Inside Out

Ben Gerson, an editor at Fortune magazine, is former editor-in-chief of the National Law Journal

At his 1987 confirmation hearings, Robert Bork, when asked why he wanted to serve on the Supreme Court, answered that it would be "an intellectual feast." If only Edward Lazarus could have told him otherwise, perhaps Bork would not have committed such a damaging gaffe, and his disappointment at being rejected would not have been quite so bitter.

But Lazarus was not to "join" the court--as one of Justice Harry Blackmun's four clerks--until the following summer. By then, the court had long since ceased being either a debating society or indeed an institution infinitely greater than its nine disputatious members. And the reasons, in Lazarus' view, helped to explain why President Reagan asked the Senate to consent to a candidate as controversial as Bork.

The Warren court and even its successor, the Burger court (1969-86), had presided over a constitutional revolution that transformed the rights and status of African Americans, other minorities, women and, let us not forget, criminals. In the process, in the eyes of conservatives, the court aggrandized the individual, denigrated the states and engorged the powers of the federal government, in particular the judicial branch. And it did so by coaxing rights not out of the text of the Constitution but out of thin air.

Listen to how Lazarus portrays his term--"The Justices . . . set the Court on a course dramatically less sympathetic to the claims of minorities, criminal defendants, prisoners, death row inmates and women seeking abortions"--and you'd assume he's a flaming liberal. In fact, Lazarus is almost Burkean on the subject of revolution. Revolutions inevitably conjure up counterrevolutions. But in the judiciary, unlike the Paris Commune, revolutionary and counterrevolutionary sit cheek to jowl. No one quite as radical as Bork ever made it onto the court, but his creed, which goes by the term "originalism," has a representative in Justice Antonin Scalia, who overlapped the tenures of Justices William J. Brennan Jr. and Thurgood Marshall. The best antidote to Brennan's and Marshall's fantasias of interpretation when renewing the constitutionality of a statute or the conduct of some government agent, Scalia or Bork might say, is a retrospective inquiry into the framers' actual intent.

Lazarus has little patience for conservatives' yearning for the kind of certitude that only something like originalism can promise. And he has less patience still for the schemes and squabbles of the left and right wings of the court and the slipshod reasoning and drafting they exhibit in their eagerness either to preserve the full breadth of some right identified in the court's glory days or to scrape away decades if not centuries of constitutional encrustations.

Most exasperating of all perhaps are the two in the middle, Justices Sandra Day O'Connor and Anthony Kennedy, who are at the fulcrum of power, as Lazarus suggests, precisely because they are weak-minded and therefore most easily manipulated by the other justices and even the clerks.

Lazarus is a "process" guy, in two senses. He favors an expansive view of the 14th Amendment, which says the states may not deprive their citizens of life, liberty or property without "due process." Courts will decide a case on the basis of the litigants' answers to the following questions: How precious or fundamental is the interest that is threatened, and how much care must the government show in divesting you of it? The more precious the thing, the greater the care that is required.

Lazarus is also deeply interested in the process by which the Supreme Court reaches its due process decisions. And the heart of "Closed Chambers" is his pitiless examination of the decisions and the decision-making of the Burger and Rehnquist courts as they essay the hotly contested areas of death penalty, affirmative action and abortion. The subtitle of the book notwithstanding, only a small part of the book is based directly on what Lazarus saw or heard in his year as a clerk. A somewhat larger portion is based on conversations with clerks behind and ahead of him. But the raw materials of the book are really the letters, memorandums, drafts and published opinions of the 20 justices who served on the court during the past 25 or so years.

Other books have covered some of this ground--for example, "Decision: How the Supreme Court Decides Cases," by Bernard Schwartz, which Lazarus cites, and "Battles on the Bench," by Phillip Cooper, which he doesn't. But both are essentially works of political science, not legal analysis. In addition, he relies on unpublished documents discussed in James Simon's "The Center Holds: The Power Struggle Inside the Rehnquist Court" and "Justice Lewis F. Powell, Jr.: A Biography" by John C. Jeffries.

What sets "Closed Chambers" apart is that it embodies the dialectical nature of first-class legal argument. If you're a lawyer, you'll be reminded of first-year constitutional law. If you're not (and there are fewer of you all the time), "Paper Chase" reruns won't give you even a glimmer of this book's cogency and rhetorical force.

Lazarus remonstrates the various justices, pointing out inconsistencies with their own earlier rulings or those of the court in general and condemning the conservatives for callousness, the liberals for self-righteousness and both parties for insincerity and insufficient devotion to the rule of reason. Incidentally, the terms "liberal" and "conservative," though they denote political leanings, not schools of textual construction, are, I believe, apt as descriptions of the justices. Like political liberals, court liberals tend to attribute the litigant's hard knocks to discrimination and other forms of unfair treatment and believe the federal courts have a duty to help even the score. Similarly, court conservatives believe people must face the consequences of their behavior, even if the consequences are disproportional, as they often are in the states' criminal courts, and that they must not be given an endless series of second chances.

A fatalism cultivated by judges with the power to reverse unjust and tragic outcomes baffles the author. But more than enough anger remains for liberals who love humanity more than the Constitution.

Surprisingly, in a book as rigorously argued as this one, the author resorts to social or cultural explanations for the justices' failure to reason wisely and justly. Supposedly, Chief Justice William H. Rehnquist and O'Connor protect the prerogatives of the states because they hail from born-free conservative Arizona; Scalia dismisses affirmative action as reverse discrimination because he has the individualistic values of a first-generation American. David H. Souter looks at discrimination claims with greater sympathy because his great-grandfather was a New England abolitionist.

If the Supreme Court has been mostly unable in recent years to achieve consensus about society's most vexing issues (you would not know from reading "Closed Chambers" that more than 40% of all Supreme Court decisions, on average, are unanimously decided), much of the blame, according to Lazarus, must be laid at the feet of Rehnquist. In conference, the justices are allowed to do little more than recite their views of a given case, and anyone who speaks out of turn is cut off. The justice assigned the task of producing a draft opinion is then given just 10 days to do so. Rather than being the product of discussion and a process of refinement, synthesizing the broadest possible range of views, many of the opinions that emerge are idiosyncratic and lack institutional weight. Lazarus is equally tough on the horse-trading that Rehnquist and Brennan in particular engaged in to preserve or overrule precedent.

Deprived of a collegial process for attaining agreement, the justices, especially Brennan, Marshall, Scalia and Blackmun, are relegated to sniping at each other in footnotes and dissents. Any steady reader of Supreme Court opinions over the years has to have suspected the frayed relations among the justices that "Closed Chambers" exhaustively documents.

The acrimony is just as intense below stairs, where the clerks decide whose cases get to be heard and then produce first drafts for most of the justices based on their own research. Though vested with judge-like authority, the clerks seem appallingly lacking in judicial temperament. One bays for the blood of death row prisoners on appeal; others, in what Lazarus calls a "cabal," adopted "a mechanism for imposing through peer pressure a strict ideological purity among the conservative clerks in different Chambers and of coordinating strategy on death penalty stays, certiorari petitions, and argued cases." In Lazarus' year, 10 of the clerks were members of the Federalist Society, a right-wing back-scratching network of law students, lawyers, professors and judges. Obviously, the justices themselves have created the problem by favoring candidates with strong political agendas of their own.

No man is a hero to his valet, and the same may be said of some of the justices and their clerks, who in Jeeves' fashion save their masters from the most embarrassing pratfalls. In one instance Lazarus describes, a clerk of Justice Marshall in his declining years must inform him that he has just voted to send a condemned man to his death, though Marshall believed the death penalty in all circumstances was unconstitutional. In another, a clerk of Justice Powell, who insists he has never met a homosexual, must explain to him, in the course of deciding whether to uphold a Georgia sodomy law, that homosexuals, while "attracted" to women, feel no sexual desire for them. (The clerk himself was gay.)

That case, Bowers vs. Hardwick, held that Hardwick had no privacy right to perform sex acts with another man in his home. Surprisingly, Lazarus believes the Hardwick case contains a stronger privacy claim than the 1973 landmark abortion ruling Roe vs. Wade, which he says should have been decided on equal protection grounds because the burden of pregnancy and childbirth that biology places exclusively on women should not be compounded by substantial legal burdens on the decision to escape that destiny. Similarly sensitive to inequities between the races, Lazarus believes the court erred in refusing to be swayed by statistical evidence showing that a black in Georgia who killed a white was 4.3 times more likely to be executed than one who killed a black.

Regardless of where one comes out on these questions, Lazarus maintains that both left and right should follow a policy of incrementalism, as expressed in the opinions of Justice John Marshall Harlan, a conservative (in the jurisprudential sense) on the Warren court who believed in departing from precedent when doing so would bring the law, a classic lagging indicator, into congruence with present mores and the nation's fundamental values. Near the end of the book, Lazarus describes how the abortion law, which was being eaten away by spousal and parental notification rules and the like, was saved, in the case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, by a coalition made up of Justices Souter, O'Connor and Kennedy (whose epochal vote switch is inadequately and quite patronizingly explained). Roe might have jurisprudential foundations of sand, but in 20 years, it had become part of the fabric of American life and law.

Some present and past clerks and justices may dismiss "Closed Chambers" as a betrayal of court confidences and a contribution to the problem of incivility and mutual distrust within the court. That would be regrettable. The Court needs critics--and members--with Lazarus' intellectual clarity and deep attachment to its best traditions.

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