Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

• Author: Chemerinsky, Erwin
• Position: Review

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.

America is deeply divided along ideological lines. This is hardly a new phenomenon; throughout our history, our country has been split by issues on which no compromise is possible. For the first third of American history, the divisive issue was slavery. Later, the nation divided over Reconstruction, labor unions, the New Deal, the perceived ,communist threat, and civil rights. Today, topics such as abortion, affirmative action, and the death penalty split left and right, with deeply held beliefs existing on both sides.

It is hardly surprising that the issues that divide the nation also split the Supreme Court. Liberal Justices, like liberals in contemporary American society, are likely to be pro-choice, supportive of affirmative action, and against the death penalty. Conservative Justices, like conservatives throughout the country, generally have the opposite views. Indeed, whether people are "liberal" or "conservative" is largely a function of their views on these issues.

In his new book, Closed Chambers, Edward Lazarus expresses great dismay that, for the last decade, the Supreme Court has been politically divided, particularly over the issues just mentioned.(1) Lazarus worries that this division has infected the Court in a manner that threatens its long-term legitimacy, and he argues that the ideological politicization of the Court has made it intellectually dishonest in its processes and opinions.

My initial reaction to Lazarus's book was to applaud its wonderful prose and its wealth of new information, but to question its underlying assumption that the Supreme Court should be or can be apolitical. I saw little evidence in the book that the Court's processes had been compromised. I thought that Lazarus's impressive work would be the occasion for a reexamination of the appropriate judicial role in dealing with the issues that divide the nation and for asking whether Lazarus's premises, which are derived from the legal process school, are appropriate for evaluating the Court as it enters the twenty-first century. My primary concern was that the book's wide audience of nonlawyers might uncritically accept the author's assumptions about the possibility and desirability of an apolitical Court.

Unfortunately, this aspect of Lazarus's book seems to have been completely overlooked.(2) Instead, the focus has been on the propriety of Lazarus writing the book at all. The debate has been over whether it was appropriate for a former Supreme Court clerk to write about the Court and particularly about the Term during which he clerked.(3) In a review published in this Journal, United States Court of Appeals Judge Alex Kozinski sharply attacks Lazarus for taking this course.(4) Using virtually every negative thing said about the book in every critical review yet published, Kozinski claims that Lazarus acted unethically and immorally.

Kozinski's accusations are completely unfounded. There is little indication that Lazarus used confidential information that he gained as a result of being a clerk. Much of the new information in the book comes from papers that Justice Thurgood Marshall made publicly available, and much of the rest comes from interviews that Lazarus conducted over several years of working on the book. In Part I of this Review, I argue that Lazarus did nothing wrong and that the criticisms of Kozinski and others are misguided.

Unfortunately, those who object to Lazarus writing the book also find it necessary to declare that there is nothing new within it that is worth knowing. Kozinski, for example, writes: "In a book that lays claim to brilliance and scholarship, Lazarus comes up with not a single new insight about the Supreme Court or the areas of law he discusses."(5) There is something contradictory about lambasting an author for revealing secrets and then saying that there really were no secrets after all.(6) And here, too, I think that Kozinski is simply wrong. Lazarus's book makes an extremely important contribution to our understanding of the Supreme Court, particularly the Rehnquist Court of the last decade. In part, the contribution comes from opening the Court to public scrutiny. In part, it comes from the wealth of new information that the book presents. Part II of this Review describes these substantial new contributions.

Lazarus does not attempt to be a neutral reporter. Rather, he has a normative agenda: He is deeply dismayed by the political division on the current Court and criticizes this split throughout the book. For example, he writes in the introductory chapter that the "severity of these divisions has corroded the Court's institutional culture and driven the Justices to disregard the principles of decision making--deliberation, integrity of argument, self-restraint--that separate the judicial function from the exercise of purely political power."(7) Indeed, the book is filled with such normative judgments, which Lazarus often expresses in passing, such as when he says that the majority's approach in Furman v. Georgia,(8) which temporarily ended the death penalty, "betrayed the very rule of law they claimed to be upholding."(9)

It is here that I disagree with Lazarus. I believe the Court is, and always has been, a political institution in that it decides issues that are intensely and inherently politically divisive. Lazarus's oft-proclaimed desire for a separation of law and politics is one that I do not understand or share. In Part III, I criticize Lazarus for not defending his normative vision and instead presenting it as if it were self-evident. Moreover, I disagree with his view of the possibility and desirability of an apolitical Court. A Court with a Justice Brennan and a Justice Scalia will necessarily be ideologically divided. As explained in Part III, I believe that Lazarus fails to establish his claim that the Court's ideological divisions have caused it to act improperly or in an intellectually dishonest manner.

Lazarus speaks of the Court as if it were a fragile institution with shaky legitimacy. To the contrary, two centuries of judicial review have made the Court one of the most highly respected institutions in American society. There is no indication that its internal divisions have harmed its public image. In fact, as I will argue, the descriptions in Lazarus's book also could support a very different set of conclusions. Lazarus depicts a Court immune from lobbying or improper influence: a group of men and women deeply engaged in the cases before them and struggling to do the best they can.

1. DID EDWARD LAZARUS DO ANYTHING WRONG?

   Imagine a law clerk who, soon after working for a Justice, goes public with information he learned during his clerkship. The former clerk writes a book in which he recounts conversations held within chambers and other forms of inside information. The sole source for this information is the author's firsthand experience during the clerkship. How should we regard such a clerk? It is an interesting question, but it is not a question that arises from Edward Lazams's book.

   The most serious charge against Lazarus would be that he revealed confidential communications with Justice Harry Blackmun, for whom he clerked during October Term 1988. The relationship between a Justice and his or her clerk demands the greatest trust, and it is here that confidential communications are most likely to occur.(10) In the entire book, however, Lazarus recounts only four conversations with his Justice. One is the description of his interview with Justice Blackmun for the clerkship.(11) The depiction is of a warm conversation, and it reveals no Court secrets. Second, Lazarus describes how at their first breakfast together at the Court, Justice Blackmun said to Lazarus, "The pancakes aren't so good on Mondays.... The griddle goes stale over the weekend."(12) Third, after Justice Blackmun returned to the chambers following the conference in the Webster case,(13) Lazarus describes the following exchange: "In any event, I stayed in my office and waited for Blackmun to come through my door on the way to his own. I caught his eye as he slipped quietly by, and he gave a little shake of his head, then whispered, `We'll see.'"(14)

   The fourth conversation is the only substantive exchange that Lazarus reveals. It is a telephone conversation in which Justice Blackmun requested Lazarus's advice as to whether he should vote to stay a district court judge's contempt order in the Yonkers housing desegregation case.(15) Lazarus discloses that he advised such a vote and that Justice Blackmun followed that recommendation.(16)

   Perhaps Lazarus can be criticized for revealing that one conversation.(17) If it is true that communications between a Justice and a clerk are forever privileged--something I dispute below--Lazarus should not have disclosed the exchange. But this one, relatively innocuous conversation hardly seems to justify the vitriol that Kozinski and others have heaped upon him.(18)

   Admittedly, Lazarus's publisher did him no favors in the presentation and marketing of the book. Its subtitle is: "The First Eyewitness Account of the Epic Struggles Inside the Supreme Court."(19) Its cover boldly identifies Lazarus as: "Former Supreme Court Clerk."(20) The inside of the book jacket proclaims:

   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 collisions of law, politics and personality as the Justices wrestle with the most fiercely disputed issues of our time.(21) It is no wonder that this promotion triggered...