|Aug/Sep 1998 Book Reviews|
Times Book, 1998 210pp
Lazarus, a former clerk to Justice Harry Blackmun, bases the book on his own experiences, interviews with sources such as other former clerks, and memoranda from the chambers of the justices, as well as more accessible sources.
Lazarus portrays the modern Rehnquist Court as bitterly divided into factions. There are the Justices like Rehnquist, Scalia and Thomas who are considered jurisprudentially "conservative," as well as those like Blackmun, William Brennan, Thurgood Marshall and John Paul Stevens who are jurisprudentially "liberal" (Blackmun, Marshall and Brennan have left the court, but they were on the bench during many of the events Lazarus describes). The members of the different factions, says Lazarus, tend to vote on the imortant cases based on political predilections, without fulfilling their obligation to justify their conclusions with well-reasoned opinions. The bad blood between the factions is serious enough that, for example, when the liberals induce the Court to hear the case of someone on death row, the conservatives have been inclined not to allow a stay of execution, which would have the result of the prisoner being killed while the Court was in the middle of reviewing his case.
Lazarus also discusses the role of the clerks. The justices hire young law-school graduates to help the Court select cases to hear, and to help the Justices research and write opinions. Lazarus portrays the clerks as sharing in the factionalism of their bosses-in fact, excacerbating that factionalism. This is too much power for unelected clerks to wield, suggests Lazarus.
Lazarus reveals some new and important information, but he is not the first person to give a behind-the-scenes look at the operation of the Supreme Court. Bob Woodward and Scott Armstrong's The Brethren (New York: Avon Books, 1979) covers the Court during the first years of Warren Burger's term as Chief Justice, and the book presents Burger as manipulative and unpopular on account of the legerdemain with which he tried to get opinions to come out his way. Bernard Schwartz has written a series of books, based largely on the papers of the Justices, in which he examines the politics and vote-switches behind important Court opinions in the Earl Warren and Warren Burger years.
Lazarus, however, is the first author to try to give an analysis of the Supreme Court during a period when the author himself worked at the Court. The present Chief Justice has written about his time as a clerk to Justice Robert Jackson in the early 1950s (see The Supreme Court: How it Was, How it is. New York: William Morrow & Co., 1987), but Rehnquist's account leaves out the juicy parts. Lazarus, in contrasts, reveals embarrassing details such as a fight between a liberal and a conservative law clerk, ending up with both parties falling into a fountain.
Lazarus gives a broad picture combining interviews (as in The Brethren) with documentary research (as in Schwartz' book) and personal recollection (as in Rehnquist's book). The result is fascinating, if you happen to be interested in how the Supreme Court really works. However, if you belong to the school which sees Supreme Court justices as godlike beings framing a just legal order for the benefit of all citizens, I wouldn't recommend Lazarus' work. Your illusions might be dealt a mortal blow.
As an example of the ideological divide between the conservative and liberal factions on the Court (Lazarus leaves the impression that the division among the clerks are sharper than the divisions among the judges, at least with respect to those justices of a moderate persuasion), there is an account of a death-penalty case (Tison v. Arizona). Two brothers in Arizona broke their father out of prison. The family then drove around the country, and the father killed four motorists. The brothers got the death penalty because they were associated with the murder. In the Supreme Court, the liberal faction argued that executing the brothers would contradict an earlier decision (Enmund) which reserved the death penalty for those who had deliberately sought to take human life. There was no evidence that the brothers had meant for their father to kill the victims.
According to Lazarus, a majority of the justices agreed that the brothers should die. Using his powers as Chief Justice, Rehnquist assigned Sandra Day O'Connor the task of writing the opinion. O'Connor had to explain on behalf of the Court Tisons should be executed. However, O'Connor couldn't think of a way to send the Tisons to the death chamber while still keeping the Enmund precedent. Lazarus claims that O'Connor "told her clerk to come up with something." The clerk's solution was embodied in the final opinion: the brothers had shown "reckless indifference" to life. On that ground, the death sentences were upheld (Lazarus, pp. 208-210).
The above account indicates that justices sometimes entrust law clerks with a lot of power when it comes to the writing of opinions. One may contrast this with Rehnquist's reassurances in his 1987 book: "the law clerk is not simply turned loose on an important legal question to draft an opinion embodying the reasoning and the result favored by the law clerk...The law clerk is not off on a frolic of his own, but is instead engaged in a highly structured task which has been largely mapped out for him by the conference discussion and my suggestions to him" (Rehnquist, p. 300; the "conference discussion" refers to the meeting held by the Justices to decide how they'll decide a case). But Lazarus indicates that a clerk was instructed to "come up with something," ie., decide how the Court would justify its decision.
The death-penalty cases tended to reflect a clear polarization between liberal and conservative factions. In the area of abortion, there was a more interesting situation, according to Lazarus' account.
In the 1991-1992 term, the Court was asked to hear the case of Planned Parenthood of Southeastern Pennsylvania v. Casey. The country's pro-choice groups expected the Court's majority to use this case to overrule or eviscerate Roe v. Wade, the 1973 decision giving women a right to abortion. Expecting Roe to be overturned, the pro-choice interests sought a decision in Casey before the 1992 presidential election, on the theory that an overruling of the Roe case would mobilize pro-choice voters. According to Lazarus, Rehnquist didn't want to play that game, and tried to postpone a hearing of the Casey case so that the decision would only come after the elections. But pressure from the liberal justices (Blackmun and, perhaps, Stevens as well) caused the arguments in the case to be arranged so that the decision would come down in summer of 1992, in time for the voters to react, if necessary (pp. 462-463).
However, Roe was not overruled. The three "centrists" on the Court-O'Connor, Souter, and Kennedy-agreed to write an opinion reaffirming a woman's right to abortion (the opinion gave the government a little more leeway to restrict abortions, but in the main the trio's opinion was pro-choice). Lazarus says Souter was influenced by a pro-choice memo from one of his clerks. Kennedy, for his part, saw himself as a judicial statesman who could devise a solution to the abortion problem.
As Lazarus describes it, the troika of O'Connor, Souter and Kennedy worked in secret so that the other justices wouldn't learn what they were doing in the Casey case. "[O]ne reliable source" told Lazarus that the clerk who was helping Kennedy with the case put encryption protection on his computer so that Kennedy's more conservative clerks wouldn't be able to look at the Casey material. The three conspirators met regularly to hone their work.
Finally, the Court ruled that women still had a right to abortion. The liberals Blackmun and Stevens were for upholding Roe. The three conspirators gave their separate opinion which supported the "central holding" of Roe- ie, the right to abortion. This made five votes to uphold abortion rights, and the more conservative justices could only fume (pp. 468-481).
These are examples of the behind-the-scenes stuff going on in cases involving abortion and the death penalty. Another group of cases-those involving race-also divided the court, and Lazarus describes the maneuvering in this delicate area.
The machinations among the justices in the case of Patterson v. McLean Credit Union (1989) have been described in other books, but Lazarus adds some detail. A civil rights law passed in 1866 allowed victims of certain kinds of discrimination to collect large damages. In contrast, the Civil Rights Act of 1964 allowed only limited damages for those who had suffered from discrimination. Since you could get more money under the 1866 law, the civil rights community had an interest in keeping that law as broad as possible. This is the context in which Brenda Patterson sued her former employer for alleged racial harassment on the job. Patterson's suit was based on the 1866 law.
When the Court took the Patterson case, the conservative justices indicated that they might limit the 1866 law so as to cover only discrimination by the government, forcing victims of private discrimination to use the 1964 law. However, after consideration of the matter, the justices unanimously agreed that, based on the precedents, private discrimination was covered by the 1866 law. Then the justices considered the next question: if someone was racially harassed on the job, did that violate the 1866 law (technically, the question was whether racial harassment interfered with the worker's employment contract)?
By 5-4, the justices agreed that Brenda Patterson should win; the alleged harassment was illegal under the statute of 1866. William Brennan, the leading liberal on the Court, wrote the opinion. However, one of the justices who had voted with Brennan changed his mind. Anthony Kennedy had originally voted with the liberals in favor of Patterson. Now he switched over to the conservatives. Lazarus attributes this change of mind to one of Kennedy's conservative clerks. Lazarus also says that this clerk coordinated efforts to get other justices to join the opinion Kennedy wrote to defend his newly-formed views. In any event, there was now a 5-4 majority against Patterson, where previously there had been a 5-4 majority in her favor.
Brennan made a last-minute effort to save the day for his side. He proposed that Patterson should lose the case on a technicality, while at the same time the Court would give a broad interpretation to the 1866 law. This proposal, allegedly hatched by one of Brennan's clerks, didn't work. In Lazarus' words: "The effect was like passing off week-old fish as the catch of the day. It didn't fool anyone and smelled to high heaven" (p. 317). The conservative majority hald, and the 1866 law was given a narrow interpretation. Brennen and the liberals dissented, abandoning their proposal to have Patterson lose on a technicality. Congress later reversed the Patterson decision and gave the law a broad interpretation.
Closed Chambers has caused quite a stir among those people who get stirred up by such things. The basic themes of the book are that the justices are divided ideologically, allow their clerks to exercise too much power, and allow politics to influence their decisions. These notions may seem shocking to those whose ideas about the Supreme Court came from civics classes. To others, Lazarus' revelations are about as shocking as the news that there is gambling going on in Rick's cafe.