The Importance of Being Important

Iowa Law Review

Volumn 84, Issue 1, 1998, Pages

  Raymond, Margaret ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 0542394684     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (126)

1. EDWARD LAZARUS, CLOSED CHAMBERS (1998).
2. I use that term advisedly. To him, it is indeed a drama, a costume drama in fact, in which the Justices are cast in the role of "princes and princesses surrounded by scheming courtiers." Id. at 26. This dramatic vision generates what might be viewed as a tendency towards somewhat hyperbolic overstatement. For example, he asserts that in the Yonkers housing desegregation case, Spallone v. United States, 493 U.S. 265 (1990), Justice Brennan, instead of closing his dissent "with the customary 'I respectfully dissent,' . . . pointedly omitted the 'respectfully.' It no longer fit his feelings. It no longer fit the Court." Id. at 46. While this flourish ends a chapter on a dramatic note, the significance of this claimed omission pales a bit in the light of the numerous cases in which Justice Brennan had previously dissented without the "customary" assertion of respect. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 405 (1989) (Brennan, J., dissenting); Torres v. Oakland Scavenger Co., 487 U.S. 312, 325 (1988) (Brennan, J., dissenting); California v. Greenwood, 486 U.S. 35, 56 (1988) (Brennan, J., dissenting); Taylor v. Illinois, 484 U.S. 400, 438 (1988) (Brennan, J., dissenting); Greer v. Miller, 483 U.S. 756, 775 (1987) (Brennan, J., dissenting); Bowen v. Gilliard, 483 U.S. 587, 634 (1987) (Brennan, J., dissenting); Welch v. Department of Highways, 483 U.S. 468, 521 (1987) (Brennan, J., dissenting); In re Doe, 481 U.S. 102, 128 (1987) (Brennan, J., dissenting); Maryland v. Macon, 472 U.S. 463, 477 (1985) (Brennan, J., dissenting); Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 283 (1985) (Brennan, J., dissenting); United States v. Johns, 469 U.S. 478, 489 (1985) (Brennan, J., dissenting); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 831 (1984) (Brennan, J., dissenting); INS v. Delgado, 466 U.S. 210, 242 (1984) (Brennan, J., dissenting); Lynch v. Donnelly, 465 U.S. 668, 726 (1984) (Brennan, J., dissenting); Brown v. Thomson, 462 U.S. 835, 861 (1983) (Brennan, J., dissenting); United States v. Valenzuela-Bernal, 458 U.S. 858, 885 (1982) (Brennan, J., dissenting); U.S. Indus./Federal Sheet Metal, Inc., v. United States Dep't of Labor, 455 U.S. 608, 623 (1982) (Brennan, J., dissenting); NLRB v. Retail Store Employees Union Local 1101, 447 U.S. 607, 624 (1980) (Brennan, J., dissenting); Board of Regents of the State University of New York v. Tomanio, 446 U.S. 478, 499 (1980) (Brennan, J., dissenting). Similarly, Lazarus imbues the arrival of the mail with dramatic significance, describing the arrival of memoranda from Justice Scalia, known as "Ninograms," as "[h]and-delivered, usually without warning, in innocuous manila envelopes." Id. at 42. Such hand-deliveries were, as far as I recall, routine at the Court and the character of the envelopes had no particular import.
3. The book joins a limited literature of clerkship tales, including J. HARVIE WILKINSON, SERVING JUSTICE: A SUPREME COURT CLERK'S VIEW (1974),
4. and parts of WILLIAM H. REHNQUIST, THE SUPREME COURT (1987) [hereinafter REHNQUIST, SUPREME COURT]. Other, shorter writings about particular aspects of the clerkship experience include Clifford Sloan, Death Row Clerk in the Court of Last Resort: U.S. Supreme Court and Capital Cases, NEW REPUBLIC, Sept. 16, 1987, at 18; William H. Rehnquist, Who Writes Decisions of the Supreme Court, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74-75 [hereinafter Rehnquist, Decisions].
5. and parts of WILLIAM H. REHNQUIST, THE SUPREME COURT (1987) [hereinafter REHNQUIST, SUPREME COURT]. Other, shorter writings about particular aspects of the clerkship experience include Clifford Sloan, Death Row Clerk in the Court of Last Resort: U.S. Supreme Court and Capital Cases, NEW REPUBLIC, Sept. 16, 1987, at 18; William H. Rehnquist, Who Writes Decisions of the Supreme Court, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74-75 [hereinafter Rehnquist, Decisions].
6. and parts of WILLIAM H. REHNQUIST, THE SUPREME COURT (1987) [hereinafter REHNQUIST, SUPREME COURT]. Other, shorter writings about particular aspects of the clerkship experience include Clifford Sloan, Death Row Clerk in the Court of Last Resort: U.S. Supreme Court and Capital Cases, NEW REPUBLIC, Sept. 16, 1987, at 18; William H. Rehnquist, Who Writes Decisions of the Supreme Court, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74-75 [hereinafter Rehnquist, Decisions].
7. LAZARUS, supra note 1, at 5.
8. Id. at 281.
9. See id. at 262 ("It is fair to say, I believe, that during October Term 1988 the court handed down more landmark decisions in more fields of law than in any other year in its history and that the term must rank with the New Deal watershed of 1937 and the year of Brown, 1954, as the most decisive in this century."). Some might include October Term 1972 (when Roe v. Wade was decided) or October Term 1974 (when United States v. Nixon was decided), to name a few, as candidates at least as worthy as October Term 1988. Professor Kathleen M. Sullivan has characterized Lazarus's claim as "nonsense," arguing that Congress "swiftly overturned the three major cases of the 1988-1989 term that had construed racial remedies narrowly" and that the trends otherwise noted by Lazarus "had been set in motion long before." Kathleen M. Sullivan, Behind the Crimson Curtain, NEW YORK REV., Oct. 8, 1998, at 18.
10. See id. at 123 (noting that, because Justices Blackmun, Stevens, O'Connor and Kennedy did not have fixed policies as to how death penalty cases would be handled, the "choices and judgments [of clerks in those chambers] were even more complicated and consequential than our colleagues").
11. Lazarus has been accused of violating Canons 2 and 3 of the Code of Conduct for Supreme Court Law Clerks. See Richard W. Painter, A Law Clerk Betrays the Supreme Court, WALL ST. J., Apr. 13, 1998, at A23. The Code was distributed starting in 1987 to law clerks at the Court. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 146 (4th ed. 1996). In the press, Lazarus has argued that he breached no confidence because the Code applied to him only during his service at the Court. See Edward Lazarus, Justices Should Blink in the Sunlight, WALL ST. J., Apr. 23, 1998, at A19; Edward Lazarus, The Supreme Court Must Bear Scrutiny, WASH. POST, July 6, 1998, at A19. He also contends in the book that he did not, in writing it, use any information he learned solely as a law clerk. He admits, however, that his "experience as a law clerk . . . was indispensable," noting that it gave him "unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask." LAZARUS, supra note 1, at xi. To the extent Lazarus believes himself bound by a duty of confidentiality, he takes an unduly narrow view of that obligation. In other contexts, a prohibition on "use" of information ordinarily prohibits not only the express repetition of that information but also the use of that information to formulate appropriate lines of further inquiry. See, e.g., Kastigar v. United States, 406 U.S. 441, 460 (1972) (stating that total prohibition on use of testimony procured under a grant of use immunity bars "the use of compelled testimony as an 'investigatory lead'"); MODEL RULES OF PROFESSIONAL CONDUCT 1.9(c)(1) (1998) (prohibiting use of confidential information to the disadvantage of a former client in the context of attorney ethics). Beyond noting this, however, I will not dwell on whether Lazarus has breached any written or unwritten rules of clerk silence. No such codified obligation applied to law clerks at the time I clerked at the Court in 1986-87; whether clerks believed other obligations bound them to silence is a different matter.
12. Lazarus has been accused of violating Canons 2 and 3 of the Code of Conduct for Supreme Court Law Clerks. See Richard W. Painter, A Law Clerk Betrays the Supreme Court, WALL ST. J., Apr. 13, 1998, at A23. The Code was distributed starting in 1987 to law clerks at the Court. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 146 (4th ed. 1996). In the press, Lazarus has argued that he breached no confidence because the Code applied to him only during his service at the Court. See Edward Lazarus, Justices Should Blink in the Sunlight, WALL ST. J., Apr. 23, 1998, at A19; Edward Lazarus, The Supreme Court Must Bear Scrutiny, WASH. POST, July 6, 1998, at A19. He also contends in the book that he did not, in writing it, use any information he learned solely as a law clerk. He admits, however, that his "experience as a law clerk . . . was indispensable," noting that it gave him "unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask." LAZARUS, supra note 1, at xi. To the extent Lazarus believes himself bound by a duty of confidentiality, he takes an unduly narrow view of that obligation. In other contexts, a prohibition on "use" of information ordinarily prohibits not only the express repetition of that information but also the use of that information to formulate appropriate lines of further inquiry. See, e.g., Kastigar v. United States, 406 U.S. 441, 460 (1972) (stating that total prohibition on use of testimony procured under a grant of use immunity bars "the use of compelled testimony as an 'investigatory lead'"); MODEL RULES OF PROFESSIONAL CONDUCT 1.9(c)(1) (1998) (prohibiting use of confidential information to the disadvantage of a former client in the context of attorney ethics). Beyond noting this, however, I will not dwell on whether Lazarus has breached any written or unwritten rules of clerk silence. No such codified obligation applied to law clerks at the time I clerked at the Court in 1986-87; whether clerks believed other obligations bound them to silence is a different matter.
13. Lazarus has been accused of violating Canons 2 and 3 of the Code of Conduct for Supreme Court Law Clerks. See Richard W. Painter, A Law Clerk Betrays the Supreme Court, WALL ST. J., Apr. 13, 1998, at A23. The Code was distributed starting in 1987 to law clerks at the Court. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 146 (4th ed. 1996). In the press, Lazarus has argued that he breached no confidence because the Code applied to him only during his service at the Court. See Edward Lazarus, Justices Should Blink in the Sunlight, WALL ST. J., Apr. 23, 1998, at A19; Edward Lazarus, The Supreme Court Must Bear Scrutiny, WASH. POST, July 6, 1998, at A19. He also contends in the book that he did not, in writing it, use any information he learned solely as a law clerk. He admits, however, that his "experience as a law clerk . . . was indispensable," noting that it gave him "unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask." LAZARUS, supra note 1, at xi. To the extent Lazarus believes himself bound by a duty of confidentiality, he takes an unduly narrow view of that obligation. In other contexts, a prohibition on "use" of information ordinarily prohibits not only the express repetition of that information but also the use of that information to formulate appropriate lines of further inquiry. See, e.g., Kastigar v. United States, 406 U.S. 441, 460 (1972) (stating that total prohibition on use of testimony procured under a grant of use immunity bars "the use of compelled testimony as an 'investigatory lead'"); MODEL RULES OF PROFESSIONAL CONDUCT 1.9(c)(1) (1998) (prohibiting use of confidential information to the disadvantage of a former client in the context of attorney ethics). Beyond noting this, however, I will not dwell on whether Lazarus has breached any written or unwritten rules of clerk silence. No such codified obligation applied to law clerks at the time I clerked at the Court in 1986-87; whether clerks believed other obligations bound them to silence is a different matter.
14. Lazarus has been accused of violating Canons 2 and 3 of the Code of Conduct for Supreme Court Law Clerks. See Richard W. Painter, A Law Clerk Betrays the Supreme Court, WALL ST. J., Apr. 13, 1998, at A23. The Code was distributed starting in 1987 to law clerks at the Court. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 146 (4th ed. 1996). In the press, Lazarus has argued that he breached no confidence because the Code applied to him only during his service at the Court. See Edward Lazarus, Justices Should Blink in the Sunlight, WALL ST. J., Apr. 23, 1998, at A19; Edward Lazarus, The Supreme Court Must Bear Scrutiny, WASH. POST, July 6, 1998, at A19. He also contends in the book that he did not, in writing it, use any information he learned solely as a law clerk. He admits, however, that his "experience as a law clerk . . . was indispensable," noting that it gave him "unusual access to sources knowledgeable about the Court and armed me with questions others might not think to ask." LAZARUS, supra note 1, at xi. To the extent Lazarus believes himself bound by a duty of confidentiality, he takes an unduly narrow view of that obligation. In other contexts, a prohibition on "use" of information ordinarily prohibits not only the express repetition of that information but also the use of that information to formulate appropriate lines of further inquiry. See, e.g., Kastigar v. United States, 406 U.S. 441, 460 (1972) (stating that total prohibition on use of testimony procured under a grant of use immunity bars "the use of compelled testimony as an 'investigatory lead'"); MODEL RULES OF PROFESSIONAL CONDUCT 1.9(c)(1) (1998) (prohibiting use of confidential information to the disadvantage of a former client in the context of attorney ethics). Beyond noting this, however, I will not dwell on whether Lazarus has breached any written or unwritten rules of clerk silence. No such codified obligation applied to law clerks at the time I clerked at the Court in 1986-87; whether clerks believed other obligations bound them to silence is a different matter.
15. Law clerks were obviously sources for BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 3 (1979) (noting in their introduction that they interviewed "more than 170 former law clerks and several dozen former employees of the Court"). More recently, Professor Bernard Schwartz noted that law clerks as well as Justices were sources for his book, Decision: How the Supreme Court Decides Cases at vii (1996).
16. Law clerks were obviously sources for BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 3 (1979) (noting in their introduction that they interviewed "more than 170 former law clerks and several dozen former employees of the Court"). More recently, Professor Bernard Schwartz noted that law clerks as well as Justices were sources for his book, Decision: How the Supreme Court Decides Cases at vii (1996).
17. The press has reported the tightening of the Court's confidentiality rules in light of Lazarus's book. See Tony Mauro, Supreme Court Tightens Secrecy Rules for Clerks, U.S.A. TODAY, Nov. 9, 1998, at 1A.
18. He also captures effectively the stressful, frenetic, and profoundly sad experience of death penalty work. See LAZARUS, supra note 1, at 120. For more on this subject, see Sloan, supra note 3.
19. LAZARUS, supra note 1, at 293.
20. That may be the fault, not of the author, but of the doctrine. For example, see the attempt to explain Beck v. Alabama, 447 U.S. 625 (1980). LAZARUS, supra note 1, at 54-55, 65.
21. Id. at 324 ("The process of deliberation was increasingly a matter of choir preaching and political strategizing within each caucus, and hardly at all a common quest for the most appropriate and just interpretation of law.").
22. Id. at 424.
23. "In his assessment, the Justices' views were determined beforehand, and a lot of talk wasn't going to change anyone's mind." Id. at 285. Justice Scalia, Lazarus notes, once stated that the conference wasn't really a "conference," but a statement of views. Id.
24. Id. at 286. At the discussion of Casey, he notes, "one well-informed clerk doubted that any Justice 'said more than two sentences,'" id. at 466-67, suggesting that what the Justices were thinking in deciding "one of the most important cases in a generation . . . was left mostly unstated." Id. at 467.
25. LAZARUS, supra note 1, at 286.
26. Id. at 249.
27. See, e.g., id. at 129: I would have thought that the death penalty stays would have spawned an almost constant discussion among the Justices about how best to supervise the machinery of death. But by the time I came to the Court, the Justices engaged in no death penalty debate, no exchange or modification of views. On the long nights when someone's life hung in the balance, or in the days that followed, the Justices essentially never conferred with one another . . . . Everyone's views seemed to be frozen, locked in a position long since determined.
28. Id. at 9 ("The method of their decision making is the irreplaceable source of the Justices' legitimacy. Thus, when they disregard the traditions of law, invoke intellectually dishonest arguments, engage in glaring inconsistencies, and reduce their deliberations to the shallow calculus of five votes beats four, they call their own reason for being into question.").
29. Id. at 517.
30. LAZARUS, supra note 1, at 517.
31. Id. at 249.
32. Id.
33. His argument, that the "unyielding factions" on the Court "have largely given up on a meaningful exchange of their respective views," for example, suggests faith in the proposition that the Justices once engaged in such an exchange. Id. at 6.
34. Id. at 7 ("[T]he severity of these divisions has corroded the Court's institutional culture.").
35. LAZARUS, supra note 1, at 13.
36. Id. at 72.
37. Id. at 149. The "acid stream of abolitionist dissents" in death penalty cases from Justices Brennan and Marshall "continually ate away" at this tissue. Id.
38. Id. at 159.
39. Four votes are needed for a grant of certiorari, and only three to "hold" a case. See Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. PA. L. REV. 1067 (1988).
40. LAZARUS, supra note 1, at 159.
41. See Revesz & Karlan, supra note 32, at 1085-88. The authors argue that individual Justice's approaches to this issue have been inconsistent. Id. at 1094-95; see also id. at 1132 ("[T]he Justices have shifted their interpretations [of the nonmajority rules] to favor the substantive result that they wished to achieve in particular cases, and they have made no effort to harmonize such elements with the remainder of the legal landscape.").
42. See, e.g., O'BRIEN, supra note 8, at 232 (commenting on lack of give-and-take in Conference and noting that newly appointed Justices sometimes hoped for a freer discussion, but noting Justice Scalia's view that more discussion "would probably not contribute much or lead justices to change their minds when voting on cases"); REHNQUIST, SUPREME COURT, supra note 3, at 290-91 (noting that he was "surprised and disappointed at how little interplay there was between the various justices" when he first joined the Court, though noting that the different system he favored - a "round-table discussion of the matter after each of us had expressed our views," . . . "while fine in the abstract . . . probably would not contribute much in practice"); SCHWARTZ, supra note 9, at 7 (noting that Justices on Burger and Rehnquist Courts "have tended to exchange their views in writing" and that "[t]here has been much less of the kind of personal give-and-take that played a crucial role in the Warren Court's decision process").
43. See SCHWARTZ, supra note 9, at 7.
44. See O'BRIEN, supra note 8, at 232.
45. See REHNQUIST, SUPREME COURT, supra note 3, at 291.
46. Professor Schwartz discusses the perception of Chief Justice Hughes as an effective Chief who controlled the conference tightly, not allowing it to become, in Justice Frankfurter's words, a "debating society," by inhibiting "irrelevancy, repetition, and fruitless discussion." SCHWARTZ, supra note 9, at 85. He notes that Harlan Fiske Stone, while an Associate Justice, believed that there should be "fuller and freer discussion," id., but that as Chief Justice Stone was "slow to cut off debate in his anxiety to have all issues thoroughly explored," and wound up arguing with the Associate Justices in a freewheeling discussion "that left the Justices irritated and exhausted, their differences inflamed from excessive argument." Id. at 86. Schwartz goes on to discuss Chief Justice Warren's style, already discussed at length in his biography of the Chief Justice. BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT (1983).
47. LAZARUS, supra note 1, at 289 (stating that Justices resorted to "blatant intellectual dishonesty").
48. Id. at 424.
49. See id. at 139-40 ("We knew the Supreme Court was one institution that worked the way it was supposed to work, where people got a fair shake, where equal justice under law was more than a slogan. And here the whole thing was falling down and we were shattered.") (quoting Philip Elman).
50. 347 U.S. 483 (1954).
51. One factor Lazarus does not mention in bemoaning the plethora of individual opinions is the explosion of computer technology at the Court. See SCHWARTZ, supra note 9, at 42 ("The culprit in this lack of collegiality . . . is the computer.") (quoting a speech by Stuart M. Gerson).
52. LAZARUS, supra note 1, at 435.
53. "It would be undoubtedly naive and even wrong to suggest that Justices must always act with absolute and complete candor." Id. at 322. The author goes on to recognize the need to compromise out of respect for precedent or to speak with a single voice.
54. Id. at 516. Lazarus bemoans Furman v. Georgia , 408 U.S. 238 (1972) (per curiam), because "[f]or 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" as well as the Court's own institutional history. In his view, the importance of the Court's speaking with one voice necessitated moving to a middle ground. Id. at 109-10 ("Not one of the Justices in the majority thought to reconsider his vote rather than march forward in total disarray.").
55. Id. at 484. Lazarus here refers to the approach taken by Justices O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
56. LAZARUS, supra note 1, at 485.
57. Thus, Lazarus deems worthy of comment the fact that Rehnquist sent a memo "lobbying openly for unanimity" amongst White, O'Connor, Scalia, and Kennedy in Webster. Id. at 402.
58. See Sullivan, supra note 6, at 16 ("[A] judgment that strives to avoid the perception that the Court is reflexively committed to a particular ideology, or that its members are contractually bound to their appointers, may itself reflect a principle of fidelity to the Court's legitimacy. Whether it succeeds in convincing the public is another matter, but it is wrong to call it 'unprincipled.'").
59. LAZARUS, supra note 1, at 420-21.
60. See, e.g., id. at 421 (complaining that Court opinions sound more like "political speeches and less like legal argument").
61. For reference to "rancorous opinions," see id. at 421.
62. The Justices "yield great and excessive power to immature, ideologically driven clerks, who in turn use that power to manipulate their bosses and the institution they ostensibly serve." Id. at 6.
63. Id. at 271.
64. "[T]he prevalence of editorial justices means that most of the text of most court opinions - the key words and phrases that make up the crux of a ruling - has been chosen and crafted by clerks . . . . [I]t is here, in wielding the enormous power of the first draft and, specifically, in the selection of words, structure, and materials, that clerks may exercise their greatest influence." LAZARUS, supra note 1, at 273.
65. Lazarus waffles considerably in offering these conclusions. While troubled by the power wielded by a clerk preparing the "pool memo" for the Court's review, Lazarus doubts that "the Court granted any cert. petition because of something clerks did." Id. at 268. Mostly, it led to fights among the clerks; "[t]he insidious seeking of advantage in the cert. work was a source of continuing and escalating mutual recriminations." Id. at 268. Similarly, while he complains about "clerk influence" in written opinions, he concedes that "no Justice would ever circulate or publish an opinion that he or she has not approved." Id. at 271.
66. See Rehnquist, Decisions, supra note 3.
67. See, e.g., SCHWARTZ, supra note 9, at 48-55, 257-62 ("The greatest deficiency in the Supreme Court's decision process has been the increasing delegation - if not abdication - of key elements of the deciding function to the law clerk corps within the Court."). Id. at 257; see also O'BRIEN, supra note 8, at 161-66 (noting the transience of clerks is all that detracts from their power); SCHWARTZ, supra note 9, at 261 ("The development of the law clerk corps as a crucial factor in the Court's decision process has had a baneful effect that may ultimately result in the loss of public confidence in the Supreme Court itself.").
68. I leave aside the significant minority of clerks who return as Justices, and the few who have served as clerks to more than one Justice, an arrangement that occasionally arises, most often when a Justice is newly appointed.
69. Lazarus describes his group of clerks as "[a]lmost to a person . . . in our late twenties . . . . For most, our postgraduate life experience consisted of one year followed by another of higher education punctuated by a narrow range of summer jobs and perhaps a year or two 'off' somewhere along the way." LAZARUS, supra note 1, at 266-67.
70. In this, he would not be alone. See, e.g., SCHWARTZ, supra note 9, at 54.
71. LAZARUS, supra note 1, at 39-40.
72. Id at 39.
73. From a perfectionist, I might have expected perfection; the volume, however, is riddled with errors, particularly the footnotes, which are painfully sloppy. See, e.g., id. at 520 n.5; id. at 525 n.22; id. at 546 n.20; id. at 547 n.4. Other writers cite more serious substantive flaws with the fact-checking in the text. See Jeff Bleich et al., Closed Chambers: Has the Integrity of the Supreme Court Been Breached, OREGON STATE B. BULL., July 1998, at 15, 19-20.
74. LAZARUS, supra note 1, at 34 ("These are the moments, as a clerk, when you want to jump up, rush to the podium, knock the incompetent lawyer out of the way, and carry on yourself. But you cannot.").
75. Id. at 266. He adds that "these were not qualities that made for reflection, doubt or self-restraint in carrying out our extraordinary tasks. They were qualities that made for trouble." Id. He further describes the clerks as a group as "driven by ambition, insecurity, or both; combative, unfamiliar with failure, and obsessively committed to the importance of our 'principles.'" Id.
76. Id. at 12 (stating that he seeks "to provide a clear window into the unsettling interactions of Justices and law clerks as they write the law of the land").
77. The Court culture was a product of "what we, Justices and clerks together, wrought." Id. at 262.
78. Id. at 271-72 (regarding the preparation of additional concurrences and dissents). "Some clerks certainly encourage these independent writings. After all, every opinion represents another opportunity for a clerk (through his or her Justice) to make an impression on the law and to achieve a sliver of immortality as the ghostwriter for portions of U.S. Reports." Id.
79. Lazarus notes with some surprise that "the clerk channel remained eerily silent" while Justice Kennedy prepared his opinion in Patterson. LAZARUS, supra note 1, at 313. "The liberal clerks on the case were left to draw their own conclusions and read the occasional smug look on the face of a conservative counterpart." Id.
80. Lazarus suggests that Justice Kennedy's clerks were so incensed at his votes in the Batson cases "that they declined to work on the opinions." Id. at 544 n. 11.
81. Kennedy's clerks "were furious and frustrated at being cut out of what seemed a history-making case." Id. at 472.
82. Id. at 501.
83. See LAZARUS, supra note 1, at 266 (referring to certain clerks as "the smartest and most aggressive cabalists" who "shored up the work of weaker members in other Chambers"); see also id. at 395 (making reference to "two of the Court's smartest and fastest-thinking clerks"). This phenomenon reared its head during my clerkship, as well, when two clerks took it upon themselves to prepare ordered lists of the smartest clerks. I am bemused, now as then, that in this elite - and very lucky - group of 33 some still viewed it necessary to engage in hierarchical ranking.
84. Id. at 274.
85. Id. at 419.
86. Id. at 275.
87. LAZARUS, supra note 1, at 275.
88. Id. at 419. Lazarus describes two clerks, from opposing sides of the ideological spectrum, trading "taunts and epithets before graduating to shoves and swings that drove them into the courtyard fountain" after a clerk's happy hour at the end of the term. Id. While to Lazarus this was "a fitting end to the term, a mismatch of vaguely pathetic liberal rage against the bullyboy swagger of ascendant conservatism," it reads much more like the behavior of spoiled and petulant children in need of a nap, which, given the workload at the Court, they might well have been.
89. Once again, this is not unique to Lazarus's experience; Justice Frankfurter once referred to the "present tendentiousness" of the Court's law clerks. SCHWARTZ, supra note 9, at 51.
90. This is not new either; see REHNQUIST, SUPREME COURT, supra note 3, at 37 ("It would be all but impossible to assemble a more hypercritical, not to say arrogant, audience than a group of law clerks criticizing an opinion circulated by one of their employers.").
91. He suggests that Justices O'Connor and Kennedy, in particular, are "susceptible to clerks' arguments and delegate to them almost all the opinion drafting and doctrine crunching." LAZARUS, supra note 1, at 274.
92. Justices were "susceptible and, in some cases, even eager for the polarizing advice of their clerks." Id. at 275.
93. Id. at 416.
94. Id. at 274.
95. In preparing his opinion in Webster, the Chief Justice sought deceitfully and surreptitiously to overturn the most significant decision of the previous generation. In an opinion that ignored the monumental legal issues at stake (issues essential to defining the Court's proper role) and that offered transparently silly or undefended justifications for its unprecedented conclusion, he proposed to take back a personal liberty cherished and counted on by millions of women. Id. at 423.
96. LAZARUS, supra note 1, at 394.
97. Id. at 322.
98. Id. at 428.
99. Id.
100. Kennedy "yearned to be a phrasemaker . . . so much so, in fact, that with no apparent irony he implored one law school professor to find him a clerk who could write like Oliver Wendell Holmes." Id.
101. LAZARUS, supra note 1, at 162.
102. See id. at 301-02 (arguing that Justice Scalia, while purporting to be an originalist, abandoned originalism in the affirmative action cases).
103. "[H]e cast his vote and that was about all." Id. at 278.
104. Id. at 310.
105. Id. at 279. Lazarus even criticizes Justices who were not there at the time of his clerkship, describing Justice Souter as paralyzed by his "self-described 'reverence' for the place," id. at 442, and Justice Thomas as "willing[] to sacrifice every inch of his personal dignity to satisfy his own ambition," id. at 458, and carrying "an aura of . . . indifference to the institutional culture to which he had ascended." Id. at 457.
106. LAZARUS, supra note 1, at 39.
107. Id. at 513.
108. Id. at 17.
109. Id. at 19. This unfortunate phrasing perpetuates itself in his description of Justice Stevens as hiring clerks from "the better midwestern law schools." Id. at 20.
110. Id.
111. LAZARUS, supra note 1, at 20.
112. Id. at 247.
113. In discussing the views of Chief Justice Rehnquist, he refers repeatedly to memoranda Rehnquist prepared while a law clerk to Justice Robert Jackson. Id. at 144-45; see also id. at 146. He argues that Arizona v. Fulminante, 499 U.S. 279 (1991), was satisfying to Justice Rehnquist because he had argued that the harmless-error rule should be applied to coerced confessions during his clerkship. Id. at 444. Justice Jackson, a fervent advocate of the Fourth Amendment, was adamantly opposed to the Court's analysis in the coerced-confession cases. See Margaret Raymond, Rejecting Totalitarianism: Translating the Guarantees of Constitutional Criminal Procedure, 76 N.C. L. REV. 1193, 1231-34 (1998).
114. 410 U.S. 113 (1973).
115. Lazarus argues that Fried resented Justice Blackmun because Blackmun's opinion in Roe "substantially discredited the self-restrained yet flexible approach to due process liberty that he had helped Harlan fashion in [Poe v. Ullman, 367 U.S. 497 (1961)]." LAZARUS, supra note 1, at 398; see also id. at 334.
116. 381 U.S. 479 (1965).
117. These were Stephen (later Justice) Breyer and John Hart Ely. LAZARUS, supra note 1, at 340 n.*
118. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
119. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
120. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
121. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
122. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
123. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
124. The NAACP organized a demonstration at the Court in October 1998 to protest the lack of minorities among Supreme Court law clerks; nineteen civil rights advocates, including NAACP President Kweisi Mfume, were arrested at the demonstration. See Zerline A. Hughes, Civil Rights Advocates Arrested in Protest of Law Clerk Hirings, L.A. TIMES, Oct. 6, 1998, at A16; Mfume Among Blacks Arrested for Protesting Lack of Minority Clerks at U.S. Supreme Court, JET, Oct. 26, 1998, at 4. The NAACP subsequently instituted a campaign to urge the Justices to hire more minorities and women as law clerks. See Tony Mauro, Court Pressed on Lack of Minority Law Clerks, USA TODAY, Dec. 2, 1998, at 3A. Three members of Congress also wrote expressing concern about the matter and received a letter from the Chief Justice in response, agreeing that the matter was a concern but noting the importance of preserving the Justices' freedom to select law clerks without Court input and his view that change in the demographics of the pool from which law clerks were drawn would ultimately lead to more diversity in the clerkship ranks. See Tony Mauro, Rehnquist Blames Grad Pool for Lack of Diversity, USA TODAY, Dec. 8, 1998, at 3A; Warren Richey, Debating Diversity in its Own Ranks, CHRISTIAN SCIENCE MONITOR, Dec. 11, 1998, at 2. For criticism of this response, see William Raspberry, Clerks and Color, WASHINGTON POST, Dec. 13, 1998, at C07; Carl Rowan, Rehnquist's View of Minority Law Clerks, BUFFALO NEWS, Dec. 14, 1998, at 3B.
125. Most recently, Justices Souter and Thomas were asked about this issue when they appeared before the House Appropriations Subcommittee on Commerce, Justice, State and Judiciary with regard to the Supreme Court's budget request for fiscal year 2000. See Hearing on Fiscal 2000 Commerce, Justice, State and Judiciary Appropriations Before the Subcomm. on Commerce, Justice, State and Judiciary of the House Comm. on Appropriations, 106th Cong. at *29, *31 (1999), available in LEXIS, Federal Document Clearing House File. At that hearing, Representative Jose E. Serrano suggested the possibility that this issue would be dealt with in a bill and discussed on the House floor. See id. Serrano's reference may have been directed to two bills, one urging the Court to hire more minorities, and another that would bring all employees of the federal judiciary under the protections of Title VII. See Tony Mauro, Justices Grilled on Clerk Hiring, USA TODAY, March 15, 1999, at 8.
126. Most recently, Justices Souter and Thomas were asked about this issue when they appeared before the House Appropriations Subcommittee on Commerce, Justice, State and Judiciary with regard to the Supreme Court's budget request for fiscal year 2000. See Hearing on Fiscal 2000 Commerce, Justice, State and Judiciary Appropriations Before the Subcomm. on Commerce, Justice, State and Judiciary of the House Comm. on Appropriations, 106th Cong. at *29, *31 (1999), available in LEXIS, Federal Document Clearing House File. At that hearing, Representative Jose E. Serrano suggested the possibility that this issue would be dealt with in a bill and discussed on the House floor. See id. Serrano's reference may have been directed to two bills, one urging the Court to hire more minorities, and another that would bring all employees of the federal judiciary under the protections of Title VII. See Tony Mauro, Justices Grilled on Clerk Hiring, USA TODAY, March 15, 1999, at 8.