Commentary Magazine


Closed Chambers by Edward Lazarus

Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court
by Edward Lazarus
Times Books. 516 pp. $21.50

Nearly twenty years ago, the Washington Post reporters Bob Woodward and Scott Armstrong published The Brethren, “an account,” according to the book’s introduction, “of the inner workings of the Supreme Court from 1969 to 1976.” That account was based on interviews with more than 200 anonymous sources, including Justices and law clerks, and upon unpublished documents, including internal Court memoranda and draft opinions that had likewise been made available to the authors by confidential sources.

Closed Chambers, which is about the inner workings of the Supreme Court in the 1980′s and 1990′s, is essentially a sequel to The Brethren. Like The Brethren, it relies, according to an author’s note, upon “dozens of interviews” with people (presumably including law clerks) who spoke with the author “on the condition that [he] would not reveal their names” and upon “unpublished draft opinions and memoranda,” only some of which are publicly available.

There is, however, an important difference between the two books. While the authors of The Brethren were journalists dependent on information provided to them by Supreme Court “insiders,” the author of Closed Chambers, Edward Lazarus, is himself an insider:

he was a law clerk for Justice Harry Blackmun (who has since retired) during the Supreme Court’s 1988-89 term.

Like The Brethren, Closed Chambers has provoked controversy. This is so not only because Lazarus has arguably violated written rules, and has certainly violated unwritten ones, against the disclosure by former clerks of (in Lazarus’s words) “the private decision-making of the Justices,” but also because his book is so harshly critical of that decisionmaking process. For the main thesis of Closed Chambers is that Supreme Court Justices are hypocrites.

The thesis is stated most starkly in the book’s first chapter:

[The] image of the Court [that I cany with me] 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.

In support of this contention, Lazarus offers extended discussions of many of the leading death-penalty, civil-rights, and abortion cases decided by the Supreme Court during the 1980′s and 1990′s. For most of these cases, he describes how the Court reached its decision, taking the reader through the case from beginning to end—a path that includes the petitioning party’s request for review, oral argument, the vote at the Justices’ conference, the circulation of draft opinions, and the Court’s announcement of its ruling. For most of these cases, too, Lazarus condemns both the result and the way it was reached. Indeed, hardly a chapter in Closed Chambers ends without charging that one or another decision was the product of unprincipled, intellectually dishonest, and politically motivated decision-making.

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Though Lazarus is plainly a liberal, he does not hesitate in Closed Chambers to criticize liberal Justices. He has little patience, for example, for the “living Constitution” jurisprudence of the late Justices William Brennan and Thurgood Marshall, who held down the far-left flank of the Court when Lazarus was clerking. He recognizes that the position that the death penalty constitutes cruel and unusual punishment under all circumstances—the basis on which Brennan and Marshall dissented in every capital case—is, at bottom, nothing more than a political view masquerading as an interpretation of the Eighth Amendment. Lazarus also criticizes the reasoning (such as it is) in Roe v. Wade, the 1973 decision, written by his former boss, that recognized a constitutional right to an abortion—and that has been repeatedly reaffirmed by the Court during the last quarter-century.

Like many liberals who are critical of other liberals, however, Lazarus, apparently fearful that someone might mistake him for a conservative, is quick to assert that the Court’s conservatives are at least as bad. While liberal Justices are unprincipled because they pretend that their political views have a basis in the Constitution, conservative Justices are unprincipled, according to Lazarus, because their votes and opinions belie their professed belief in a distinction between politics and constitutional law. In support of this claim of conservative hypocrisy, Lazarus points out that, in voting to invalidate affirmative-action plans, Chief Justice William Rehnquist has abandoned his usual practice of deferring to state and local legislatures, while Justice Antonin Scalia, rather than seeking to discover the “original meaning” of the constitutional provision at issue, has appealed to general principles of “morality.”

But while Lazarus claims to believe that liberals and conservatives are equally at fault for turning the Supreme Court into a political institution, he is unable to disguise the fact that most of his hostility is directed at conservatives. When the Senate rejected the nomination of Robert Bork, for example, Lazarus says that he “rejoiced”; ten years later, he is “still glad Bork lost.” Indeed, Lazarus is confident that “Bork would have been an intemperate and partisan Justice, arrogant about a judicial philosophy he only selectively practiced and could not effectively defend.”

Such venomous language appears nowhere else in Lazarus’s descriptions of individual Justices (or would-be Justices). To Lazarus, Bork, who believes that federal judges should generally defer to the democratically elected branches of government, is “intemperate” and “arrogant,” but Justice Brennan, who believed that his political views should have the force of constitutional law, was merely “partisan.” As for Justice Blackmun, who inserted a right to an abortion into the Constitution (no one, including him, is exactly sure where), far from being “intemperate” or “arrogant,” he “has been the most empathetic Justice in recent times, and very likely in the history of the Court.”

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Is there anything to Lazarus’s charge that Justices routinely engage in politically motivated decision-making? It is hardly an example of original thinking to say, as Lazarus does, that judges are constantly tempted to substitute their political views for the task of interpreting the Constitution, and that many judges are unable—if they even try—to resist the temptation. But Lazarus is quite wrong to say that conservatives are as blameworthy as liberals—and wronger still to suggest that conservatives are more blameworthy. The contrary is true.

The conservative approach to constitutional interpretation is premised, as Lazarus recognizes, on the distinction between law and politics, and on the need for judges to disregard their political views when passing upon constitutional challenges to legislative enactments. Conservative Justices who render a decision motivated by conservative politics are therefore departing in a fundamental way from a jurisprudence that is inherently apolitical.

The liberal approach to constitutional interpretation, by contrast, particularly in its more extreme versions (which, it should be noted, are rarely employed on the current Supreme Court), is, by its very nature, essentially indistinguishable from political liberalism. When liberal Justices render a decision that is motivated by what can only be characterized as liberal politics—when, for example, they conclude that a legislative enactment is unconstitutional on the basis of “evolving standards of decency,” a generalized “right to privacy,” or a conviction that a particular practice “shocks the conscience”—they are being faithful to a jurisprudence that is inherently political. That is why the method of constitutional interpretation employed by liberal Justices almost invariably—one might even say necessarily—leads to decisions that are politically liberal, while the method of constitutional interpretation employed by conservative Justices leads to decisions that politically may fall one way or another.

Edward Lazarus is to be commended for writing a book that decries the politicization of the judiciary. But he is either unable to see or too fainthearted to acknowledge that it is his fellow liberals who are principally responsible for this unfortunate state of affairs. This intellectual failing is at least as disturbing as the moral failing reflected in Lazarus’s brazen disclosure of Court confidences.

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