Courting Controversy

By ADAM COHEN

When Missouri put George ("Tiny") Mercer to death in January 1989, a law clerk to Chief Justice William Rehnquist told his Supreme Court colleagues it was time to allow more executions. "In case anyone hadn't noticed, we had a successful execution last night," Robert Giuffra exhorted. "We need to get our numbers up after only 11 in 1988 and five since July." Giuffra was one of an influential "cabal" of conservative law clerks who used their proximity to the Justices to work against abortion rights and affirmative action and to try to cut back on the court's review of death-row appeals.

These are among the claims of Closed Chambers (Times Books; $27.50), the first insider's account of the workings of the Supreme Court. Written by Edward Lazarus, who was a clerk for former Justice Harry Blackmun, it features frank, behind-the-scenes assessments of the Justices and quotes from E-mail sent over the court's computers. The book discusses legal history and doctrines, but it is the tales out of school that will no doubt attract the most attention. Lazarus repeats accounts that Thurgood Marshall, the court's legendary first black Justice, watched soap operas during the workday, and says he let his law clerks do almost everything but cast his vote. Lazarus says it was "received wisdom" among the clerks that Justice Sandra Day O'Connor was so peeved at Justice William Brennan for having "hoodwinked" her in a case that she refused to join any of his later majority opinions. And he says Justice John Paul Stevens spent so much of the winter in his Florida condo that he "became the FedEx Justice."

Lazarus' description of the role of a cabal of conservative law clerks in swaying the court ideologically should sound alarms. In 1988-89, the period of Lazarus' clerkship, liberal Justices who had for decades won the major ideological battles suddenly began losing. One case that year about on-the-job racial harassment so dramatically set back civil rights law that Congress passed a new statute that reversed the ruling. Not infrequently, Lazarus contends, it was the clerks--highly credentialed recent law-school graduates hired by individual Justices to help research cases and draft opinions--who helped manipulate the results. The conservatives prevailed in the racial-harassment case, he says, in part because a brilliant conservative clerk "spoon-fed" a new and impressionable Justice Anthony Kennedy an argument that pried him away from the liberal position. Critics of the book question Lazarus' accounts. They say he paints conservative conspiracies where none existed. Lazarus says a weekly dinner at a Chinese restaurant was a meeting of the "full cabal," but conservatives say some liberal clerks attended and nothing sinister occurred. And they maintain that he overstates the degree to which experienced jurists really let recent law-school graduates call the shots.

But the biggest objection being raised is that Lazarus has fallen prey to the modern affliction of betraying confidences for personal gain. "It seems to me the most fundamental breach of confidentiality you can think of," says Columbia School of Journalism dean Tom Goldstein. Gerard Lynch, a Columbia University law professor and onetime Brennan clerk, says a former clerk selling a book about what he saw at the court is a violation of "personal loyalty," which he equates with Linda Tripp's taping of her friend Monica Lewinsky. An official Supreme Court Code of Conduct says a "law clerk owes the Justice and the court complete confidentiality," but Lazarus argues it applies only when a clerk is actually employed by the Justice.

Lazarus, now a federal prosecutor in Los Angeles, says he double-sourced information he learned from his clerkship through interviews and documents. With the court regularly deciding life-and-death matters, he says, "the notion this should be a secret from the American people is untenable." U.S.C. law professor Erwin Chemerinsky, a Lazarus friend, agrees. He says the back-room politics that affects case outcomes is "exactly what should be exposed to the public." But the Supreme Court--whose publicity-averse Justices still don't let cameras in their courtroom--will likely regard this exposure of its internal workings with horror. It's one opinion that even on this sharply divided court should produce no dissents.