Edward Lazarus, author of the recently released book Closed Chambers, claims in a Washington Post editorial that "there is no ethical prohibition, formal or otherwise, on a former clerk… conduct[ing] a serious investigation of the Court's processes… using the standard methods of a journalist and scholar."¹ Contrast his willingness to disclose Supreme Court secrets with the protection he affords his sources in Closed Chambers and the argument proceeds: Mr. Lazarus fails to provide the reader with ethical journalism.² His product suffers from an inflated sense of self-importance.

The American Bar Association (ABA) interprets the purpose of the Code of Conduct as to protect from dissemination sensitive material by any clerk at any time. Stephen Wermiel of the ABA writes, "U.S. Supreme Court clerks are expected to lock the secrets of their writings and meditations inside themselves for the rest of their lives."³ Gretchen Craft Rubin, a clerk for Justice Sandra Day O'Connor during October Term 1995-96 comments, "[his] vow of confidentiality enables him to cloak his boss in a secrecy that he strips away from the other justices. We learn about conversations, daily routines and decision-making in other chambers, but not in the one chamber Lazarus knows firsthand."⁴ Clearly there are legitimate grounds on which to question Lazarus's adherence to the Code.

His defense rests with a citation from "Effective Date of Compliance" Section 4, which reads: "A person to whom this code becomes applicable shall comply with it immediately upon commencement of his or her clerkship and throughout such clerkship."⁵ However, Canon 2 stipulates that a law clerk "is in a position to receive highly confidential circulations from the chambers of other Justices, and owes a duty of confidentiality with respect to such material similar to the duty owed to the Justice employing the clerk." Canon 3 further states that "a law clerk should never disclose to any person any confidential information received in the course of the law clerk's duties, nor should the law clerk employ such information for personal gain." If there should be any question of a loophole, "federal law makes it a crime to convert government records to personal use without authorization (18 U.S.C. Section 641) or to remove records deposited with a federal court without authorization (18 U.S.C. Section 2071)."⁶ Various anecdotes and damning character dissection were recorded or remembered and used by Lazarus to promote what is otherwise an historical novel. They constitute the intellectual property of those who must employ a high degree of privacy so as to maintain legitimacy. This logic notwithstanding, Lazarus still defends his work as "an act of devotion not disloyalty."⁷

Clerks are now prevented from ever revealing any information about the Court, Justice Rehnquist having responded to the possibility of another Closed Chambers. Even without this tightening of the reigns, other clerks interpreted their "duty of confidentiality" more narrowly than Mr. Lazarus. "[T]he conservatives seem to take the Court's code of silence more seriously than does this Blackmunite" chastises The Wall Street Journal.⁸ Lazarus deserves such ridicule because "many of the people [he] casts in an unfavorable light &endash; including fellow Supreme Court clerks &endash; cannot answer his claims without themselves violating the Code of Conduct. Other people maligned in the book have died."⁹ Ms. Rubin, another former clerk, feels compelled to uphold the Code for reasons other than those of a purely legal nature: "This book exploits the fact that his account won't be challenged by other participants who feel honor-bound to respect the Court's confidentiality."¹⁰ He crossed that crucial line between the courage of conviction and "a poor sort of courage to betray the trust of your colleagues for your own advancement."¹¹ This advancement has manifested itself in a screenplay contract from Warner Brothers Entertainment Corporation. However educational and entertaining it might be, one must question the "devotional" nature of that sort of undertaking.

Returning to the more pointed question, even if the Code of Conduct wasn't entirely explicit at the time Closed Chambers was published there are still two major ethical questions a skeptical reader must ask. First, Lazarus asserts in his Author's Note with regard to sources of information: "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."¹² Richard Painter of The Wall Street Journal calls that sort of source material and citation "nonsense."¹³ Additionally, Mr. Painter asserts:

[T]o claim that a person bound by confidence can reveal that confidence so long as it is 'reconstructed' from other sources. After all, the knowledge of confidential information itself is what made the act of 'reconstruction' so easy.¹⁴

In defense, The Economist espoused a more proficient source of support for the presence of a breach of the code; the Supreme Court "as one of the three branches of the federal government should be open to the same scrutiny as the other two, and… pledges of secrecy should be broken if that is in the public interest."¹⁵ Nonetheless, "Mr. Lazarus's revelations uncover no wrongdoing, and so do not justify his betrayal of trust."¹⁶

In response to the aforementioned argument, Mr. Lazarus disagrees. He writes that "in the end, the Court is a public institution, the Justices are public servants and the integrity of their work is a subject of crucial public importance."¹⁷ He cites Justice Felix Frankfurter who maintained that "Justices must be kept mindful of their limitations and their ultimate public responsibility by a vigorous stream of criticism expressed with candor, however blunt."¹⁸ The American Bar Association concurs that "politicking and backbiting sometimes exist among nine strong personalities who must share personal space for the rest of their lives [and] ought not to be a national secret."¹⁹ Lazarus recounts that "Justice Holmes once described himself and his brethren as nine scorpions trapped in a bottle."²⁰ All withstanding, there is a substantial difference in kind between acknowledging the tension between ideological factions within the Court and the cornucopia of undocumented assertions and innuendo that is Closed Chambers. Lazarus is certainly capable of making his argument using documented examples contained within the public record (for example, the opinions, concurrences, and dissents of Justice Scalia) without using hearsay such as that from Justice O'Connor. He writes that O'Connor

was far from the most intellectually secure Justice. By common account, she admired the sheer power of Scalia's brain and coveted his approval. But she also had a certain patrician pride, a self-image that placed her above the nastiness in which Scalia seemed to revel.²¹

Are we to dismiss Justice O'Connor's opinions as less rigorously thought out than Justice Scalia's? In the end, one must question the value of disseminating such information. Is there legitimate social scientific value in making these personal issues public?

The second ethical problem raised by Edward Lazarus is his claim that he is the most competent to write Closed Chambers because of his position as a clerk. Mr. Lazarus refutes criticism when he writes, "it is perverse to argue that the role of illuminating the Court's processes cannot be performed by a former employee, but only by outsiders less able to penetrate the shroud of secrecy in which the Court insists on cloaking itself."²² His logic is faulty, however, because Lazarus offers precious little of real significance that isn't readily available to any other competent individual. Future chroniclers may not be privy to quips and anecdotes but, in turn, the quality of their analysis should also improve as a result.

If, as the New York Review of Books opined, Lazarus's "derisive characterization of some Justices… show Lazarus to be churlish and indiscreet but not unethical,"²³ the reader should examine to what degree his characterization of individual Justices undermines his attempt to relate an historical narrative. For although there are

[E]xcellent and accessible accounts of important but not well-known rulings invoking the death penalty and habeas corpus jurisdiction… most of the critical attention it is attracting is directed toward Lazarus's harshly negative evaluations of the Justices, their clerks and of the published opinions they collaborate in writing.²⁴

Lazarus uses psychological explanations, not reason rooted in ideology to explain why Justices decided cases in the manner they did. Despite moments of logical argument, "the author resorts to social or cultural explanations for the Justices' failure to reason wisely and justly."²⁵ This type of commentary neglects "the intellectual sources of judicial moderation, which include institutional and craft concerns, and the complexity of constitutional analogies."²⁶ The Court must continually legitimate its own existence if it is to maintain power; Justices are not free to exercise an arbitrary rule of law dependent only on their particular ideology. The existance of even piecemeal stare decisis has largely been forgotten or ignored by this author.

In fact, just a few pages into his novel Lazarus accuses the Justices of "disregard[ing] the traditions of law, invok[ing] intellectually dishonest arguments, engag[ing] in glaring inconsistencies, and reduc[ing] their deliberations to the shallow calculus of five votes beats four."²⁷ However thought provoking, he provides little substantiating evidence of these revelations.

Legitimate constitutional arguments are not limitless; they may take several forms familiar to law. They may be based on history, on precedent, on the text, on inferences from the way our government is structured, on appeals to ethics, or on prudential considerations about the consequences of a decision. Often these modes of argument are used in combination, melded into a convincing whole.²⁸

Lazarus acknowledges that the basis of the Court's authority is its reputation. Yet, he does little to bolster that reputation.²⁹

The Supreme Court relies upon the notion that respect is due its opinions even if disagreement exists among members of the public. Such authority "depends on certain social preconditions… the Court must not appear simply to have been captured by short-term victors in ordinary politics… [and] it must not stray too far beyond popular opinion."³⁰ Lazarus is unable to see the centralizing forces at work in controversial cases like Planned Parenthood of Southeastern Pennsylvania v. Casey.³¹ The Court prevented abortion from being federally criminalized by relegating to the states the authority to discourage abortion and yet "just such an effort to defend the Court against any popular suspicion of right-wing capture" is interpreted by Lazarus as "the opposite of the coherent, principled decision-making to which the Court should regularly aspire."³² Lazarus seems not to realize that the Justices can't indulge in intellectual dishonesty or glaring inconsistency without self-correcting simply because therein lies the essence of Court power. Respect is not a guarantee, it is earned.

Part of the reason why Lazarus doesn't perceive the Court's moderation is because he still lives in the shadow of his limited experience as a clerk. He "absurdly magnifies out of proportion the importance of the term he witnessed,"³³ like other clerks who "suffer from an exaggerated sense of their own importance… Lazarus's characterization of his own year as a term that 'must rank with the New Deal watershed of 1937 and the year of Brown, 1954, as the most decisive in this century' is risible."³⁴ Such a "grandiose"³⁵ labeling of his year as a clerk for Justice Blackmun in 1988-89 fails the test of factual accuracy (he begs the question, was Roe v. Wade³⁶ decided in the 20th century?) and further weakens his credibility. Lazarus's opinion of the term he worked and, by extension, himself adds little to a narrative already plagued by significant negativity directed at his employers and the institution they embody.

Certainly the Court has experienced other eras of difficulty between members who cannot seem to cooperate. The Court "has been through many periods of uncertainty and division &endash; usually reflecting divisions in American itself &endash; and then regained its stature."³⁷ The American Bar Association comes to the same conclusion: "the description of a deeply divided Court could apply to many different periods of the Court's history, including the decades preceding the story Lazarus tells."³⁸ Now that Brennan, Marshall, and Blackmun are gone, so is much of the bitterness between the Warren Court old guard and the new Republican administration appointees.³⁹ In any case, "you would not know from reading Closed Chambers that more than 40% of all Supreme Court decisions, on average, are unanimously decided."⁴⁰ Lazarus seems to exploit what divisiveness there exists for the benefit of his argument without regard for accuracy.

Closed Chambers' subtitle reads, 'The First Eyewitness Account of the Epic Struggles Inside the Supreme Court,' called "somewhat misleading" by The Nation because such a small portion of the book's material qualifies as "eyewitness."⁴¹ Lazarus concedes that "some of the more controversial revelations in the book including events that occurred during my clerkship year, are things of which I was unaware &endash; or dimly aware &endash; at the time."⁴² Without a doubt "the book is not the tell-all it has been cracked up to be."⁴³ Lazarus isn't Toto "pull[ing] back the crimson curtain to reveal the Court's human face… as he sees himself doing"⁴⁴ Furthermore, there is another book written by a former Supreme Court clerk about his experiences while employed by Justice Lewis F. Powell: Serving Justice by J. Harvie Wilkinson 3d, currently Chief Justice of the U.S. Court of Appeals for the Fourth Circuit, published in 1974.

Factual inaccuracy doesn't end with the subtitle, unfortunately. Lazarus writes, "Justice O'Connor so distrusted Brennan &endash; for having hoodwinked her in some unnamed past case &endash; that she refused to join any of his majority opinions for the Court."⁴⁵ The public record easily disproves this assertion: "In Lazarus's year, O'Connor joined four Brennan majority opinions, and in the following year she joined seven."⁴⁶ (One was a labor case, Reed v. United Transportation Union,⁴⁷ another a child welfare case, Indians v. Holyfield.⁴⁸) Lazarus also accuses Chief Justice Rehnquist of relisting the Casey abortion case for several weeks until after the Presidential election of 1992. According to record of the docket, however, Casey was relisted only once: "Rehnquist may or may not have wanted to delay Casey but he did not do what Closed Chambers says he did."⁴⁹ These errors serve to characterize the Justices differently from that which they are: highly rational, brilliant legal scholars.

Lazarus is patronizing toward Justice Kennedy, writing that he is "viceless to the point of being a bit of a 'priss' in the eyes of some colleagues"⁵⁰ and that he has an "apparent preoccupation with being liked and thought of as 'judicious' and 'reasonable,'"⁵¹ a "craving for approval."⁵² Lazarus exposes Justice Marshall's twilight years as "embarrassing" when he becomes confused in a death penalty case.⁵³ He accuses Justice O'Connor of being overtly results-oriented⁵⁴ and Justice Thomas of "partisanship as well as indifference to the institutional culture to which he had ascended."⁵⁵ Here again he insults the Justices' own respect for the institution of the Supreme Court.

Lazarus does make the important point that Court opinions are sometimes unintelligible by lower courts and lawyers. One solution is to explore the scope of civil liberties through legislative means because "the law, after all, is too important to be left to the lawyers."⁵⁶ Lazarus believes that "resolving complex issues through ballot initiatives [is an] expression of the frustration-born populist impulse abroad in the land."⁵⁷ An overreliance on clerks may be at fault, as Justices in large part rely upon their assistance in writing drafts, making for "turgid, footnote-laden opinions that are hard for lower courts to follow."⁵⁸ However, the reader must be wary of Lazarus's penchant for melodrama as he describes the line "albeit not a bright one, between the usual clerk role of offering one's best advice then carrying out instructions, and the darker realm of scheming,"⁵⁹ what he calls "the black art of political or strategic clerking."⁶⁰ This rhetoric doesn't surprise Steven Wermiel writing in The Journal of the American Bar Association. He asserts that because "it is difficult to share Lazarus's passion on the issue of clerks drafting opinions; it is no secret that clerks have drafted the overwhelming majority of opinions the past 40 years."⁶¹ Lazarus is particularly damning of conservative clerks "who seek to influence their Justices… as part of a sinister cabal, while liberal clerks convince their bosses through the sheer force of their arguments."⁶² Such criticism is duly warranted; see 'The Cabal Against the Libs' chapter for ample evidence.

If clerks are indeed so influential, how can Lazarus claim that the minds of Justices are already made up before argument and conference?⁶³ If Justices exercise a politically motivated sense of the law, won't that condition only worsen if they are unable to discourse privately among themselves and with their law clerks without fearing a Closed Chambers repeat performance?⁶⁴ These are important questions for an author whose credibility is riddled with doubt. Lazarus does confirm, however, that "the Warren Court politicized the legal process by seeking 'social justice' at the expense of the rule of law"⁶⁵ when he writes that "Chief Justice Earl Warren significantly changed the meaning and scope of the nation's foundational law"⁶⁶ and that "the constitution's Framers designed the Court to be a… safe harbor for our most enduring basic values."⁶⁷ At least a generation of legal scholarship has recognized that the potential for creating policy from the bench can be limited if the words of Justice Holmes are kept close at hand: Judges "do and must legislate [but] do so… interstitially… confined from molar to molecular motions."⁶⁸ To his credit, Lazarus acknowledges the tradition-oriented aspect of law and legal practice. The most appropriate of those traditions would have been the maintenance of the vow of silence.

The Economist asks an important question about the author of Closed Chambers: "If the messenger is tainted, must you ignore his message?"⁶⁹ The answer must be a qualified 'no.' With imperative conditions, Lazarus's book possesses some worth. It is, after all, written well. The historical analysis is sometimes fair. Although "not an accurate and dependable contemporary portrait" of the Court,⁷⁰ there are chapters full of fascinating detail about capital punishment, racial discrimination, and abortion legal history. Still, there are many better books of similar subject matter without Lazarus's insulting drama.

Footnotes

1. Edward Lazarus,The Supreme Court Must Bear Scrutiny, The Washington Post July 6, 1998

2. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

3. Stephen J. Wermiel, Hear Ye, Hear Ye, The American Bar Association Journal v. 84 June 1998

4. Gretchen Craft Rubin, Betraying a Trust, The Washington Post, June 17, 1998

5. Edward Lazarus, The Supreme Court Must Bear Scrutiny, The Washington Post July 6, 1998

6. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

7. Edward Lazarus, The Supreme Court Must Bear Scrutiny, The Washington Post July 6, 1998

8. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

9. Id.

10. Gretchen Craft Rubin, Betraying a Trust, The Washington Post, June 17, 1998

11. Id.

12. Closed Chambers, pg. xi

13. Richard Painter, A Law Clerk Betrays the Supreme Court, The Wall Street Journal April 13, 1998

14. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

15. The Economist, v. 347 no. 8066 May 2, 1998

16. Id.

17. Edward Lazarus, The Supreme Court Must Bear Scrutiny, The Washington Post July 6, 1998

18. Id.

19. Stephen J. Wermiel, Hear Ye, Hear Ye, The American Bar Association Journal v. 84 June 1998

20. Closed Chambers, pg. 26

21. Id. pg. 416

22. Edward Lazarus, The Supreme Court Must Bear Scrutiny, The Washington Post July 6, 1998

23. Kathleen Sullivan, Behind the Crimson Curtain. The New York Review of Books v. 45, October 8, 1998

24. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998

25. Ben Gerson, Inside, The Los Angeles Times Book Review, June 14, 1998

26. Kathleen Sullivan, Behind the Crimson Curtain. The New York Review of Books v. 45, October 8, 1998

27. Closed Chambers, pg. 9

28. Id., pg. 248-9

29. Id., pg. 287

30. Kathleen Sullivan, Behind the Crimson Curtain. The New York Review of Books v. 45, October 8, 1998

31. 505 U.S. 833 (1992)

32. Kathleen Sullivan, Behind the Crimson Curtain. The New York Review of Books v. 45, October 8, 1998

33. Id.

34. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998

35. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

36. 410 U.S. 113 (1973)

37. The Economist, v. 347 no. 8066 May 2, 1998

38. Stephen J. Wermiel, Hear Ye, Hear Ye, The American Bar Association Journal v. 84 June 1998

39. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998

40. Ben Gerson, Inside, The Los Angeles Times Book Review, June 14, 1998

41. Doug Ireland, Trahison des Cleres, The Nation, v. 266 no. 22 June 15/22, 1998

42. Closed Chambers, pg. xi

43. Kathleen Sullivan, Behind the Crimson Curtain. The New York Review of Books v. 45, October 8, 1998

44. Id.

45. Closed Chambers, pg. 277

46. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998

47. 488 U.S. 319 (1989)

48. 490 U.S. 30 (1989)

49. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998

50. Closed Chambers, pg. 251

51. Id., pg. 427

52. Id., pg. 428

53. Id., pg. 446-7

54. Id., pg. 422

55. Id., pg. 457

56. Doug Ireland, Trahison des Cleres, The Nation, v. 266 no. 22 June 15/22, 1998

57. Closed Chambers, pg. 10

58. Max Boot, The Court as Seen by a Courtier, The Wall Street Journal v. 101 April 8, 1998

59. Closed Chambers, pg. 321-2

60. Id., pg. 267

61. Stephen J. Wermiel, Hear Ye, Hear Ye, The American Bar Association Journal v. 84 June 1998

62. Daniel E. Troy,Liberalism's Gulity Conscience, National Review v. L no. 10 June 1, 1998

63. Stephen J. Wermiel, Hear Ye, Hear Ye, The American Bar Association Journal v. 84 June 1998

64. Richard Painter, A Law Clerk Betrays the Supreme Court, The Wall Street Journal April 13, 1998

65. Daniel E. Troy,Liberalism's Gulity Conscience, National Review v. L no. 10 June 1, 1998

66. Closed Chambers, pg. 7

67. Id. pg. 11

68. Southern Pacific Company v. Jensen, 244 U.S. 205, 221 (1917), Holmes, J., dissenting (cited in Kathleen Sullivan, Behind the Crimson Curtain, The New York Review of Books v. 45, October 8, 1998)

69. The Economist, v. 347 no. 8066 May 2, 1998

70. David J. Garrow, Dissenting Opinion, The New York Times Review of Books v. 103 April 19, 1998