdrawing judicial supervision over integration efforts, among other decisions. The 1997 term remains even more significant with Clinton v. Jones, City of Boerne v. Flores, Printz v. United States (invalidating the Brady Handgun Violence Prevention Act), and Reno v. American Civil Liberties Union (striking provisions of the Communications Decency Act), as well as rulings on physician-assisted suicide in Washington v. Glucksberg and Vacco v. Quill. In terms of divisive five-to-four splits, the 1989 term surpassed that of 1988 with 39 compared to 33. And more important precedents were overruled by the Rehnquist Court in the 1990, 1991, and 1992 terms than earlier or subsequently.

Lazarus’s most stinging charges center on the Court’s conduct of its business. Portraying the Court as "clerk driven" and composed of "editor Justices," Lazarus asserts that the justices read virtually none of the petitions arriving at the Court and that "most of the text of most Court opinions—the key words and phrases that make up the crux of a ruling—has been chosen and crafted by clerks." Pause here and elsewhere should be given, though, for the clerks do not write on entirely clean slates and their drafts must pass muster with the justices. So too, Lazarus blasts the justices for opinions that are "fundamentally dishonest, either by design or through gross negligence." That’s rather ironic, since a main contention throughout is that clerks carry the burden of opinion writing.

In spite of exaggerated claims, mistakes, and questionable judgments, Closed Chambers offers a lively, if distressing, portrait of the Rehnquist Court. No other book attributes so much of the Court’s work to its law clerks, from the screening of petitions and motions for stays of execution to the drafting of opinions.

Lazarus, of course, is not the first to charge law clerks with undue influence. Notably, in the 1957 U.S. News & World Report, Rehnquist (who clerked for one-and-a-half years for Justice Robert H. Jackson and tried to persuade him to vote against the eventual ruling in Brown)— sharply criticized law clerks of that day for being more "liberal" than the justices and for holding too much sway. In two 1993 Wall Street Journal articles, Kenneth W. Starr, a former clerk for Chief Justice Burger, decried the clerks’ influence over screening cases and called for abandoning the so-called "cert. pool."

Closed Chambers reinforces concerns about what has happened to the Court’s deliberative process during the last quarter of a century as a consequence of the justices’ acquiring more law clerks, creating the cert. pool, deliberating less in conference, and delegating more and more responsibility for case selection and opinion writing.

Given Lazarus’s portrait of the contemporary Court’s turning its decision-making process into a non-deliberative political and bureaucratic mess, what does he prescribe? Remarkably, his "remedy, the power to restore the character of the Court and to repair its inner processes," is as strikingly naive as his decade-old encounter with the intellectual struggles taking place within the Court and the portrait he now paints. The remedy, he says simply, "lies only in the souls of the Justices themselves." Assuming his and other descriptions of the inner workings of the contemporary Court are largely accurate, that is not a very promising solution.

Unwittingly, Lazarus’s book suggests an alternative, namely, renewed debate over the creation of a national court of appeals above the 13 federal appellate courts and below the Supreme Court. That was proposed a quarter of a century ago, in 1973, by the Study Group on the Caseload of the Supreme Court, chaired by the late Harvard Law School professor Paul A. Freund. It and other similar proposals were doomed at the time. Hence, the Court created instead the functional equivalent within its own walls. What Freund’s proposal would have accomplished with greater visibility, professionalism, and accountability, the justices achieved by increasing the number of law clerks, pooling them, and delegating most of their responsibility for not only screening filings but opinion writing. Freund, who clerked for Justice Louis D. Brandeis in the 1930s—"when the justices did their own work"—later recalled taking a "moral stance." A national appellate court would be more visible, professional, and institutionally accountable than the current Court’s dependence on bright but transitory, relatively inexperienced, and unaccountable law clerks.

Closed Chambers aims to embarrass the Court. It should also trouble those concerned about access to and the quality of justice in the land. Twenty-five years ago the Court’s docket just topped 5,000 cases and the justices decided by written opinion about 150 a term (three percent), with the help of fewer clerks. On the eve of the 21^st century, the docket hovers around 8,000 cases yet the justices, depending on more clerks to a greater extent than ever, annually decide less than 100 (barely one percent). That is the same number decided by the Warren Court in 1955 when the docket remained under 2,000 and the justices employed half as many law clerks and delegated a lot less. In light of what appears in Closed Chambers, that should embarrass and disturb.

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Hype and History
by Mark Tushnet

Buried inside this well-promoted account of the Supreme Court's work in the late 1980s and early 1990s are some useful observations about what was really going on. Unfortunately, those insights are embedded in an excess of hype and an overheated presentation. Lazarus provides rather little evidence to support the book's most publicized "revelations," and readers need more guidance than he provides to understand that the "struggles inside the Supreme Court" were not really all that epic when seen not from the clerk's eye-view but from the historian's.

Lazarus says that there was a "cabal" of right-wing law clerks who got together to shape the outcome of the Court's work. I don't doubt that Lazarus thought there was a cabal, and I'm willing to take his word that the participants themselves used the term to describe their gatherings. But Lazarus doesn't convince me that there was anything special about the cabal, or even that it was particularly influential.

I note one problem at the outset. Law-clerk accounts of the Court's operations are infected by a serious flaw. Law clerks won't tell what happened inside "their" chambers, and they don't know what happened inside other chambers. Gossip flows freely among the clerks, but information is harder to come by. And, as should be expected, clerks exaggerate--they overstate the importance of their own justice and, more significantly for present purposes, they overstate the importance of the work they do.

I'd offer what I think of as the 'null hypothesis' to test Lazarus's account: No law clerk has a substantial impact on the outcome--a justice's vote--in any significant case, and no law clerk has a more-than-trivial impact on the core legal rules stated in the Court's opinions. Nothing in Lazarus's account persuades me that the null hypothesis is false.

To get to the heart of the problem: Lazarus describes two or three episodes in which, he asserts, the cabal played a large role. One is Webster v. Reproductive Health Services (1989), where conservatives thought they had a good chance of overruling Roe v. Wade (1973). Lazarus describes how one of Justice O'Connor's law clerks, who he says "presided over the cabal," "plotted" the attack on Roe. But, of course, in the end Justice O'Connor did what she wanted, not what the cabal wanted.

A second involves Patterson v. McLean Credit (1989). The key actor here is Justice Kennedy, who initially voted to uphold Brenda Patterson's claim that the 1866 Civil Rights Act gave her a cause of action for racial harassment on the job, and then changed his mind. Lazarus asserts that Kennedy (and O'Connor) were susceptible to pressure from the cabal, and Patterson is supposed to be a case in which a cabal member shifted Kennedy's view. Unfortunately, the circumstantial evidence--all that Lazarus has--suggests that it was Kennedy himself who made up his own mind.

Patterson was argued on October 12, 1988, and Kennedy cast his initial vote within a few days. Justice Brennan set to work on an opinion, which he sent to Kennedy in mid- to late-November. (I reconstruct the dates from Lazarus's account.) Kennedy, in Lazarus's words, "reacted badly." He sent Brennan a note suggesting that changes--important ones--had to be made in the draft before Kennedy could agree to it. Brennan made some changes, which appeared to satisfy Kennedy. Brennan sent the draft to the rest of the Court in early December. Justice White circulated a proposed dissent. And Kennedy said nothing--in December or January, through late April, when he changed sides.

Where does the cabal come into this? Well, in February Kennedy got three new law clerks, one of whom was a leader in the cabal. Lazarus says that the clerks on his side of the Court attributed Kennedy's April switch to the influence of the cabal member. But the timing is not quite right. Kennedy had been sitting on Brennan's opinion for about two months before the cabal member came into his chambers, and two months is an extraordinarily long time for a justice to withhold a vote. The evidence seems clear that Kennedy was bothered by his vote from the outset, and his misgivings were not allayed by Brennan's draft opinion. Perhaps the cabal member firmed up Kennedy's misgivings, but that's a far cry from the sort of influence the word cabal suggests.

Finally, there is a place where the cabal might have made a difference. Lazarus opens the book with an account of the Court's actions in death penalty cases, and in particular on requests for stays of execution. These requests caused enormous tension inside the Court, both among the justices and among their clerks. The requests often presented highly technical questions about whether a claim had been properly presented or forfeited at some earlier point, and usually had to be processed under tight time constraints. Lazarus says, and here I find him persuasive, that conservative law clerks were able to shape the way in which requests for stays were presented to the justices in the memos they wrote, and thereby might have affected the actual decisions a justice made.

So there's something to the idea that conservative law clerks made a difference. But it's hardly at the heart of the Court's work. More generally, Lazarus's version of the cabal's influence fails to account for the ambivalence and uncertainty about results that some justices felt. When a justice resolves the uncertainty in a conservative direction, as in Patterson, Lazarus says it was the result of the cabal's influence; when he or she resolves it in a more liberal direction, as in Webster, Lazarus suggests that it was the result of fair-minded consideration of the merits.

There is something unseemly about describing the conservative law clerks as a cabal. Lazarus himself says that law clerks from different chambers hung out with each other, and it wouldn't be surprising--it certainly was true in 1972-73 when I was a Supreme Court law clerk--that these informal social networks were organized along roughly political lines. I earlier referred to gossip among the law clerks. Lazarus doesn't persuade me that the plots he describes were anything more than gossip. I did have some uneasiness on reading that a law clerk in one chambers prepared a draft opinion that he carried over to another chambers for the law clerk there to present to the justice. But then I realized that I didn't know--and neither does Lazarus--whether the first law clerk's justice knew about this beforehand.

Discussions among law clerks can be described as creating a "back channel" used by a cabal, as Lazarus does. Or they can be described as an informal exploration of ideas among a network of people who knew each other before they arrived at the Court and who share some roughly similar ideas. I suspect that any sensible justice would want his or her law clerks to engage in such discussions, as a way of improving the quality of the chambers' work. True, the law clerks within one chambers can talk to each other. But they may be so much alike that they will suffer from group-think, the inability to see how people with slightly different ideas will react to what they produce.

Lazarus doesn't like the informal exchanges among the conservative law clerks, but that's because he doesn't like conservative opinions. He also doesn't seem to like the conservative law clerks as people. But, having heard from only one side, I reserve judgment on the accuracy of his assessments here. I do note, however, that Lazarus describes a pushing and shoving incident in which a liberal and a conservative law clerk both appear to have behaved badly.

The hype should be ignored.

There's a fair amount of interesting information in the book. Most has been presented before, by me, James Simon, and John Jeffries. But Lazarus will reach a new and wider audience with the information, if only because of the book's hype. And he does have some new information, drawn from materials produced inside the chambers of conservative justices that was not available when other authors wrote. (From a scholar's point of view, it's unfortunate although understandable that Lazarus does not "source" his material, particularly when he asserts that his material shows that prior accounts were inaccurate.) Lazarus establishes that, just as liberals during the Warren era "caucused" before Court conferences and before circulating draft opinions to the entire Court, so have conservatives more recently.

And, in some ways, that's the problem with Lazarus's presentation. His subtitle refers to "epic struggles," and he repeatedly treats the late 1980s and early 1990s as a key turning point in Supreme Court history. As Lazarus portrays it, this was a time when the center disappeared as the Court fractured into conservative and liberal wings that failed to engage each other or, perhaps more important, each other's arguments.

Something certainly did happen around this time, but it was hardly unique in Supreme Court history. Rather, it was the sort of routine transition that occurs when one formerly dominant coalition collapses and is replaced by another. Anyone who has read The Brethren will see the resemblance between Lazarus's apocalyptic description of how things looked from Justice Blackmun's chambers in 1988-89 and how they looked from Justice Douglas's in 1971-72. Even the decay of personal relations among the justices is not new: Lazarus attributes it to Justice Scalia's personality and conservative resentment over liberals' treatment of Robert Bork; liberals in the 1970s attributed it to Warren Burger's Machiavellian maneuvering.

Lazarus's account is misleading as well because it treats a transitional period as if it defined what happened after the transition. He describes the Court today in precisely the same terms as he uses for the Court in the early 1990s. But it clearly is different. The intensity of dispute has been reduced, for example.

And, perhaps most important, Lazarus is wrong in saying that the Court divided permanently into conservative and liberal camps. That's inaccurate even today. There is no liberal camp. Rather, the Court is divided between conservatives and centrists. The most interesting aspect of the current Court (and the one that deserves the most attention from people like Lazarus, who would inform the public about the Court's role in American governance) is precisely that the liberal wing of the Court has disappeared. There simply is no one on the Court who is passionately committed to any of the causes that captured the hearts of Justices Brennan and Marshall--civil rights for African Americans, abolition of capital punishment, amelioration of the condition of America's poor.

Lazarus's book is a missed opportunity. If he had not been captured himself by the outmoded categories of liberalism and conservatism, he might have been able to use the new information he has to illuminate the way the Court fits into today's political system. A conservative Republican Congress is at loggerheads with a moderate Democratic president, whose political abilities seem to drive the Republicans up the wall. That isn't a bad description of the Court today either, and it would have been nice if Lazarus had helped us understand how that came about.

As it is, he has given readers some interesting information about how the Court worked about a decade ago. That's not nothing, but it's not what the hype suggests, either.

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center and is the author of Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (Oxford University Press, 1997).

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Keeping Confidences: A Response to Edward Lazarus
by Richard W. Painter

Edward Lazarus has published his account of what he claims goes on at the Supreme Court. I have argued that in doing so he breached the Code of Conduct for Supreme Court Clerks if he disclosed confidential communications that took place during his clerkship (Wall Street Journal, April 13, 1998, sec. A, p. 23). I have also suggested that, because portions of the book quote extensively from nonpublic documents, somebody may have violated federal statutes prohibiting unauthorized removal of documents from the Supreme Court building. Unfortunately, Lazarus darkens the cloud of suspicion by refusing to reveal his sources, many of whom are probably former Supreme Court clerks.

Based on admissions clearly stated in the book itself and the inadequate explanations I have heard from Lazarus thus far, logic compels me to the unfortunate conclusions that ethical obligations probably were breached and that somebody may have broken the law. Given the gravity of these conclusions, I sincerely hope that Lazarus, a federal prosecutor sworn to uphold the law, will disclose how and from whom he obtained the nonpublic documents that are discussed in Closed Chambers. I emphasize also that the merits and demerits of making Supreme Court papers available to the public is an entirely separate issue from whether Lazarus and his sources had the right unilaterally to selectively publicize confidential communications.

Lazarus has made the following arguments in defense of Closed Chambers. I respond to each.

Lazarus begins his book by acknowledging that "[t]he clerkship gave me unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask." But he goes on to insist "I have been careful to avoid disclosing information I am privy to solely because I was privileged to work for Justice Blackmun. In other words, I have reconstructed what I knew and supplemented that knowledge through primary sources (either publicly available or provided by others) and dozens of interviews conducted over the past five years."

It is nonsense, however, to claim that a person bound by a confidence can reveal that confidence so long as it is "reconstructed" from other unnamed sources, particularly when that person's knowledge of confidential information itself is what makes the act of "reconstruction" so easy. Ethical Consideration 4-4 of the Model Code specifically points out that a lawyer's ethical obligation of confidentiality, "exists without regard to the nature or source of information or the fact that others share the knowledge." Allowing a lawyer to reveal his client's confidences -- and indeed get fame and fortune therefrom -- by using his inside knowledge to squeeze the same information from other sources would eviscerate the lawyer-client relationship. The relationship between justices and their clerks would be similarly destroyed if clerks could so easily circumvent their obligation to keep confidences.

Furthermore, portions of Closed Chambers repudiate Lazarus's claim that he is not disclosing information he was privy to solely because of his clerkship. Lazarus reports that early in his clerkship he had a telephone conversation with Justice Blackmun in which he advised Blackmun how to vote in a case, they talked and Blackmun took Lazarus's advice (pp. 45-46). Lazarus also details specific instructions that Blackmun clerks were given not to be influenced by either the abolitionist or the conservative chambers in death penalty cases (p. 269).

The Code of Conduct for Supreme Court Clerks, Canon 2 states that a "law clerk owes the Justice and the Court complete confidentiality, accuracy and loyalty," and that each law clerk "is in a position to receive highly confidential circulations from the chambers of other Justices, and owes a duty of confidentiality with respect to such material similar to the duty owed to the Justice employing the clerk." Canon 3 provides that "a law clerk should never disclose to any person any confidential information received in the course of the law clerk's duties, nor should the law clerk employ such information for personal gain." Presumably the word "never" in Canon 3 means what it says.

Lazarus, however, in his comments to Time magazine (March 30, 1998) and in a letter to the Wall Street Journal responding to my editorial (April 23, 1998), says that the Code of Conduct no longer applies to him. To prove this point, he seizes upon its last provision:

Effective Date of Compliance A person to whom this Code becomes applicable shall comply with it immediately upon commencement of his or her clerkship and throughout such clerkship. Violations of the Code by a law clerk may be disciplined by his or her appointing Justice, including dismissal.

Lazarus in his letter argues that the confidentiality provisions in Canon 2 and Canon 3, like other provisions of the Code, therefore "appl[y] to clerks only during their service at the court (not to former clerks who routinely talk to the press). This is why the explicit penalty for Code violations is limited to dismissal as a clerk." Lazarus, however, fails to name a single former Supreme Court clerk (besides himself) "who routinely talk[s] to the press" about the Court's confidences, and furthermore fails in his attempt to turn the "Effective Date of Compliance" clause into a blanket license to ignore the Code's confidentiality provisions.

First, the mere fact that a clerk can no longer be fired does not mean that the clerk can violate his ethical obligation of confidentiality to the Court, any more than leaving a law firm or moving to another jurisdiction permits a lawyer to disclose the confidences of former clients. Even if the lawyer can no longer be punished for breach of professional conduct rules in the former jurisdiction, the second jurisdiction will almost certainly punish the breach. More importantly, the lawyer has acted unethically. The plain purpose of the "Effective Date of Compliance" provision in the Code is to establish when and how the Court will discipline a clerk for a violation, not to relieve former clerks of their duty to keep confidences.

Second, the "Effective Date of Compliance" provision affirmatively states when a clerk must comply with the Code in its entirety, including provisions such as the one (immediately above it on the same page) stating that a clerk should not seek political office. Nowhere does the Code indicate when a clerk's obligation to obey the Code shall cease. Common sense suggests that many of the Code's obligations (such as not to run for political office) do expire with the clerkship, but common sense also tells us that a confidential relationship would not exist if confidences could be breached as soon as the relationship is over. Lazarus's construction of the Code simply defies logic.

Finally, construing the "Effective Date of Compliance" provision as a blanket release of the confidentiality obligation upon termination of a clerkship creates a glaring conflict with the language of unlimited duration (the word "never") that is used in Canon 3 to forbid a clerk to disclose the Court's confidences. Indeed, the Code of Conduct for Judicial Employees promulgated by the Judicial Conference of the United States, and applicable to every federal law clerk outside the Supreme Court, makes this point even more explicitly: "[a] former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee." Lazarus apparently is arguing that if a Court of Appeals clerk later clerks for the Supreme Court, the clerk may, as soon as his clerkship is over, publicly discuss details of how the justices decided a case and need only keep the confidences of the judges who decided the case below. Lazarus is too intelligent actually to believe an argument so absurd.

There is no conclusive proof that Closed Chambers is based on documents that were removed from the Supreme Court without authorization. Lazarus's refusal to disclose his sources makes proving or disproving this assertion difficult. If documents were removed from the Court without authorization, we furthermore do not know who the culprit was. Nonetheless, Canon 3 of the Code of Conduct expressly prohibits removal by a clerk of documents from the Court, and various provisions of the United States Code prohibit unauthorized removal of records from a federal court. As a federal prosecutor, Lazarus has an obligation to provide both his superiors in the Department of Justice and the public with sufficient information to determine what happened and, if improper or illegal conduct occurred, who was responsible.

In discussing a draft opinion for the 1989 abortion case, Webster v. Reproductive Health Services, Lazarus explicitly reveals that he is using documents that are not a part of the public record:

Previous "insider" accounts of Webster have made no mention of this draft or the crucial correspondence that followed it. They pieced together their versions of the story based mainly on the Thurgood Marshall or William Brennan Papers, neither or which, for obvious reasons, contain the private letters sent within the conservative caucus of the Rehnquist Court. Webster is only one example, albeit a glaring one, of how dramatically the presently available paper trail can seriously mislead students of the Court. (p 402)

Lazarus obviously goes beyond "the presently available paper trail" to discuss a draft opinion by Chief Justice Rehnquist and related correspondence between Rehnquist and some of his colleagues on the Court, although Lazarus insists that he knew nothing about these documents when he clerked for the Court the year Webster was decided. Once again, his refusal to identify his sources makes his statements in his own defense impossible to verify.

More to the point, the issue remains of how Lazarus, years after his clerkship, could have examined documents that he acknowledges are still not available to the public. If he did not remove the documents from the Court during his clerkship, two other possibilities remain: either someone permitted him to enter the building to review these documents after his clerkship was over (an unlikely possibility) or someone removed the documents from the Court and allowed Lazarus to examine them. In either case, the conduct in question could have occurred with or without authorization from one of the Justices.

18 U.S.C. Section 641 provides criminal penalties for "[w]hoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record . . . of the United States or of any department or agency thereof," and "[w]hoever receives, conceals, or retains the same with intent to convert it to his use or gain knowing it to have been embezzled, stolen, purloined or converted." 18 U.S.C. Section 2071 provides criminal penalties for anyone who "willfully and unlawfully conceals, removes . . . or, with intent to do so takes and carries away any record . . . document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States." On their face, these statutes appear to prohibit unauthorized removal of confidential records from a federal court and subsequent use of those records in a book sold to the public. Indeed, both of these statutes are explicitly cited at the beginning of the Code of Conduct for Judicial Employees.

Although Lazarus himself may not have taken from the Supreme Court the Chief Justice's draft opinion in Webster and the related correspondence, it is still important to determine how he got them. He may not use illegally purloined documents in a book, and now that he is a federal prosecutor, Lazarus should have taken extra care to make certain that nobody violated ethical obligations to the Court or any provision of the United States Code by providing him with sources. I have sought assurance from Lazarus that none of the documents discussed in Closed Chambers was removed from the Supreme Court without authorization, but he refuses to discuss where he examined the Webster documents or who showed them to him. Journalists sometimes refuse to reveal their sources, but federal prosecutors are charged with upholding the law, not with concealing possible violations. Lazarus has a responsibility to make whatever disclosures are necessary to assure us that no one removed confidential documents from the Court without authorization.

Closed Chambers unfortunately does malign both clerks and Justices of the Court. Many of the former clerks whom Lazarus casts in an unfavorable light cannot answer his claims without themselves breaching confidences in violation of the Code of Conduct. (Not a single former clerk I have spoken with shares Lazarus's convoluted reading of the "Effective Date of Compliance" provision). He attributes statements, often in quote marks, to other clerks by name, but almost never cites a source. Lazarus sometimes does not even explain whether an attributed statement was made in a conversation, a memo, or an e-mail. Words used and their context could have been as he reports, or could have been different; we simply have no way of knowing. In many cases, statements attributed to one clerk could have been made by another or could have been made up by somebody along the way. The fact that Lazarus refuses to reveal his sources compounds the problem with his use of multiple hearsay.

The Justices fare no better. I objected in my Wall Street Journal editorial that Lazarus published an unsubstantiated report that Justice Marshall once responded to an inquiry about the solution to racism by saying "'Kill all the white people.'" (p. 278). Lazarus responded in his letter that I was taking the remark out of context, that it was intended to be a "jest," and that Closed Chambers had given a "compliment" to Justice Marshall by reporting that he had said it.

I do not share Lazarus's sense of humor (how one can "jest" about killing every person of a particular race as a "solution" to racism), and this is surely a "compliment" that Justice Marshall could do without (officials without life tenure have been fired for making racially insensitive remarks). A report that a justice of the Supreme Court said such a thing is a serious allegation, yet Lazarus gives no specifics as to time, place, and names of witnesses. Furthermore, whatever Justice Marshall said he almost certainly said with the expectation that nobody in the room would repeat his remarks publicly. He is not alive to defend himself, and his expectation of privacy should have been respected.

Furthermore, several justices, most notably Justices Marshall, Thomas, Kennedy and O'Connor, are portrayed throughout Closed Chambers as being heavily influenced by clerks who not only write opinions for them, but tell them how to vote. Apparently these justices cannot make up their minds without a twenty-something clerk a year out of law school telling them how a case should be decided. A "frequently disengaged" Marshall, for example, "cast his vote and that was about all" as "with a minimum of guidance his clerks did the work." His successor, Justice Thomas, was "uninterested" in reading legal briefs or participating in oral argument, and took both his ideas and a "hand-me-down" law clerk from Justice Scalia. Conservative clerks secured Justice Kennedy's vote against stays of execution by getting him to vote early, and a "hypocritical" Justice O'Connor was easily influenced by her clerks in crucial decisions. Lazarus alleges that some clerks even conspired to rig crucial votes, but he fails to specify how. Indeed, most of his brash claims are unsupported and may have more to do with conditions in Justice Blackmun's chambers than anywhere else.

Many of my questions about the propriety as well as the accuracy of Lazarus's reports could be answered if Lazarus were to disclose the sources he used both for anecdotal evidence and to obtain access to confidential documents. There is no statute or code of ethics that imposes on him a duty of confidentiality to these sources, and as an assistant United States attorney he should disclose what happened. If Lazarus is correct that nobody broke either the Code of Conduct or the law in order to assist him in writing Closed Chambers, he can clear the air by opening his own files and making his disclosure complete.

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Raising Lazarus
by Peter Irons

I am informed that Edward Lazarus expects me to "slam" his new book, Closed Chambers. Since I have quoted someone in the previous sentence, I must name my source; the Books-on-Law style guide states: "If you draw upon the words of any source, please be sure to identify that source." The source of my quote is Ron Collins, who asked me to write a commentary on this heavily hyped book. I make this point at the outset to alert those who have not yet read the book that Lazarus relies on "confidential interviews" and private records for much (we don't know how much) of his "eyewitness account" of deliberations within the Supreme Court's closed chambers. But he does not identify any of these sources.

Before I address this issue, let me explain why Lazarus seems convinced that my commentary will be slashing and personal. Five years ago, the New Press released May It Please the Court, my edited and narrated collection of Supreme Court oral arguments. Writing in The Atlantic of October 1994, Lazarus claimed that I had "fictionalized" the arguments and presented "speeches that were never delivered" to the Court. He urged that the New Press "issue a recall" of my "tawdry effort to improve on history." Now that's a slam.

Will I slam Lazarus in return? Let me first note that the oral argument tapes I edited and narrated for classroom use were public records, and that I cut the full arguments to fit within a class period. In a very few cases (Lazarus only found two out of twenty-three) I changed the sequence of what lawyers said for clarity and coherence. That was the crime for which Lazarus (now a federal prosecutor) felt my tapes should be pulled from bookstore shelves and shredded.

Now that I have a chance to return the slam, I will surprise Lazarus. Instead of licking his sores, as dogs did to his biblical namesake, I will emulate Abraham and offer Lazarus cool water to comfort the pain inflicted by Richard Painter, who first accused him of breaking federal criminal laws by using Supreme Court records without permission in The Wall Street Journal of April 13, 1998. [Editors' Note: Also see Painter commentary above.] My concern with the book is not that Lazarus took with him from the Court or was given private memoranda or e-mail messages. Nor am I distressed that he relies on "confidential" interviews. Journalists use purloined material and unnamed sources all the time; Bob Woodward and Scott Armstrong -- whose work Lazarus cites -- based almost the entirety of The Brethren (1979) on documents and accounts whose authenticity and veracity could not be verified. His former and present employers can decide whether Lazarus has broken the law or breached the trust he once enjoyed. I'm more interested in what is inside his book than how it got there.

My real complaint about Closed Chambers is not that Lazarus reveals too much of what he saw and heard as a clerk for Justice Harry A. Blackmun in the 1988-89 term. In fact, he tells us very little about the cases decided that term. Let me explain why I think this 518-page book (with another thirty pages of notes) is bloated and soggy.

During the term Lazarus clerked, the Court decided 170 argued cases, 156 with signed opinions and 12 with per curiam decisions; two were held over for reargument the next term. Of those 170 cases, Lazarus discusses only four at any length; he briefly mentions seven others. He deals with two of the four "big" decisions of his term (Richmond v. Croson Co. and South Carolina v. Gathers) solely on the basis of published opinions, without reference to "insider" material. That leaves just two cases about which Lazarus writes as an "eyewitness" to the Court's deliberations. One is Webster v. Reproductive Health Services, an abortion rights case; the second is Patterson v. McClean Credit Union, which involved workplace discrimination against a black woman. Lazarus also deals at length with Tompkins v. Texas, a death penalty case in which the Court heard argument but decided (on a four-four vote) without opinion.

My tally-sheet shows that Lazarus relied on "insider material" (largely opinion drafts) for twenty-four of the fifty pages he devotes to the Webster case, thirteen of eighteen pages in his Patterson account, and ten of the twenty-three pages about the Tompkins case. That adds up to forty-seven pages in a hefty book of more than ten times that length. What fills the rest of this account of the "epic struggles" to which Lazarus was an "eyewitness" during his one-year clerkship?

Lazarus has filled the remaining 476 (give or take a few) pages with accounts of cases decided before and after his clerkship. Some of his source material comes from books by historians like Eric Foner and Bernard Schwartz; he also relies on journalism, law reviews, and other "insider" accounts of famous cases. But the bulk of his research draws on the Thurgood Marshall papers in the Library of Congress, a massive (and largely untapped) archive of conference notes, opinion drafts, and memoranda and letters of the justices with whom Marshall served. Marshall's papers -- which the Court tried hard to keep from public view -- allow journalists and scholars to reconstruct cases from the filing of cert. petitions to final decision.

Lazarus has made effective use of Marshall's papers in discussing several cases, most particulaly McCleskey v. Kemp (1987 and 1991), to which he devotes three chapters. This vitally important case (in the life-or-death sense) raised the issue of racial bias in death sentencing. Supplemented with records from McCleskey's lawyers and (I presume) with interviews, Lazarus has written a chilling story of legal incompetence and judicial ineptitude that sent Warren McCleskey to the electric chair, despite the obvious unfairness of his trial. This would have been a gripping and instructive book by itself, but Lazarus spread it through his book without pulling the story together.

So what is my final verdict on Closed Chambers? Writing as someone who reads almost everything about the Supreme Court and who loves "insider" accounts, I thought the book was lumpy and indigestible. Lazarus could have educated the public about the death penalty debate within the Court, but his focus shifted too often. He could have told us more about "the culture of clerks," the subject of several insightful and provocative pages in Anthony Kronman's book, The Lost Lawyer: Failing Ideals of the Legal Profession (1993). Lazarus adds detail to Kronman's complaint that law clerks suffer from a "combination of hubris and self-doubt" that produces opinions that veer between certitude and insecurity. But he tells us little about the thirty-five clerks who served with him, other than titillating stories about fisticuffs between liberal and conservative clerks, and the blood-lust of those who celebrated executions with champagne.

Kronman, now the dean of Yale law school, gave Lazarus a book-jacket "blurb" that praises his "disturbing portrait" of a politicized Court. But this is less a portrait than a rogues gallery of duplicitous justices and scheming clerks. It's telling that Lazarus thanks his agents before his editors. But if reports are true that he's written a Hollywood screenplay, let me suggest Leonard DiCaprio for the role of Edward Lazarus. From his book-jacket photo, there's a strong resemblance. Close enough, anyway. As close as Lazarus came to helping us understand the Supreme Court. Is that a slam or not?

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Talkback

Where you have the last word...

Just to set the record straight, Edward Lazarus in his interview with JURIST says, "Justice Brennan has given full access to journalists to his papers."

This is not accurate. I was given access when I worked at the Wall Street Journal, but my access was because he chose me to write his authorized biography, not in my capacity as a journalist. Anthony Lewis has been given access for his scholarly work on the First Amendment, especially his book on New York Times v. Sullivan. NO OTHER JOURNALISTS HAVE RECEIVED ACCESS. There have been some permissions granted to use the papers to people who sometimes engage in journalistic writing, but who have scholarly credentials or at least academic affiliations and whose requests were for scholarly/academic projects.

Again, to set the record straight, journalists have had little or no access to Justice Brennan's papers.

Stephen Wermiel

[Editor's Note: Professor Stephen Wermiel teaches at Georgia State Univerity College of Law. His biography of Justice Brennan will be published by Scribner.]
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