Closed Chambers: The First Eyewitness Account of
the Epic Struggles Inside the Supreme Court
Lazarus was formerly a clerk for the United States Supreme Court, and his book is a controversial "tell-all" memoir about how the court works. Almost 1/2 of the book deals with the Supreme Court's death penalty rulings, and it paints a shocking portait of a deeply divided court, which employed shoddy arguments in order to gain the desired result of upholding death sentences no matter how serious the constitutional violations were.
Available at Amazon Books: $19.25
Although part of this book is written as a memoir, it is mainly a work of research and reportage. Naturally, my experience as a law clerk for Justice Harry A. Blackmun was indispensable to that process.
The clerkship gave me unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask.
It also gave me a significant advantage in evaluating and interpreting publicly available primary source material about the Court, in particular the unpublished draft opinions and memoranda contained in the papers of various former Justices.*
Finally, the clerkship left me with specific memories and a general view of life at the Court against.which to evaluate the information I subsequently gathered.
At the same time, in 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.
Indeed, some of the more controversial revelations in the book, including events that occurred during my clerkship year, are things of which I was unaware - or dimly aware - at the time.
For expanding my knowledge of Court history and its inner workings, I am greatly indebted to the many people who spoke to me on the condition that I would not reveal their names. (To avert speculation, I should make clear that Justice Blackmun was not among them.)
With some regret, I have chosen not to identify through footnotes the material gleaned from these confidential interviews. I recognize that this approach makes it more difficult for the reader to evaluate some of my assertions, but I have made this sacrifice in order to further shield the identity of those who helped me. I can add only that, in deciding what confidential source material to use, I have done my best to sift out information that was not independently corroborated or inherently credible in light of my own experience.
Since completing this book, I have started work as a federal prosecutor in Los Angeles. Naturally, the opinions expressed here in no way reflect the views of the Department of Justice or any other agency of government.
*Especially important for my research were the papers of Thurgood Marshall, publicly available at the Library of Congress. Unless otherwise noted these were the source for the many internal Court documents, including the drafts and memos of other Justices, that I quote or refer to in the book.
The first chapter of the book
They looked like rock 'n' roll fans camped out for the night in front of a box office.
Huddled under ponchos, sheets of plastic, or converted trash bags, several dozen people formed a ragged line on the sidewalk and talked quietly as a steady late-night rain soaked their makeshift waterproofing. Up front, two policemen kept sullen watch over the still-growing crowd.
But the location was not a box office, and the event was not a rock concert. It was the Supreme Court of the United States, and the occasion was the deciding of Planned Parenthood of Southeastern Pennsylvania v. Casey, the abortion test case of 1992 that many expected would mark the death of Roe v. Wade and a woman's constitutional right to obtain an abortion.
Some who stood vigil were partisans, lawyers for various legal and political organizations. Others were soldiers from the protracted street war over abortion rights. One woman, in her fifties, had
worked on the underground abortion network in the pre-Roe days when California girls were hustled across the border to Tijuana for quick operations.
The man next to her, a midwesterner, was part of Operation Rescue's army of antiabortion crusaders. He had been a "baby doe," a volunteer on the abortion clinic barricades, provoking arrest in the name of the unborn.
Carol Urich, first in line, forty-eight and wheelchair bound, had never been to the Court before. Still, Roe v. Wade had defined her political identity and she wanted to bear witness at the making of its
history. Her mother had suffered through an illegal abortion in 1933, and Carol, pro-choice in memoria, was still haunted by the fear and pain of that story. So she and dozens of others with memories and convictions no less searing braved the rain and the long night just to sit silently in the Court's majestic chamber as the Justices, the nine high priests of American law, announced Roe's fate.
The Court itself, a Greek-style temple commanding the crest of Capitol Hill, loomed above them in the dim light of the storm. Set atop a broad marble plaza and thirty-six steps, the Court stands in a
splendid isolation appropriate to its place at the pinnacle of the national judiciary, one of the three independent and "coequal" branches of American government. Once dubbed the Ivory Tower by
architecture critics, the Court has a Corinthian colonnade and massive twenty-foot-high bronze doors that guard the single most powerful judicial institution in the Western world.
Lights still shone in several offices to the right of the Court's entrance, and an occasional silhouette passed across the windows. A few in the crowd outside speculated whether the figure was a janitor,
a law clerk, or perhaps even one of the Justices. Others wondered aloud about why Court business might still be going on so late at night.
As I watched them, I thought back to a similar scene three years earlier: July 2, 1989, the eve of the Court's decision in another landmark abortion case, Webster v. Reproductive Health Services.
Then, too, I had been present as a small cross section of America lined up for seats at the next morning's session. On that night, though, my view had been from inside the Court, my shadow observed by the murmuring crowd below.
From July 1988 through July 1989--in Court parlance October Term 1988--I served as one of four law clerks to Justice Harry A. Blackmun, the author of Roe.
This book is an outgrowth of that incomparable experience, meant to capture the judgments and feelings I formed while working for him and to examine how they have changed over what is now more than eight years of reflection.
At the outset, I confess that during my year of total immersion in the world of the Court--often ninety hours a week inside the building itself--I found myself almost inadvertently following Pericles'
advice to the citizens of ancient Athens: to look upon their home and fall in love with her.
From the solemnity of the velvet-draped courtroom to the ornate brilliance of the gold leaf on the library ceiling, from the cloistered silence of the private corridors to the chatter of tourists admiring the Great Hall, the Court radiates a sense of tradition and higher purpose that even in a cynical age inspires belief in the sanctity of law and the possibility of justice. To contribute even in a fleeting way to the history of this place is an honor deeply felt by every one of its employees and creates a powerful loyalty to the institution. Over the course of my year there, I certainly came to share this devotion.
At the same time, what I saw inside the Court--how it worked or failed to work, the strengths and weaknesses of the Justices who presided while I was there, the role of clerks like me--all this left me with an irrepressible sense of disquiet. Part of this book is an attempt to explain and analyze that disquiet. All of this book is an attempt to give both lawyers and the lay public a better understanding of a particularly significant and tumultuous period in the Court's history.
It is at most a small exaggeration to say that legal rules and litigation have become Americans' civil religion and that if we share one sacred text, it is our Constitution. Whether the issue is abortion, race discrimination, sexual harassment, the environment, criminal justice, religious liberty, freedom of speech, or almost any other aspect of how we live and even how we die, Americans have come
almost routinely to expect the courts, especially the Supreme Court, to take sides on every issue of national urgency and help resolve our most vexing social problems.
As a result, pilgrims like those who braved the rain to witness the Court's decision in Casey have become commonplace. So have political marches on the Court and demonstrations on its steps.
And the confirmation hearings for prospective Justices, from the repudiation of Robert Bork to the inquisitions of Clarence Thomas and Anita Hill, have been transformed into political theater of the
highest consequence. All this, it seems, marks a national recognition of how important control of the Court has become to shaping the contours of our government and the spirit of our society.
But for all the attention we now pay to it, the Court remains shrouded in confusion and misunderstanding. Indeed, amid the hedging and dodging of the confirmation hearings, the frequent headlines about legal precedents saved or overturned, the charges and countercharges of "politicizing" the judiciary, and much misleading talk about judicial "activism," "strict construction," and "original intent," I fear that we now feel more but think less about the essential questions of how the Court reaches its decisions, why its integrity and vitality matter so much, and what role it should play in our democracy.
No single volume can address these issues comprehensively. But I hope that what follows will add some measure of light and clarity to what, regrettably, has been a rapidly gathering dusk.
I came of age with an essentially idealized image of the Supreme Court, an image defined by the events of July 24, 1974. On that day, the Court ordered President Richard Nixon to turn over to the Watergate special prosecutor, Leon Jaworski, a series of highly incriminating tape recordings that the president previously had withheld on the ground of "executive privilege."
Although three of the participating Justices had been appointed by Nixon, the Court's judgment against the president was unanimous. And although releasing the tapes would brand him both a liar and a probable felon, Nixon respected the authority of the Court and complied with its ruling. Seventeen days later, he resigned.
Today I carry with me a very different image of the Court. It is of an institution broken into unyielding factions that have largely given up on a meaningful exchange of their respective views or, for that matter, a meaningful explication or defense of their own views. It is of Justices who in many important cases resort to transparently deceitful and hypocritical arguments and factual distortions as
they discard judicial philosophy and consistent interpretation in favor of bottom-line results.
This is a Court so badly splintered, yet so intent on lawmaking, that shifting 5-4 majorities, or even mere pluralities, rewrite whole swaths of constitutional law on the authority of a single, often idiosyncratic vote.
It is also a Court where Justices yield great and excessive power to immature, ideologically driven clerks, who in turn use that power to manipulate their bosses and the institution they ostensibly serve.
In my mind, these two images of the Court--an idealized past and the more recent nightmare--are powerfully linked. The year 1974 is a fair marker for the birth of our current political age. With Nixon's resignation and the winding down of the Vietnam War, the tumultuous sixties drew to a close and bequeathed to us the deep divisions that make up our "culture war." Watergate itself provided a further legacy, leaving us heirs to an unraveling of character in our public life.
Such is government today. Along a broad front, we relive the hatreds of the sixties in shattering struggles over abortion, gay rights, affirmative action, religious expression, the death penalty, and the
role of the federal government. These struggles, moreover, now play out in a post-Watergate world in which the public has grown cynical about its institutions even as the members of those institutions
appear to have grown cynical about themselves and their mission.
Others have written about the epidemic of partisanship and lack of character in our government's elected branches and the cycle of recrimination and disaffection it has created.
This book is about the creeping of that toxic combination into the delicate ecosystem of the Supreme Court. It is about how, through the steady stream of litigation and through the process of nomination and confirmation, the Court has absorbed the same rancor that now swamps the rest of government.
It is about how 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. It is about a Court whose inner workings are dangerously at odds with the source of its authority within our constitutional scheme.
The fault line at the Court, as in the elected branches, traces the rages of the sixties. In constitutional terms, this was the era of the "Rights Revolution," when the Justices, under the guiding hand of Chief Justice Earl Warren, significantly changed the meaning and scope of the nation's foundational law.
Starting with Brown v. Board of Education, the Court moved dramatically to end race discrimination in America, to establish a right of sexual privacy, and to expand the rights of the poor, of criminal defendants, and of religious minorities. Along the way, the Court substantially enhanced its role in the nation's political life as well as the role of the federal government (sometimes at the
expense of the states) in protecting the Constitution's newly established safeguards.
From the perspective of the more liberal Justices and their supporters, today's Supreme Court--the Rehnquist Court--has been engaged in a sustained and evil counterrevolution, undermining or
destroying the civil rights and civil liberties that the Warren Court properly championed. In curtailing affirmative action and civil rights enforcement, in limiting the right to abortion and enhancing the
power of police and prosecutors, in rushing executions and curbing the power of the federal government, including the judiciary, the Rehnquist Court, it is said, has been turning back the clock on social progress and retreating from the institution's own duty to enforce the constitutional promises of liberty and equality.
Conservatives, both within and without the Court, approach the innovations of the Warren era from the opposite comer. In their view, the Warren Court's exaltation of egalitarianism, criminals' rights,
and sexual freedom was a prime factor in creating the legal and moral decay of the current age.
And, to them, most if not all of the Rights Revolution was illegitimate from the outset, a judicial coup d'etat that established the Court as a "superlegislature, overturning with no constitutional authority the judgments of elected representatives. According to conservatives, the Rehnquist Court's retrenchments, while certainly welcome, remain significantly incomplete. To them, in several vital
areas, and especially in those decisions reaffirming Roe and expanding the rights of women and gays, the relatively liberal and moderate Justices have succeeded in compounding the cardinal sins of Chief Justice Warren's day.
In light of such pervasive and continuing internal division, the question for the Court, as for the rest of government, has been whether the institution's own integrity can withstand the corrupting force of bitter disagreement. And the answer, thus far, is dismal.
Under the pressure of the conservative, anti-Warren counterrevolution, the Justices on the Rehnquist Court have broken into self-contained ideological factions who exchange, almost routinely, increasingly harsh accusations of hypocrisy and illegitimacy. On both sides, these charges have often been deserved.
In crucial cases, narrow Court majorities transformed constitutional law on the basis of opinions the Justices knew to be wholly inadequate and unconvincing. Individual Justices sought to advance their political agendas by employing legal arguments in which they themselves did not believe or methods of interpretation they had uniformly rejected in the past. Neither side respected precedent, except when convenient; both sides tried to twist the Court's internal rules to attain narrow advantage.
In short, from William Brennan to Antonin Scalia, the Justices abandoned the power of persuasion for the power of declaring partisan victory by sweeping the chess pieces from the board.
This sort of decision making is more than unseemly or unfortunate. It is antithetical to the Court's role in our system of government. We have vested in the Court broad authority to interpret the Constitution in the belief that unelected and therefore independent judges can wield powers of reasoning, imagination, and wisdom that will raise their decisions above the trade-offs of everyday politics and the naked act of voting. The method of their decision making is the irreplaceable source of the Justices' legitimacy. Thus, when they disregard the traditions of law, invoke intellectually
dishonest arguments, engage in glaring inconsistencies, and reduce their deliberations to the shallow calculus of five votes beats four, they call their own reason for being into question.
The enterprise of the Court, the process of constitutionalism, depends on the Justices' ability to persuade us (and one another) that their choices among competing arguments, however imperfect, represent reasoned, dispassionate, honest attempts to decide cases in a principled way.
We accept the imperfection--the certainty that judges will sometimes err or overstep their bounds--because we maintain a faith that, in the run of things, better arguments will triumph over lesser ones. And we
depend on the judges themselves to undertake the process with a sense of self-doubt and humility that leaves open the constant possibility of reassessment and change.
To fulfill this mission, a body of nine independent, opinionated judges whose views in hard cases often prove irreconcilable must above all preserve a decency of process. For the system to work, for Justices in disagreement to achieve an exchange of ideas, undertake a search for common ground, or even reach an agreement respectfully to disagree, there must first be trust and belief in mutual good faith.
There must be a sense that reasons matter more than specific outcomes. There must be a sense that both sides are advancing legal arguments because they believe in them.
This is not simply a matter of finding the "vital center," so much in vogue in today's political rhetoric.
It is a matter of finding ways to acknowledge and accommodate even our most passionate differences, the ones where no common ground exists. For the Justices, this process demands a strong measure of empathy for opposing points of view and an emphasis on their common commitment to the enterprise of the Court itself. It means understanding when to stand on principle, when to put a matter off, and when simply to yield. It means submerging one's ideology and
self-expression beneath the Court's larger duty to maintain clarity, coherence, and continuity in the law.
Despite the weaknesses of human nature and the presence of other dark periods in the Court's own history, this is not an idle hope. Early in the nineteenth century, at the outset of the republic, Chief Justice John Marshall presided over a Court remarkable for its cohesion despite the prevailing atmosphere of crisis and recrimination between Federalist and Republican partisans.
Through Marshall's own instinct for building consensus and, most important, through the power of collegial discussion, the Justices of that era overcame sharp divisions and succeeded in separating the
interests of the Court and of the Constitution from politics.
Earl Warren, too, even as he pursued a far-reaching agenda, was usually vigilant in nurturing the Court's institutional integrity. As a general matter, he understood that the greatest exercises of the
Court's authority called for the widest possible agreement within the Court itself. In that vein, he worked diligently to achieve unanimity, not only in the first landmark of Brown v. Board of Education but whenever the Court addressed the issues of race, which so divided the nation.
He forged broad alliances in other areas as well and, perhaps most important, exerted his considerable force of personality to ensure that those serious disagreements that did occur took place mainly
within the framework of principled debate, not partisan maneuvering.
The cost to the country of the Court's current deficiencies is potentially enormous. As our leaders across the spectrum of government abandon ethical and institutional constraints in pursuing their clashing agendas, we have begun to lose our belief in one of the nation's founding principles, that of representative democracy--the idea that those we trust with high office will distill and transcend
public opinion to fashion wise policy.
In electoral politics, our current fancy for term limits, for "outsider" candidacies like that of Ross Perot, and for resolving complex issues through ballot initiatives are just a few expressions of the frustration-born populist impulse abroad in the land. And our elected representatives, for their part, seem to have lost either the faith or the courage to act in that capacity. Daily, they respond to what the public thinks at each polling-spun moment, creating a kind of fickle government by referendum.
At the same time, through gimmickry such as blue-ribbon commissions and narrow-gauged constitutional amendments, they seek to remove from themselves the power to make the hard, politically inconvenient decisions that the nation's problems require.
This populist trend is now pressing hard against the Court's front door. Vocal critics, doubting the very idea of judicial review, are now aiming at the judiciary the same antirepresentative assault
already launched against the rest of government.
Robert Bork, the leading conservative spokesman on issues of law, has called for a constitutional amendment that would make "any federal or state court decision subject to being overruled by a majority vote of each House of Congress."
Only with this basic rewriting of our original national charter, Bork concludes, can the "Supreme Court ... be brought back to constitutional legitimacy."
From every quarter, proposals for new constitutional amendments--to balance the budget, protect the flag, fix term limits, limit campaign spending, reinstate school prayer, or guarantee crime victims'
rights--have sprouted like weeds. Whatever their individual purposes, collectively they represent an implicit judgment that the Court's own interpretive methods have become corrupted, and that its common law processes for keeping faith with the Constitution should be replaced by a system of constitutional plebiscites.
This hyperdemocratization of the Constitution is dangerous on at least two levels. First, the more constitutional law is left to majority vote, the less secure become the interests of those dissenting
citizens whom the Bill of Rights was meant to protect. Second, and more generally, a populist attack on the Court would turn the Constitution's nature on its head.
For the Constitution is a "republican" document, one committed to the idea of democracy as crucially tempered through reflection and
deliberation. The Constitution's Framers designed the Court to be a center for such thinking, a safe harbor for our most enduring basic values.
If we abandon that idea, or if we allow the Justices to abandon it for us, we forsake the genius of our national design.
The Court is both a microcosm and a model for the nation as a whole. The ruptures in its culture are ones we share and partially impose. And, by the same measure, the Court's mending could be an inspiration for our own.
In the short run, the cure for what ails the Court lies solely with the Justices. It is their duty, under the shield of life tenure, to recognize the pathologies affecting their work and to restore the vitality of American constitutionalism. Ultimately, though, the long-term health of the Court depends on our own resolve--on whom, through our elected and accountable representatives, we select to join that institution.
Our divisions will be with us always, and they force us to a choice: will our Justices have the wisdom and character to nurture what Abraham Lincoln in his first inaugural address called "the bonds of affection [that] passion may have strained"? Or will they simply be a mirror in which we view our most divided selves at work?
Most books about the Supreme Court deal broadly and, by necessity, somewhat superficially with virtually the full range of important legal issues that come before the Court. This book takes a different approach.
It is limited almost exclusively to a few issues, chosen to be illustrative of the whole: the death penalty, race discrimination, and abortion. This is not because I believe other issues--such as free speech, religion, or the separation of powers--to be less important. Rather, I believe that dealing comprehensively with the Court's varied caseload renders impossible a complete understanding and critique of how the Court really does its work.
My intent has been to use a relatively sharp lens to look deeply into the Rehnquist Court--to explore in detail the substance and history of the disputes that so intensely divide the Justices, to explain how
those disputes tear at the fabric of the Court's internal culture, to provide a clear window into the unsettling interactions of Justices and law clerks as they write the law of the land, and, ultimately, to
evaluate the arguments and strategies of the various factions at the Court.
Some parts of this book are written as a pure history of the Court and of constitutional law. Other parts are explicitly judgmental and embody my current assessment of the Court's actions past and present.
Still other parts consist of a memoir written by someone who participated in the trench warfare that has consumed the Court in recent years.
I chose this approach--juxtaposing history, memoir, and analysis--in order to combine rigorous evaluation with a vivid portrait of the extreme intellectual and emotional intensity that builds inside the Court's closed environment as it grapples with the most explosive legal issues of our day.
I have also tried to use the contrast between what I felt then--as a clerk in the heat of battle--and what I think now as a way of diagnosing what has gone wrong at the Court.
After an introductory chapter, I focus at considerable length on the death penalty. In my experience, the cases involving capital punishment exerted an enormous influence, both ideological and
emotional, on the Court's work. This influence, moreover, has gone almost wholly unnoticed and unappreciated by outsiders to the Court.
At the same time, the issue of the death penalty provides an especially revealing view into the Court's work as a whole. Death penalty cases, both now and in the past, cut to the root of the
Court's ideological divisions. In the terrible context of a choice between life and death, these cases raise many of the issues that have divided the legal world since the Civil War, including issues about
the Court's own role and authority.
For these reasons, I use the death penalty (with an emphasis on the role of race in its imposition) to explain the essentials of Chief Justice Warren's Rights Revolution--to trace its origins and intent, to sketch out its opposition, and to describe its gradual eclipse. I also use the Court's capital cases to explain when and how both the liberal and the conservative factions at the Court came to abandon
the Court's own deliberative processes and disregard basic tenets of the rule of law.
Chronologically, my discussion of the death penalty cases carries the narrative of judicial revolution and counterrevolution up to the full-scale bloodletting that commenced with President Ronald Reagan's nomination of Robert Bork to succeed Justice Lewis Powell. In my view, that nomination fight--full of deceptions on both sides--unleashed yet a new level of rancor and self-destructiveness in the nation's legal culture generally and at the Court in particular.
The story of the Court in the late 1980s and early '90s is of this spirit of faction and recrimination.
And to tell this story--which makes up the heart of the book--I shift focus from the death penalty to the issues of race and abortion, which, more than any others, have defined the modern Court.
There, I explain exactly how the warping factors of polarization and a failure of integrity profoundly affected the Court's decisions as the Justices and their clerks savaged one another over the most divisive matters in American life and what hand the Court should have in them.
On questions calling for the most careful judicial response, the Justices again and again provided only the most political.
The Court today has found some measure of peace on the issue of abortion. And the holdovers from the era of Warren and Nixon are gone. But the battles at the Court, as in the country, continue with great force, especially over the issues of race and states' rights--the twin shadows of the Civil War that haunt us still. The current Court remains a place shattered, one lacking not only a center but a leader and shared sense of purpose.
So this book is meant as both an indictment--a revelation of how a Court can come to lose its essential character--and a hopeful plea that, as a new generation at the Court searches for its balance, such character may be restored.