Behind the Crimson Curtain


Whether or not it is the least dangerous branch of the federal government, the Supreme Court is surely the least visible. No television cameras cover its oral arguments; no floor debates or committee reports discuss its densely worded rulings; and the Justices bind themselves and their staffs, including the young law graduates who work as their clerks, to strong obligations of confidentiality about its inner processes. Biographies of Justices rarely appear until after they step down from the bench, and they then tend toward the hagiographic. And the personal papers of the Justices that might shed some light on their work typically remain embargoed for a generation after their deaths.

Thus it is no surprise that the release last April of Closed Chambers—Edward Lazarus’s clerk’s-eye account of some of the Court’s recent internal deliberations—caused a flurry of excitement in the press and rumors of outrage in the judicial branch. Offering even in his subtitle a whiff of scandal and the prurient thrill of insiderdom, Lazarus describes in-chambers debates and inter-chambers machinations over cases argued and decided during his 1988-1989 clerkship for now-retired Justice Harry A. Blackmun. His book is the first since The Brethren: Inside the Supreme Court, the 1979 account that Bob Woodward and Scott Armstrong based on anonymous interviews with law clerks, to attempt to give an inside view of the Court.

Many commentators called the book the ultimate treason of a clerk. A Wall Street Journal column even suggested that Lazarus might have committed crimes of converting government records to unauthorized private use.1 Defending himself, Lazarus contends that he revealed no secrets learned during his employment. Rather he relied, he says, upon contemporary interviews with some of his former co-clerks and most of all upon revelations from the private papers of the late Justice Thurgood Marshall, who departed from tradition by authorizing the Library of Congress to make those papers publicly available directly upon his death.

The fuss over Lazarus’s betrayal of trust appears overblown. If it were not for Lazarus’s self-importance—he recently wrote, for example, that it is an act not of disloyalty but of “devotion to hold the justices accountable to the highest ideals of the institution they serve”2—he would have a fair point that the chief institution of one of the three branches of government should not be utterly shrouded in priestly secrecy. But in the end his “inside” stories, although engagingly told, reveal little that careful readers of the Marshall papers or earlier studies of the Justices could not already have known—for example, that Reagan appointee Anthony Kennedy, who took the place of the defeated nominee Robert Bork, crucially switched sides between the conference and the decision in voting with the 5-4 majority to reject broad racial remedies, uphold abortion rights, and invalidate school prayer; and that the late Lewis F. Powell, Jr., a Nixon appointee who had provided the pivotal fifth vote against extending the right of privacy to gay sex, claimed at the time, ingenuously but incorrectly, that…

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