Ex-Supreme Court Clerk's Book Breaks the Silence
By Joan Biskupic
A new tell-all book by a former Supreme Court clerk portrays the nation's high court justices as strongly influenced by politics and manipulated by ideological law clerks who not only play a dominant role in drafting opinions but sway how the justices vote on individual cases.
The book focuses particularly on the activities of conservative clerks, who, according to author Edward P. Lazarus, worked in the late 1980s to steer justices to right-wing results, created a separate e-mail system to communicate with each other and became so interested in denying death row appeals that when Florida mass murderer Ted Bundy was executed, they "celebrated with a champagne party."
Although legal scholars regularly write biographies of individual justices or tomes on judicial philosophy, rarely are books published that expose readers to the Supreme Court's inner workings.
In addition, this is the first time that a former law clerk has provided a lens on the court by breaking with the tradition of remaining publicly silent on matters pertaining to the court's inner sanctum.
As a result, the book, due out in April and entitled "Closed Chambers," already is generating controversy at the court and in legal circles where copies of galley proofs are beginning to circulate.
Initial reports were that some of the justices were surprised about the impending publication of the 500-page book by Time Books. Five justices who were on the court during the period covered in the book remain today.
Lazarus, now a federal prosecutor in Los Angeles, was a law clerk to Justice Harry A. Blackmun in the 1988-89 term. Blackmun retired in 1994 but still goes daily to his office at the court and some people close to him said he was unaware until yesterday that his former clerk was publishing a book.
Interviewed yesterday, Lazarus dismissed any suggestion that he has violated confidences. "This idea of absolute silence is really a myth. Clerks have spoken to journalists they have just done so anonymously. I felt I had something important to say." He said in the book he was "careful to avoid disclosing information I am privy to solely because I was privileged to work for Justice Blackmun."
Lazarus writes in a copy of "Closed Chambers" obtained by The Washington Post that the justices "resort to transparently deceitful and hypocritical arguments and factual distortions as they discard judicial philosophy . . . in favor of bottom-line results."
Describing himself in liberal terms, Lazarus casts Chief Justice William H. Rehnquist as an ineffectual leader and Justice Anthony M. Kennedy, a key swing vote on the court, as putty in the hands of his clerks and mainly interested in being popular. Lazarus writes that Kennedy was considered a "priss in the eyes of some of his colleagues."
It has long been known, mostly through the papers of the late Thurgood Marshall, that Kennedy switched his vote in a key job discrimination case in 1989 during deliberations among the justices. As a result, Justice William J. Brennan lost his majority and Kennedy, who had been on the court only a few months, ended up writing the opinion that narrowly interpreted an old civil rights law against discrimination in contracting.
In his book, Lazarus alleges that a clerk who had formerly worked for the conservative Justice Antonin Scalia and had joined Kennedy's chambers mid-term "spoon-fed Kennedy" an interpretation of the law. Wrote Lazarus: "Even before [the clerk] had joined Kennedy's chambers, he had told Scalia . . . that the new justice . . . could be worked on and brought around. [The civil rights ruling] became his living proof."
Lazarus also writes that it was "received wisdom among the clerks" that Justice Sandra Day O'Connor distrusted the persuasive but liberal Brennan "for having hoodwinked her in some unnamed past case." As a result, Lazarus claims, she refused to sign on to any of his majority opinions. Brennan retired in 1990 and died last year.
Explaining some of the maneuvering that led up to the court's 1989 ruling upholding Missouri restrictions on abortion, Lazarus quotes from an internal memo from Kennedy asserting that he thought the case presented an opportunity to reconsider Roe v. Wade. In Kennedy's words, he "would have used the occasion to overrule that case and return this difficult issue to the political systems of the states."
Three years later, Kennedy would join with O'Connor and Justice David H. Souter to guarantee the central holding of Roe. "Fearing the pressure that would surely follow the revelation of his defection," Lazarus writes, "Kennedy went so far as to instruct [the designated clerk] to conceal their Casey work even from his own co-clerks. According to one reliable source, [the clerk] encrypted his computer to avoid the possibility of spying by more conservative colleagues in the Chambers." That story could not be confirmed yesterday by others who might have had knowledge of the events.
Lazarus names names. He writes, for example, that Andrew McBride, a clerk to O'Connor, was so intent on revenge for the Senate rejection of Robert H. Bork that he e-mailed his fellow conservative clerks early in the term: "Every time I draw blood I'll think of what they did to Robert H. Bork."
Contacted yesterday, McBride, now a federal prosecutor in Richmond, said, "I don't have any comment on any of this." McBride, described as a leader of the conservative "cabal," said he did not know of any champagne celebration of an execution.
Other former clerks who were contacted vouch for some of the anecdotes presented by Lazarus, particularly of battles between the liberal and conservative clerks. But some former clerks said his view overstates clerk power. Indeed, the justices tend to rule in consistent patterns over the years, even though clerks move on annually.
Laurie Miller, a clerk to Justice Byron R. White during the same term as Lazarus, said the justices control the results. "It would be unfounded bravado on my part to suggest ever that anyone in our chambers was anything other than a clerk to Justice White," she said.
© Copyright 1998 The Washington Post Company