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Inside Out

CLOSED CHAMBERS: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.\o7 By Edward P. Lazarus (Times Books: 576 pp., $27.50)\f7

June 14, 1998|BEN GERSON | 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.

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