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| OBJECTION, YOUR HONOR
Edward Lazarus examines the inner workings of the Supreme Court. June 23, 1998 |
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David Gergen speaks with Edward Lazarus about the Supreme Court.
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The Supreme Court considers whether attorney-client privileges extend beyond death.
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Remembering Chief Justice William Rehnquist says there aren't enough federal judges.
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From the outside, the Supreme Court appears to embody the best of the American justice system. Surrounded by myth and mystery, it stands like a larger-than-life force, interpreting the Constitution and upholding national ideals. When it dispenses justice, it does so without bias or compromise.
But Edward Lazarus says things look different from the inside. In his new book, "Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court," Lazarus paints a picture of a court manipulated by clerks, compromised by partisanship, and swayed by arguments that are based on the "shallow calculus of five votes beats four."
Lazarus' perspective comes from his own clerkship for Justice Harry A. Blackmun in 1988. This 12-month apprenticeship gave Lazarus an intimate knowledge of how the court works and left him with an "irrepressible sense of disquiet." In fact, he says he was so disturbed that he broke the unwritten code of silence binding clerks in order to write the book.
"I was writing because I felt a dismay, at what I had seen go on at the court, and what I saw through my research went on during other periods in recent history," said Lazarus during an interview with The NewsHour's David Gergen. "It seemed to me that this was a public institution, where, as Justice Brandeis put it, sunshine can be the best."
What did Lazarus see during his clerkship? Are Lazarus' critiques of the Supreme Court valid? Does it matter if partisan politics influence the decisions of the nine Justices?
Edward Lazarus will now answer your questions...
Tom Bradley of Portland, ME asks:
Did you ever have to draft a decision setting forth a rationale that you did not believe was legitimate, and did you or other clerks resist using such a rationale?
Edward Lazarus responds:
I certainly remember working on opinions where the Court had reached a result that differed substantially from my own views. Indeed, I remember several cases where Justice Blackmun's views and my own were quite distinct -- and I considered this disagreement a healthy aspect of the clerk-Justice relationship. At the same time, I don't recall working on an opinion where I thought the Court's decision was based on an illegitimate point of view. I can't speak for other clerks on this point.
In general, I always thought it was my responsibility in the early stages of a case to give Justice Blackmun my best view of the law -- whatever I thought his views might be. But once Justice Blackmun had made up his mind on a case, my job shifted and it was then my duty, when assisting him, to do the best I could to see the case from his perspective.
Back to the top....
David Coleman of Murrysville, PA asks:
Every year it is reported how the Supreme Court declines to review the great majority of cases submitted to it. How do the Justices decide what to take on? Are they all involved in the decision? Does the majority rule? Is there a maximum per year? Do applicants have ways to manipulate the system to make their case more likely or less likely to be heard?
Edward Lazarus responds:
It is certainly true that the Court does not review most of the cases that are submitted to it. Indeed, they accept for review only about 100 cases of the roughly 7500 cases where one party or the other seeks the Court's attention. The decision whether to take a case for review is one of the few decisions at the court where the majority does not rule. If four or more of the nine Justices vote to review a case, then it is accepted.
As this suggests, the Justices themselves are all involved in the decision whether to grant review in each case. At the same time, for reasons of efficiency, eight of the nine Justices (all but Stevens) pool their resources when sorting through the cases. A clerk for one of the Justices writes a memo summarizing each case for all eight Justices in the pool and makes a recommendation about whether the Court should hear that case. Naturally, the Justices are free to disregard that recommendation -- and often do.
There is no fixed rule for how many cases the Justices will accept in a given year and the number has varied between about 80 and about 160 in the last decade. 160 cases proved to be a crushing load, and I doubt we'll see a return to that number any time soon. As for applicants manipulating the system, I don't think this really happens. The decision whether to review a case is made on the basis of written briefs, and there is little an applicant can do except put forward the strongest possible reasons for the Court to take an interest.
Jean Garvey of Junction City, KS asks:
How do you compare Chief Justice William Rehnquist's leadership of the court with that of previous chief justices? What has been his main impact on the court? Do you see him as responsible for many of the problems you discuss in your book?
Edward Lazarus responds:
I am quite critical in my book of Chief Justice Rehnquist. I believe that he actively suppresses debate and deliberation at the Court and that he has, at times, exacerbated the Court's internal divisions, I also view several of his leading opinions as patently inadequate to the subject matter at hand. So, the short answer is: yes, I do hold him significantly responsible for the problems I see at the Court.
As for comparing Rehnquist to other Chief Justices: Rehnquist's predecessor, Warren Burger, was much maligned as petty and manipulative. For example, other Justices thought that Burger employed deceptive and dishonest strategies for keeping control of majority opinions even in cases where he was in the minority. Rehnquist has gotten much higher marks for this and other aspects of his administration. At the same time, Rehnquist displays few of the leadership skills that, in my view, marked Earl Warren's tenure -- specifically, Warren's efforts to built broad majorities for important opinions and to preserve collegiality within the Court.
As for Rehnquist's impact as Chief, I think his lasting legacy will be the court's sharp move to the right in three areas: cutting back the rights of criminal defendants, increasing the rights of states vis-a-vis the federal government, and curtailing broad remedies for the nation's history of racial discrimination.
Jonathan Raff of Milwaukee, WI asks:
It is a known fact that the Justices rely excessively on their clerks to produce opinions, with that dependence extending to the point where many of the Justices' writing styles change every term. What do you feel should be done to combat this problem of recent law school graduates wielding this enormous power?
Edward Lazarus responds:
I agree with you that many Justices do depend too heavily on their clerks and that a particular problem is an excessive delegation of opinion writing. Gone are the days of Holmes, Cardozo, and Jackson whose greatness as legal thinkers was enhanced by their personal styles. Now, clerks too often make the crucial choices about what facts and precedents to include in an opinion and about how to characterize those facts and precedents. In addition, by delegating the drafting of opinions, Justices miss out on the rethinking and re-examination of their views that would inevitably flow from having to wrestle with the task of writing.
There is, of course, an easy solution to this problem -- but one out of anyone's control except the Justices themselves. They should simply stop delegating so much. Perhaps calling attention to this issue -- and several scholars and judges have begun doing so -- will prod the Justices in this direction.
L. Mall of Lantana, FL asks:
Many people advocate television cameras in the Supreme Court. How do you respond to the concern that the demystification of the Court, achieved through familiarity with the Court's inner workings and its humanity, would irretrievably erode our respect for the Court and its resultant authority?
Edward Lazarus responds:
I'm not a big fan of mystification. The Justices are extremely powerful, unelected, life-tenured public servants. The public has both a right and a need to appreciate the quality of their work. After all, the source of the Justices' legitimacy -- the reason we give them the power to decide many of our most intractable social dilemmas -- is our belief that, through reasoning, wisdom, and imagination, they will raise their decisions about the trade-offs of everyday politics. To earn our respect, they do not need to do this job perfectly, only conscientiously. But if they are failing in their mission, we need to know this too.
It is certainly true that the Court needs to retain the respect of the public to maintain its authority. Indeed, the Court's power depends on the public's willingness to obey its command. But if the Justices are doing their jobs wisely and well, I have little fear that familiarity would breed contempt. Perhaps just the opposite. Perhaps the Court would stand out -- as it ought -- as an institution capable of withstanding the divisive and often destructive politics of our time.
My thanks to all the participants for their excellent questions.
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