Open chambers?

• Date: 01 May 1999
• Author: Painter, Richard W.

CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT. By Edward Lazarus. New York: Times Books. 1998. Pp. xii, 576. $27.50.

Edward Lazarus(1) has written the latest account of what goes on behind the marble walls of the Supreme Court. His book is not the first to selectively reveal confidential communications between the Justices and their law clerks. Another book, Bob Woodward and Scott Armstrong's The Brethren(2) achieved that distinction in 1979. Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, however, adds a new twist. Whereas The Brethren was written by journalists who persuaded former law clerks to breach the confidences of the Justices, Lazarus was himself a law clerk to Justice Harry Blackmun.

Closed Chambers is a well-written book. Lazarus's prose is concise and colorful. His doctrinal discussions are alive with details from the lives of the persons who brought cases before the Court. Many of these were African-American capital defendants in the South ranging from the Scottsboro Boys in the 1930s, nine men who almost certainly did not commit the crime of rape for which eight of them were sentenced to die in Alabama (pp. 77-85), to Warren McCleskey, who was executed in 1991 for murdering an Atlanta police officer while participating in a robbery, although he may not have fired the fatal shots (pp. 170-81). The book's use of historical material provides perspective on how social norms and politics influence the Justices, as well as the Court's history of confrontation with other branches of government, from Chief Justice Taney's pernicious use of substantive due process to flout the Missouri Compromise in Dred Scott (pp. 246-47) to the Court's dismantling of state death penalty statutes in the 1960s and 1970s (pp. 86-118). Far from being a digression, anecdote and history aptly frame Lazarus's portrait of the Court in the late 1980s and early 1990s.

Nonetheless, many reviewers have criticized the book for a variety of inaccuracies(3) and exaggerations.(4) Others question the reality of Lazarus's vision of nonpoliticized Supreme Court decisionmaking, based on "good faith and self-denial,"(5) which he believes to have been "vanquished" by the Robert Bork confirmation hearings.(6) Finally, Lazarus has been taken to task for overstating the role of clerks in influencing the decisions of the Court.(7)

Although these criticisms collectively cast doubt on the substantive merit of Closed Chambers, this review will not embark on already well-traveled ground by dissecting the book in search of further inaccuracies. Rather, this review will address ethical lapses in the book that have troubled the author of this review(8) and others, ranging from Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit and Anthony Kronman(9), the Dean of the Yale Law School to Tom Goldstein, the Dean of the Columbia School of Journalism.(10)

To the extent Lazarus disclosed confidential communications that took place during his clerkship, he breached not only the trust of the Justices, but a longstanding expectation of confidentiality that is now embodied in a written Code of Conduct for Supreme Court Clerks.(11) Because portions of the book quote extensively from nonpublic documents,(12) somebody also may have violated federal statutes prohibiting unauthorized removal of documents from the Supreme Court building.(13) Unfortunately, Lazarus darkens the cloud of suspicion by refusing to reveal his sources, many of whom are probably former Supreme Court clerks, and by refusing to disclose where he got the nonpublic documents that he discusses in Closed Chambers.

These ethical lapses are the principal focus of this review for two reasons. First, legal scholars, particularly those who teach professional responsibility and recommend students for judicial clerkships, need to ascertain the rationale for and extent of a law clerk's duty of confidentiality. Second, efforts to conceal breaches of that duty by Lazarus and his sources are responsible for the book's most significant substantive shortcoming, its lack of verifiability.

Lazarus is loath to disclose his sources, and does not even provide the complete text of documents that he obtained from the Court's files. His readers, therefore, must take at face value his representations about what was said or written, by whom, and in what context. The usual support provided for a scholarly work, citation to specific documents in the public domain or interviews with identified persons, is absent, and Lazarus acknowledges this weakness in his introduction.(14) The usual safeguard for journalists' stories in magazines and newspapers, careful scrutiny by fact checkers,(15) presumably was not employed here, and in any event would not have been successful given Lazarus's reliance on so many anonymous sources. Indeed, it is unlikely that anyone other than Lazarus himself has comprehensive knowledge of the sources he used.

Finally, Lazarus's breach of confidence raises an unsettling question that undermines his work's credibility: If Lazarus and his sources betrayed the Justices' trust, how can readers easily dismiss the possibility of fabrication somewhere along his undisclosed chain of information? Under the circumstances, and given the substantive inaccuracies that other reviewers have already identified in the book,(16) this reviewer finds such a leap of faith to be unfathomable.

Part I of this review discusses specific ways in which the author and his sources breached confidence. Section I.D responds to the author's arguments in defense of his enterprise. Sections I.E, F, and G then discuss how these disclosures undermine rather than enhance the substantive merits of Closed Chambers, and conclude that those portions of the book that rely on the public record are the strongest while the portions that rely on insiders' disclosures are the weakest. Lazarus's recounting of confidential communications adds little to his account, and his obsession with the clerks rather than the Justices themselves is a distraction that undermines what could have been an insightful account of an important juncture in the Court's history.

Part II discusses the relationship between Justice and law clerk and the importance of confidentiality to that relationship. Part II also addresses an argument that is sometimes made for narrowly construing the duty of confidentiality in the Justice-clerk relationship: the importance of scholarly and public scrutiny of the Supreme Court.(17) Ultimately, however, this argument is unpersuasive, in part because substantial damage to the Justice-clerk relationship ensues from such breaches of confidence, and in part because there is relatively little value in selective disclosures by former clerks. Disclosures about the Court's decisionmaking process are better made by the Justices themselves, as when they give or bequest their papers to libraries or engage in cooperative endeavors with biographers.

1. CLOSED CHAMBERS

   1. The Breaches of Confidence

      Lazarus begins his book 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" (p. xi). He goes on to insist, however, that

      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.(18) In addition, in various public statements, but not in the book itself, Lazarus has claimed that Justice Blackmun knew about the book while it was being written.(19) Justice Blackmun, who died a year after the book's publication, did not confirm or deny prior knowledge of the book, although persons in his office denied that he knew about it prior to publication.(20) There is no evidence that Justice Blackmun gave Lazarus permission to use confidential communications in writing the book, and Lazarus himself acknowledges that Justice Blackmun was unaware of the details of the book.(21)

      Unfortunately, portions of Closed Chambers directly repudiate Lazarus's claim that he has not disclosed information he was privy to solely because of his clerkship.(22) Lazarus reports that early in his clerkship he had a telephone conversation with Blackmun in which he advised Blackmun how to vote in a case, and that Blackmun took Lazarus's advice:

      I told Blackmun that I thought [Justice] Marshall's dissent [from the stay in Spallone v. United States, 487 U.S. 125 (1988)], though fairly convincing, felt premature to me and also prejudged some legal issues.... We talked for a while, back and forth, question and answer.... In the end, the Justice chose not to join Marshall's dissent. [p. 46] Lazarus also reveals that as a clerk for Justice Blackmun, he was given "exacting instructions about how to handle the emergency death cases, including explicit warnings not to be overly influenced by abolitionists from the Brennan or Marshall chambers" (p. 269). Later in the book, Lazarus discusses Justice Blackmun's reaction to the conference in which the Justices decided which issues to hear in Webster v. Reproductive Health Services,(23) then quotes from a bench memo he wrote to Blackmun about Webster (pp. 395-96), and finally relates Blackmun's tepid reaction to the Justices' conference on the merits of Webster.(24)

      Lazarus's disclosure of his own conversations and correspondence with Justice Blackmun, however, is less significant than his reports about communications between other clerks and their Justices. Lazarus may have overheard some of these communications when he was at the Court. In many instances, however, other clerks may have told Lazarus about their own communications with...