Treason of a clerk

...The inescapable fact in Patterson is that the liberals would have won had Justice Brennan simply written an opinion that White—JFK's deputy attorney general—could have stomached...

...After Bork was interrogated by Senator Joseph Biden's judiciary committee for more than thirty hours, the full Senate rejected his nomination...

...Overall, the picture he paints of the Supreme Court is one of a political institution—though at times more obsessed with its own politics than with national politics...

...Leading the fight against Judge Bork was Senator Edward Kennedy, who brazenly proclaimed that in "Robert Bork's America, women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution," and so on...

...When the court agreed to hear the case, conservatives (led by the Reagan Justice Department) urged the court to use it to overturn Roe v. Wade...

...Just as the trial of Julius and Ethel Rosenberg and the clash between Alger Hiss and Whittaker Chambers dominated the political imagination of an earlier generation, the Bork hearings provided a forum for one of the most ideologically polarizing debates of the Reagan era—the fight over the direction of the Supreme Court and, in particular, the question of abortion...

...Liberals feared that Bork's confirmation would mean the demise of affirmative action, sharp limitations on petitions from death-row inmates, and, most important, the end of the court-created right to abortion...

...Once all the maneuvering by the justices and their clerks was done, Patterson left the law exactly where it started—limited to banning discrimination in the making and enforcement of contracts...

...Brennan's draft opinion, even after he moderated it to accommodate some of Kennedy's initial comments, sought to turn Patterson into a far-reaching civil-rights decision, effectively holding that all on-the-job racial discrimination violated the 1866 Act...

...In the end, the conservative victory in Patterson was hardly what conservatives had hoped for in that the court did not overrule Runyon...

...Although by the time Bork was nominated to the court, most of the leading figures of this "rights revolution"—Chief Justice Earl Warren and Associate Justices William Douglas, Arthur Goldberg, and Abe Fortas—had long since retired, the balance of power on the court was still very much up for grabs...

...And his argument is that "cabalist" clerks in the chambers of the conservative justices engaged in a mission to capture the vital center of the Supreme Court...

...Thus, it was especially painful for Lazarus and his fellow liberals— many of whom had been volunteers in the anti-Bork army—to see the Left lose a number of important cases during the year in which they clerked at the court...

...By the summer of 1987, despite Reagan's landslide reelection over Walter Mondale, the conservative revolution had stalled...

...To its credit, however, Closed Chambers provides fresh insights into both the workings of the court and the relations among its members...

...For example, the court held in Richmond v. Croson by a vote of 6-3 that a city ordinance designed to funnel a specified percentage of building contracts to minority bidders violated the clause of the Constitution guaranteeing "equal protection under the laws...

...Rather, Lazarus has written a brief...

...But the undeniable fact is that the liberals, led by Justice Brennan, could not even hold on to Justice White in Patterson...

...The judicial principle behind this inertia is called stare deci-sis, and one of its virtues is that it is supposed to keep the court from creating undue uncertainty among the lower courts...

...But the key factor in all these civil-rights cases— and indeed in all the cases the liberals lost that term—is that the four conservative justices (Chief Justice Rehnquist and Associate Justices Scalia, O'Connor, and Kennedy) were joined by at least one other member of the court...

...Lazarus makes much of the fact that Kennedy apparently switched his vote while the court was considering the case—ultimately writing the majority opinion for Rehnquist, Scalia, O'Connor, and White...

...Lazarus's argument, however, doesn't hold up...

...Unlike liberal judges who saw the Constitution as a malleable, "living" document, always able to grow to encompass the latest unenumerat-ed individual or group right, Bork had become a conservative hero by construing the Constitution according to its plain language and the intentions of its drafters...

...Edward Lazarus recalls that in the summer of 1987, as he was about to start a clerkship with Judge William Norris (whom he describes as "a leading liberal") on the Ninth Circuit Court of Appeals, he "rejoiced" when he learned of Bork's defeat...

...Of course, this was in all likelihood just as common among liberal clerks, and in fact, Lazarus's story proves in the end to be a tale less of right-wing scheming than of left-wing incompetence...

...after all, the justices don't have a lot of people with whom they can discuss pending cases...

...In 1988, even without winning Kennedy's vote, the liberals on the court had a guaranteed majority in every case as long as there were no defections...

...Like many of his generation, Lazarus has as one of his most powerful political memories the waning days of the Nixon White House, when a Nixon-appointed chief justice led a unanimous court in rejecting the president's claims of executive privilege—essentially dooming the Nixon presidency (he resigned seventeen days later...

...v. Antonio and Martin v. Wilks, liberals failed to persuade a majority of the justices...

...In the end, Webster proved a disappointment to all—the court neither reversing Roe nor rejecting Missouri's limited restrictions on abortion...

...Yet White has never been described as "clerk-driven," and Lazarus does not even try to argue that this justice was somehow a pawn in the cabal's stratagem...

...This show of force and integrity by a court, in which three of the votes cast against the president came from justices he appointed, instilled in Lazarus "an essentially idealized image of the Supreme Court...

...Regarding Lazarus's theory, however, what is important about Webster is that on the most political issue of all, abortion, the ostensible "cabal" could not convince either Kennedy or O'Connor to overrule Roe...

...Because of the veil of secrecy that covers the Supreme Court, and because most clerks have honored the Code of Conduct and kept the confidences of the court, Lazarus—a former clerk to now-retired Justice Harry Blackmun—has already provoked controversy with his book...

...The following October, as the 1988-89 term commenced, Lazarus found himself at a Supreme Court that was only one step removed from the Bork storm...

...All eyes were fixed on Kennedy, because as Powell's replacement, he was a potential swing vote...

...At least once in each of the last two decades, a Supreme Court confirmation battle has turned into a political donnybrook that rivals a celebrity criminal trial or a political convention with its press feeding frenzies and talk-radio commentaries...

...One of the chief roadblocks was the Supreme Court...

...It is not even the case that Lazarus's time at the court consisted entirely of triumphs for the conservatives...

...It was Justice White—a Democratic appointee from the 1960s—who was in every single important case the fifth vote that Rehnquist, Scalia, O'Connor, and Kennedy needed to make up a majority...

...He recounts the regular dinners held by the conservatives, their private e-mail network, and their back-channel negotiations...

...Moreover, 1988-89 was shaping up to be a very significant term for the court, including not only reconsiderations of two important precedents, Roe v. Wade (the landmark case that found a constitutional right to abortion) and Runyon v. McCrary (a case that held that the 1866 Civil Rights Act outlawed private acts of racial discrimination), but also cases involving the death penalty, freedom of speech, separation of powers, religious freedom, and states' rights...

...Circuit Court of Appeals and a leading proponent of a theory of judicial interpretation known as original-ism...

...Today, with the addition of Justice Thomas, a conservative victory can sometimes be assured by the support of O'Connor and Kennedy...

...Indeed, he admits that along with his fellow clerks, he "had spent more than a few off-hours thinking up and funneling to friends on the Senate committee staff questions that would expose the weaknesses and contradictions of Bork's positions...

...Rather than exemplifying a "right-wing conspiracy" on the court, Patterson is a better example of how the liberals failed through their own attempt to overreach...

...Likewise, in two other important civil-rights cases, Wards Cove Packing Co...

...What made Patterson such an important case was that it was one of the first cases addressing civil rights to be considered by the newly confirmed Kennedy (it raised the possibility of overruling Runyon), and his vote in Patterson was expected by court-watchers to give an important indication of where he stood...

...Supreme Court decisions often endure, even after a majority of the court considers them to be outdated or even wrong...

...over by a cabal of right-wing law clerks...

...And as long as one recognizes Lazarus's own predilections and the failures he is trying to justify, Closed Chambers is an enjoyable and informative book...

...Conservatives believed that with Bork on the court, they could turn back many of the excesses of the previous generation of justices...

...Moreover, Brennan's interpretation would have effectively rendered one of Congress's landmark pieces of legislation, Title VII, superfluous—something Congress obviously did not intend...

...But the book is not primarily a behind-the-scenes tell-all, with titillating accounts of the justices in their unguarded moments...

...Ultimately, Lazarus has written a political, rather than a legal, brief...

...At the same time, the demise of Bork's nomination was an especially bitter pill for many of Lazarus's conservative, law-school peers, some of whom were also beginning their careers as appellate-court clerks...

...If such a portrait of what is sometimes called the least political branch of government is understandably disappointing, it is not surprising...

...In Closed Chambers, Lazarus spins a tale of how in the late 1980s the court was taken Jay Lefkowitz is an attorney in Washington, D.C...

...By then, the Powell vacancy had been filled by Anthony Kennedy, a conservative judge from California...

...In the highly charged atmosphere of the Supreme Court— regularly punctuated by high-stakes battles among the law clerks as they lobbied their respective justices either to grant or deny last-minute stays of execution—the clerks often found themselves acting out the legal debate they had witnessed only a year earlier during the Bork hearings...

...In fact, the case during the 1988-89 term that Lazarus views as the clearest example of a right-wing, clerk-driven outcome, Patterson v. McLean Credit Union, actually proves the weakness of his argument...

...In short, it was precisely the kind of overreaching argument that one might expect from the twenty-five-year-old, liberal clerks who worked in Brennan's chambers...

...Another defining political moment for Lazarus and his fellow law clerks was the hearings to confirm Robert Bork's nomination to the Supreme Court in the summer of 1987...

...With the 1987 retirement of Lewis Powell, a moderate justice who was enormously influential because he was often the decisive vote in 5-4 decisions, conservatives finally had an opportunity to reshape the court...

...Of course, this institutional inertia also means that the Supreme Court is often a generation behind the political currents of the day...

...Although Lazarus claims that Kennedy was hijacked in that case by one of his conservative clerks, Lazarus contradicts himself by noting that Kennedy's opinion in Patterson did not end up reflecting that particular clerk's views—which means that the opinion can only have derived from Kennedy's own balanced view...

...Lazarus still feels the pain of these decisions, and he argues that "cabalist" clerks (who worked principally for the conservatives) were able to turn the court by winning the "swing" vote of the newly-appointed Justice Kennedy...

...Moreover, it's not surprising that sometimes clerks have a role in shaping an opinion...

...Lazarus devotes much of Closed Chambers to stories of the pitched battles between liberal and conservative clerks...

...For most of the preceding thirty years, the court had given the liberals nearly all of their most vaunted reforms, particularly in criminal rights, reverse discrimination, and privacy rights...

...But in 1988, the cabal could never win without the support of at least one non-conservative justice...

...Webster v. Reproductive Health Services—which Lazarus himself describes as "the most dominating case of October Term 1988"—was hardly a clean conservative victory...

...The description of the role of Supreme Court clerks is unprecedented and illuminating...

...Brennan's position was particularly untenable because the plain language of the Act was specifically limited to banning discrimination in the "making" and "enforcement" of contracts...

...Lazarus would like to blame the right-wing clerks for the liberal defeats in 1988, but what really happened is that the liberal justices simply tried to push the law too far—not only for the conservative members of the court, but even for centrists like Justice White...

...Bork was a prominent judge on the D.C...

...The irony in Lazarus's Closed Chambers is that the real legacy of the campaign to defeat Robert Bork—a campaign in which Lazarus participated—is exactly the deepened politicization of the Supreme Court that Lazarus has written his book to decry...

...Treason of a Clerk On the Vast, Right-Wing Conspiracy at the Supreme Court By Jay Lefkowitz Like that more famous graduate of Yale Law School, Hillary Clinton, Edward Lazarus believes in a vast right-wing conspiracy, except that his conspiracy lives inside the Supreme Court...