Edward Lazarus, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (Times Books, 1998)
Reissued in paperback by Penguin in June 1999
More than 200 hundred years ago, the framers of the United States Constitution exacted a body of law that counted every African-American as three-fifths of a person and excluded women altogether from the general protection of that law. To protect the integrity of the doctrine the nation was built upon, the Supreme Court was charged with the awesome responsibility to interpret the now archaic document and apply it to modern standards. But as Edward Lazarus explains in Closed Chambers, running a foggy set of rules through fallible people will not create an indefatigable body of law. In fact, the former Supreme Court law clerk believes that given the subjective nature of each of the justices, the interpretation of the law may swing completely away from what the founders had intended if a justice with a deciding vote is simply having a bad day.
Lazarus doesn't put it as simply as that in the 500+ page opus that details the major decisions of the nation's greatest court from the 1930s to the 1990s, but the sentiment is the same. "Unprecedented in its revelations and unparalleled in the brilliance of its analysis, Closed Chambers is the most important book on the Supreme Court in a generation," said Alex Kozinski in the January 1999 Yale Law Journal. Although Lazarus wasn't a clerk for the entire period covered by the book, he maintained several contacts within the judge's offices and tells the details of the greatest civil rights, capital punishment and abortion cases from the perspective of the consummate insider. Looking back over this period of historic legal precedents, Lazarus shares not only the blow-by-blow of such cases as Roe v. Wade, the Baston Case, and the Scotsboro rape trial, but also shares the individual personality quirks of the justices who rotated through the bench. He delivers each piece of new information with the fervor of an idealistic first-year law student, but with the wisdom and edge of someone who's been in the game too long.
"Closed Chambers gives us excellent and accessible accounts of important but not well-known rulings involving the death penalty and habeas corpus jurisdiction," wrote David Garrow in an April 19, 1998 review for the New York Times. "But 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. And indeed, though Lazarus asserts that his book is 'both an indictment' of how the Court has behaved over the past decade and 'a hopeful plea' for change, his tone is almost exclusively denunciatory."
The importance of this book for a journalist really comes in two forms. The obvious one is in the sheer volume of legal information that courses through the veins of this book. Lazarus sets up the monumental cases - like Roe v. Wade - through their immediate predecessors. The case that legalized abortion rested on the shoulders of Poe v. Ullman, which essentially created a legally recognized right to privacy by challenging an 1879 Connecticut statute that made contraceptives illegal. Justice Douglas wrote in his opinion that privacy, especially to consensual sex in marriage while in a private home, was implicit in several amendments even if it wasn't directly stated in the Constitution.
The main value of this book stems not from the painstaking details of case law, but from the small observations that spring up within the chapters. Lazarus demonstrably has a respect for the men and women who toil over the cases that extends far beyond employer-employee relations. It is obvious in the way he describes the justice's chairs and who walks with whom down the long hallway after a decision. But he is not immune to calling out the justices for their faults - as in 1972, when the court narrowly decided to issue a moratorium on capital punishment, eeking out a 5-4 vote with each justice writing an opinion for the first time in court history. "For five justices to issue one of the most far-reaching constitutional rulings in the Court's history, without even agreeing among themselves on a legal rationale betrayed the very rule of law they claimed to be upholding ... [they] abandoned the Court's institutional responsibility to justify and give coherence to a dramatic shift in the law." He acknowledges his own bias as a clerk in "a critical mass of ideological conservatives," but uses that admission to criticize justices for voting along party lines. Toward the end of the novel, Lazarus breaks down the highest court of the land into a political machine, relying as much if not more on conservative versus liberal ideologies than on preserving the integrity of the law.
Although he was applauded by most reviewers for his "concise and colorful" prose and bringing case law "alive with details," Lazarus was blasted by law professionals for reporting several historical inaccuracies within his details of these court cases and for breaking a code of confidentiality that law clerks are expected to maintain. "To the extent Lazarus disclosed confidential communications that took place during his clerkship, he breached not only the trust of the Justices, but a longstanding expectation of confidentiality that is now embodied in a written Code of Conduct for Supreme Court Clerks," Richard Painter wrote in the 1999 Michigan Law Review. Tony Mauro, writing for Legal Times in November 1998, echoed Painter's sentiment by writing, "Anger toward the author of Closed Chambers still burns brightly in the heart of federal appeals Judge Alex Kozinski. 'I have nothing but contempt for him, ' says Kozinski of Lazarus, adding that because of the book, Lazarus is not welcome to appear before him."
The NewsHour Interview
Review of Closed Chambers on goodreports