Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court. By Edward P. Lazarus. New York: Times Books, 1998. Pp. 576. $27.50.
Every July and August, three dozen of the nation's most promising young lawyers begin service as law clerks to the Justices of the United States Supreme Court. Being a Supreme Court clerk is the most prestigious job to which a law school graduate can aspire. Those selected spend a year observing and participating in the decisionmaking processes of our nation's highest court, an experience most lawyers can only dream of. A Supreme Court clerkship is a ticket to the best jobs in the legal profession and in academia. It is a source of pride for the rest of the lawyer's career.
Until the publication of Closed Chambers(1) last year, it was well understood that whatever a clerk learned about case deliberations during his term of service would never be disclosed outside the Court. This was made clear to the new clerks during conversations with the Justices, and it was part of the institutional ethos--the bedrock of assumptions shared by those working within the Court. During the 1988 Term, it was embodied in a written Code of Conduct for Supreme Court Law Clerks which provides: "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."(2)
Edward Lazarus, who clerked for Justice Blackmun during the 1988 Term, pokes a sharp stick in the eye of this tradition when he declares on the front cover of his book that he has written "The First Eyewitness Account of the Epic Struggles Inside the Supreme Court."(3) The point is driven home by the dust jacket blurb, which declaims in breathless prose:
Never before has one of these clerks stepped forward to reveal how the Court really works--and why it often fails the country and the cause of justice. In this groundbreaking book, award-winning historian Edward Lazarus, a former clerk to Justice Harry A. Blackmun, guides the reader through the Court's inner sanctum, explaining as only an eyewitness can the collision of law, politics, and personality as the Justices wrestle with the most fiercely disputed issues of our time.... Unprecedented in its revelations and unparalleled in the brilliance of its analysis, Closed Chambers is the most important book on the Supreme Court in a generation.(4) While much of the book consists of sober, sometimes turgid, analysis of the Court's case law concerning the death penalty, the right to privacy, and affirmative action, the book is also a memoir of Lazarus's life and times at the Court. He thus fulfills his publicist's promise by disclosing many communications--oral and written--that supposedly took place within the Court during his tenure there. This raises a number of questions: Has Lazarus violated any ethical norms? Are the disclosures justified because they serve an important public purpose? Does the book contribute to our understanding of the Court and its processes? I take up these questions below.
NO ONE HERE BUT US CHICKENS
Contrary to the claims of his publicist, Lazarus has denied he did anything out of the ordinary: "`This idea of absolute silence is really a myth,'" he told the Washington Post.(5) "`Clerks speak to reporters all the time. The difference is they don't put their names to it,'" he told the Associated Press.(6) Lazarus has likened himself to former clerks who have written about cases decided during their clerkships,(7) about the clerking process,(8) or about their Justices.(9) Lazarus also points to the fact that Supreme Court Justices have released their working papers, sometimes very soon after their death or retirement.(10)
On this point--whether Lazarus did something unprecedented--the book jacket has it exactly right. The claim that "former clerks ... routinely talk to the press" is simply not true; clerks may have spoken anonymously on occasion, but the overwhelming majority do not because they consider it ethically improper. In any group there are those who break the rules; they remain anonymous because they are doing wrong. Such surreptitious disclosures no more legitimize Lazarus's wholesale (and highly profitable(11)) release of confidential information than petty shoplifting legitimizes armed robbery.
Nor can Lazarus find cover in the work of academic scholars who have written about the Supreme Court. Using one's understanding of cases as a basis for scholarly discourse is very different from quoting internal Court memoranda, describing the Justices' conduct, and telling stories about how law clerks supposedly interacted with their Justices and each other. Finally, Lazarus cannot sanitize his actions by pointing to the fact that the Justices themselves have released their papers. Justices enjoy a different status from Court employees, and it is misleading and presumptuous for Lazarus to try to shoehorn himself into the same category.
Just how far Lazarus has departed from accepted norms of law clerk conduct is illustrated by the fact that not a single former Supreme Court clerk has come to his defense--none of the three dozen who clerked with Lazarus during the 1988 Term; none of the ninety or so former Blackmun clerks; not even one of the thousand other living former clerks now serving in law practice, academia, and the judiciary. At the same time, a number of former clerks have responded to press queries or written articles expressing outrage.(12) If Lazarus's conduct were benign and ordinary, as he claims, some of the hundreds of others who have served at the Court--among them Lazarus's friends and colleagues--should have rallied to his defense. That none have, despite repeated public statements impugning his honor,(13) is a fair indication that Lazarus went where no clerk has gone before.
IT'S OK BECAUSE I HEARD MYSELF SAY IT
Lazarus states unequivocally that he "`violated absolutely no legal or ethical obligations.'"(14) He elaborates upon this in his author's note:
[I]n describing the private decision-making of the Justices, 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 last five years.(15) The word "solely" is emphasized because it is crucial to Lazarus's ethical hairsplitting. Lazarus takes the position that he did not breach any confidences because all the inside information he discloses, he learned--or relearned--after he left the Court. In that respect, he argues, he is just like an investigative journalist who develops sources, conducts interviews and examines documents provided by others.
There are a number of difficulties with this position, the most basic of which is that we must believe Lazarus about where he got his information. But why should we? Lazarus provides no proof for the implausible proposition that when he tells us things he saw and heard while at the Court, he is not relying on his own perceptions and recollections, but on accounts of the same events he gathered from others. In fact, the book contains several passages where Lazarus reveals information he could not have obtained from other sources.(16) For example, Lazarus describes in some detail a telephone conversation with Justice Blackmun concerning Spallone v. United States.(17) He discloses the advice he gave the Justice, and he tells us that he knew Justice Blackmun "opposed granting the stays."(18) Only Lazarus and Justice Blackmun were parties to this conversation. Lazarus also tells us that the Blackmun clerks were given instructions (presumably by the Justice) concerning the handling of death cases, "including explicit warnings not to be overly influenced by abolitionists from the Brennan and Marshall Chambers."(19) Elsewhere,(20) Lazarus quotes at length from a memorandum he wrote to Justice Blackmun concerning Webster v. Reproductive Health Services.(21) Finally, Lazarus describes the scene in Justice Blackmun's office after the conference in Webster.(22)
Disclosures such as these would not breach confidentiality if Justice Blackmun had consented to them. But Lazarus does not claim the Justice consented, and it is almost certain he did not. Lazarus claims to have discussed the book with Justice Blackmun on numerous occasions, but never "`the intimate details."'(23) And why not? One would think that personal loyalty--if not an actual professional obligation--would have prompted Lazarus to consult Justice Blackmun before writing "The First Eyewitness Account" from inside the Supreme Court.
When news of the book first broke, an enterprising journalist called the Supreme Court and reported as follows: "Blackmun retired in 1994 but still goes daily to his office at the Court, and some people close to him said he was unaware until yesterday that his former clerk was publishing a book."(24) Justice Blackmun has never retracted this disavowal of knowledge, even though he and Lazarus have since corresponded.(25) It is thus a fair inference that the Justice consented neither to disclosure of his conversations with Lazarus, nor to Lazarus's quotation from the bench memo.(26) Because Lazarus cannot reasonably claim to have obtained these confidential details from independent sources, it is fair to ask how many other passages in the book were based on Lazarus's personal recollection rather than his "investigative journalism."
But even if Lazarus did reconstruct everything by talking to others, it seems absurd to argue that a former clerk honors his own duty of confidentiality by inducing other clerks to betray theirs.(27) Moreover, Lazarus admits he made full use of his insider status in piecing together his "reconstruction." In his...