Behind the Crimson Curtain

1.

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 he “had never met a homosexual.”

Some of Lazarus’s apparent scoops turn out to be hokum; it just isn’t true, for example, that the Reagan appointee Sandra Day O’Connor “so distrusted Brennan…that she refused to join any of his majority opinions for the Court.”³ And his derisive characterizations of some Justices—he claims clerks called the late William J. Brennan, Jr., “Piggy” for hogging important opinions, Ford appointee John Paul Stevens “the FedEx Justice” for sending in drafts from his Florida home, and Reagan appointee Anthony Kennedy a bit of a “priss” for his stolid manner—show Lazarus to be churlish and indiscreet but not unethical. While it may still turn out that Lazarus has been cagey about his sources—he declines to footnote any material supposedly from confidential interviews—the book is not the tell-all it has been cracked up to be.

The real “scandal” stirred up by Closed Chambers, if there can be said to be one, runs much deeper. For Lazarus challenges a powerfully predominant conception of the Supreme Court as a branch whose work of legal interpretation is distinct from, and transcends, ordinary politics. This conception is reinforced by the appearance of the Supreme Court itself: in their white marble temple the Justices emerge in black robes from behind a crimson curtain to hear argument and to pronounce judgment. A priesthood is not expected to engage in buttonholing, poll-taking, logrolling, compromising, nose-counting, or any other tactics of political life. The Court’s work is immunized from public exposure and accountability in the first place precisely because of a common understanding that adjudication, especially constitutional interpretation, is a different enterprise from legislation.

Yet Lazarus’s major premise is that the Court’s work has in fact been rife with political ideology. His minor premise is that, day to day, the Court is not so different from the political branches—with powerful and manipulative staffs (the clerks), overt tradeoffs among the Justices in their quests to accumulate five votes, and considerable sensitivity to popular opinion. Like Toto in the penultimate scene in The Wizard of Oz, Lazarus pulls back the crimson curtain to reveal the Court’s human face, or at least he sees himself as doing so.

Specifically, he portrays his clerkship year as the last gasp of an exhausted judicial liberalism, no longer able to protect criminal defendants’ rights, race-based preferences, or the widespread availability of abortion from an ascendant and even swaggering judicial conservatism bent on promoting popular majoritarianism and states’ rights. He describes the aged Justices Blackmun and Brennan walking “slowly, side by side, toward their Chambers, with [Justice] Marshall a half step behind,” his arms draped around them “as though they were pooling their energy.” In contrast, the newly appointed Justice Kennedy “fairly bounded down the Court’s wide hallways,” and, at oral argument, joined Chief Justice William H. Rehnquist and fellow Reagan appointees O’Connor and Antonin Scalia in energetic arias of questioning, “a soprano and two tenors to complement Scalia’s booming bass.”

According to Lazarus, liberals used the Court successfully in the 1960s and 1970s to restrain conservative political majorities, for example by getting the Court to temporarily suspend the death penalty and to proclaim rights to contraception and abortion. But they overreached, claiming to find in the Constitution support for their own ideology of social justice and personal liberty. By opposing Bork’s nomination in explicitly ideological terms and caricaturing him as someone who could only turn back the clock on civil rights, they further politicized the Court, sowing the seeds of conservative revenge. According to Lazarus, this history explains why there was the self-proclaimed “cabal” of conservative law clerks who sought on behalf of their bosses to retake constitutional turf from “libs” like Lazarus, whether by “greas[ing] the tracks toward death” for capital defendants or by advocating that Roe v. Wade be overruled.

In large part, he writes, the conservatives succeeded, for example by dramatically curtailing habeas corpus hearings in federal court for the condemned, or more recently by limiting the power of Congress to regulate such matters as gun control. The result today, in Lazarus’s epic of decline and fall, is a Court with “two sharply divided wings” but no center, evincing “the same accusatory and uncompromising spirit of faction that now poisons American political society at large.”

The moral of this story, as Lazarus tells it, is that both sides should lay down their arms in favor of a conception of adjudication in which political ideology would have no place at all. Judging, as Lazarus would have it, should be a “delicate mixture of logic tempered by wisdom, reflection, imagination, and as much detachment as a trained mind can achieve,” a “process of deliberation” toward the “most appropriate and just interpretation” of a law, calling for “trust and consideration,” “candor” and “fraternity,” “discretion and reasoned judgment,” “balanced, impartial, collegial” exchange, “consistency and principle,” “openmindedness and intellectual integrity”—in short, a form of personal self-discipline and collective good manners that would, if practiced diligently, enable Justices “to deliberate carefully and sincerely, and then to articulate well-reasoned and persuasive explanations for their decisions.”

While it is certainly hard to be against any of these things, such homilies are about as helpful as suggesting that a judge should simply “decide the case that’s before him.” They are perfectly unobjectionable because they are perfectly empty. Indeed, Lazarus’s Manichaean account of ideological polarity and appeal for a transcendent, ideologically neutered bench manages to miss entirely the dramatic story of the Court over the last decade, which is one of surprising moderation. Contrary to Lazarus’s account of a Court with two wings and no center, the Court’s center has dominated its wings. The mystery is how this could possibly have happened.

While Presidents Reagan and Bush between them filled five seats on the Court—President Bush added David Souter and Clarence Thomas to Reagan’s appointees O’Connor, Scalia, and Kennedy—they were unable to achieve the radical doctrinal shift sought by the right-wing factions of their party. The Court they created kept abortion legal and official prayer out of public schools. It also protected flag-burning, struck down state term limits on federal legislators, tossed out an act of Congress granting religious exemptions from state laws, required the admission of women to public military academies, and invalidated a state constitutional amendment attempting to bar all claims of antigay discrimination. To be sure, President Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer, contributed to some of these decisions. But every one of them required at least one vote from an appointee of Reagan or Bush.

Even in matters where there was an undeniable rightward drift, the Court has stopped short of the ideological extreme. For example, the Court has been increasingly willing to invalidate race-based affirmative action as a violation of the equal protection rights of whites, but Justices O’Connor and Kennedy have kept it from imposing the absolute norm of colorblindness favored by Justices Scalia and Thomas and perhaps Chief Justice Rehnquist. Keeping open the possibility of some race preferences meant to redress past discrimination—even where the state was not clearly responsible and the beneficiaries were not clearly the victims—the Court has given some breathing room to state and local governments and federal agencies seeking to do business with racial minorities. Indeed, the existence of that possibility is confirmed by political efforts to cancel it—for example, California’s recently enacted Proposition 209, which bars virtually all use of race-based preferences by state and local agencies.

Further circumstantial evidence of the surprising moderation of the Court may be found in the extraordinary flurry of proposals for constitutional amendments recently working their way through Congress. While amendments, which require large supermajorities, have been extremely rare in our tradition, conservative dissatisfaction with the Court has prompted a large increase in proposals that would overrule its decisions, for example by imposing term limits or by allowing prosecution of flag-burners and prayer in public schools. Some of these have come close to passage. Political energies that once went into efforts at court-packing now seek to bypass the Court altogether.

2.

What might explain the Court’s centrist tendencies? To the extent he even acknowledges them, Lazarus’s explanation is reductive, attributing particular Justices’ moderate actions to personal bias, willfulness, or caprice: for example, Justice Souter is liberal on race because of the “New England Republicanism” that is “bred in his bones,” and the opinions of Justices O’Connor and Kennedy “modulating the conservative insurgency” spring from their quest for approval from the liberal press or the sense of power that comes with holding the swing vote “hostage to their personal and often idiosyncratic views.” Such psychologizing, however, fails to capture the intellectual sources of judicial moderation, which include institutional and craft concerns, and the complexity of constitutional ideologies.

First, Justices are likely to concern themselves with legitimizing the Court as an institution. Lacking the power of sword or purse, the Court depends for its authority on people’s sense that they ought to comply with its rulings even if they disagree. This is a profound power, not to be taken for granted; our Supreme Court Justices are often asked by judges in other nations not about the theoretical niceties of their opinions but rather about how they manage to get their decrees obeyed. This normative authority depends on certain social preconditions. For one thing, the Court must not appear simply to have been captured by short-term victors in ordinary politics; for another, it must not stray too far beyond popular opinion. Failure of either condition risks fatal cynicism among losers and a breakdown of respect.

It is hardly mere personal idiosyncrasy for Justices to attend to these factors, and to do so may well pull them toward the center. Indeed, in one of the best-told episodes in his book, Lazarus describes the joint opinion of Justices O’Connor, Kennedy, and Souter in the 1992 Casey decision—reaffirming the core holding of Roe v. Wade that abortion may not be criminalized, while allowing the states to discourage abortion by other means—as just such an effort to defend the Court against any popular suspicion of right-wing capture. Lazarus then inexplicably undercuts the point, claiming that such outcomes are “the opposite of the coherent, principled decision making to which the Court should regularly aspire.” But 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.”

Second, Justices develop jurisprudential approaches—that is, ways of crafting legal rulings—that may affect how moderate their opinions appear. To oversimplify considerably, legal directives can take either of two forms: clear-cut rules (“drive no faster than 65 MPH”) or flexible standards (“drive safely for existing highway conditions”). Rules constrain the discretion of decision-makers more than standards do, for they require the determination of fewer issues of fact. Those who favor rules stress their advantages of certainty, predictability, formal equality of treatment, and clear notice; those who favor standards counter that their approach is more substantively fair and accurate and more practical because capable of flexible adaptation.

Constitutional doctrines, like traffic rules, may be expressed in the form of either rules or standards. For example, a rule of strict separation of powers might hold the Office of the Independent Counsel unconstitutional for usurping executive power reserved absolutely to the President. But the more flexible standard actually endorsed by the Court in 1988 upheld the constitutionality of that office, saying that it impinged upon executive power but not too far. A rule that the First Amendment applies only to the regulation of speech, not its selective funding, would give the National Endowment for the Arts carte blanche to turn down artists and would give public television stations full discretion to keep political candidates off the air. But the more flexible standard endorsed by the Court last June required government to have a reasonable basis for such rejections; and this would exclude hostility to the speakers’ ideas. Basing decisions on standards leaves more distinctions to be worked out in future cases, allowing the losing side to suppose that it might win the next time round if the facts were slightly different.

Of the five Reagan-Bush appointees to the Court, only two—Justices Scalia and Thomas—turned out to favor rules; the other three (Justices O’Connor, Kennedy, and Souter) have tended to favor standards. A preference for constitutional standards over rules, however, will tend to favor political moderation because rules are generally more effective than standards at bringing about sharp and lasting changes in constitutional doctrine. For example, Justice Scalia, an ardent proponent of rules, tried over several years to confine the interpretation of the First Amendment’s ban on the establishment of religion to the narrow propositions that government shall not coerce faith through oaths or tithes or prefer one sect over another. But Justice O’Connor, an ardent balancer and skeptic of rules, led the members of the Court to converge instead on a broader standard invalidating any public symbol a reasonable observer would construe as endorsing religion—for example, a lone Christmas crèche on a courthouse staircase or recitation of a graduation prayer. Thus what looks like a substantive doctrine widening the separation of Church and State is explained in part by methodological distrust of sharply defined or categorical approaches.

As with a Justice’s splitting of ideological differences in order to preserve the Court’s legitimacy, there is nothing unprincipled about a Justice’s commitment to a jurisprudence of rules or standards, even though such a commitment might be external to the texts and materials particular to a given case. The embrace of rules or standards reflects opposing attitudes toward knowledge and history. Those who favor rules descend from the legal positivists and codifiers of the nineteenth century—rationalists who sought to reduce legal controversies as much as possible to matters of fact, not value. Those who favor standards more closely resemble common-law judges, for whom legal interpretation rests less on pure reason than on the organic accretion of past history, precedent, and collective social practice. Those who favor rules think their approach more democratically legitimate because it ties judges’ hands, at least after a rule is announced, against the exercise of subjective discretion; those who favor standards think it more judicially modest to adhere to evolving social traditions than to assert the philosophical or interpretive certainty required to announce a single inflexible rule.

A preference for rules or standards may cut across the particular issues and ideologies at work in a given case. There is no inherent ideological direction to either one. But in a period when the Court is moving rightward, the embrace of standards over rules will lead conservative Justices to reach results that appear more moderate or even liberal than would a rule fashioned from a similar ideological starting point. The predominance of standards on the recent Court is part of the story of its unexpected moderation.

A third source of the surprising moderation on the Court is that, to the extent that political ideologies have a part in outcomes, they are themselves exceedingly complex. For example, a Justice expected to follow a conservative ideology in constitutional cases might simultaneously be drawn to any of the following: adherence to the original text, adherence to the will of the Framers, adherence to judicial precedent, majoritarianism, libertarianism, antifederalism, traditionalism, capitalism, rugged individualism, law and order, and the rule of law. But these different strands may pull in competing directions in any particular case.

For example, Justice Scalia, an outspoken advocate of textualism and originalism, has derided the Court’s efforts to infer a right of reproductive “privacy” from the Constitution’s other protections of liberty. But he has somehow managed to find property rights against environmental regulation and states’ rights against federal administrative interference implicit in what he sees as the Constitution’s tacit postulates. Justice Thomas often votes with the government in criminal cases. But he has been willing to vote against the government when he finds that the Framers’ intent or our evolving tradition forbids modern law enforcement practices such as unannounced drug raids, the entrapment of pornography consumers, or the seizure from citizens of large sums of currency amounting to excessive fines. And while Justices Scalia and Thomas often vote together in favor of what they deem the originalist position, they have sometimes diverged when originalism clashes with another strand of constitutional conservatism. For instance, Justice Thomas voted for the right to distribute election leaflets anonymously, reasoning that the Framers themselves had used pen names in their writings; Justice Scalia would have deferred to the widespread legislative policy of requiring identification to prevent electoral fraud.

Lazarus rightly situates the cases he discusses in the shadow of competing ideologies. Concentrating primarily on death penalty and affirmative action cases, and thus on competing attitudes toward racial injustice and federalism, he describes liberalism as the view that “racism is endemic; that state judicial systems, especially in the South, cannot be trusted; and that the federal courts and, ultimately, the Supreme Court must serve as the guarantors of social justice.” Conservatism, especially for Justices “born in the West” to a “frontier Constitution,” he identifies with the view that the states are benign laboratories of experiment while the “chief threat to liberty comes not from local officials but from the behemoth of the federal government.”

If we discount Lazarus’s determinism by birthplace, there is much to this view, as far as it goes. But Lazarus understates the complexity of such ideologies and thus fails to note how their internal tensions might yield, in particular cases, an unexpected centrism. For example, his account of a conservative revival of states’ rights cannot explain why conservative Justices would uphold property rights against state experiments in environmental protection. Nor can he explain why conservative Justices side with whites’ equal-protection claims against efforts by popularly elected state officials to include racial minorities in procurement or congressional delegations, or why they defend the Congress and the individual liberties of federal voters against attempts by states to impose congressional term limits. In short, just as there is more to the Court’s recent history than an ideological divide, so there is more to the ideological divide than can be captured in what Lazarus calls the shift from the “spirit of Scottsboro” to the “spirit of federalism.”

How did Lazarus manage to miss the story of the Court’s moderation? Part of the answer is that Closed Chambers got stuck in time a decade ago. Transfixed by his own experience, Lazarus absurdly magnifies out of proportion the importance of the term he witnessed:

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 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.

This is nonsense. As Lazarus can barely bring himself to concede, when Congress, prodded by Senator Edward Kennedy, passed the Civil Rights Act of 1991, it swiftly overturned the three major cases of the 1988-1989 term that had construed racial remedies narrowly. The trends Lazarus notes toward restriction of death penalty appeals and the scope of affirmative action had been set in motion long before, as he himself explains well in background chapters. And the conflict over abortion that he observed during his term ended undramatically when Justice O’Connor, presaging her later vote to uphold Roe, wrote a pivotal but narrow concurrence simply restating the then-existing law.

But acknowledging the centrism of the recent Court would have undermined Lazarus’s morality tale. If he can portray the Court as polarized, he can then reject both extremes, and urge instead a mode of adjudication of “reason, consistency, and principle” transcending ideology altogether. It is as if, having played Toto to the Court’s Oz, he thinks there is somewhere over the rainbow after all. Had he acknowledged the Court’s centrism, and the intellectual content of its institutional, jurisprudential, and ideological tendencies, he could not have indulged in his long lament. He would have had to treat Justices O’Connor, Kennedy, and Souter as the heroes of his story, and to admit that the oscillating backlash he describes had in fact come to rest at equilibrium.

Of course, Lazarus might reply that it is not ideological moderation he is after—political centrism being, after all, an ideology—but a mode of adjudication that involves no ideology at all. This echoes a position in classical formalist legal thought insisting that adjudication is entirely distinct from legislation—the position symbolized for the lay audience by the marble temple, crimson curtain, and black robes. But American constitutional debate has arguably long abandoned such a position. Contemporary positivists think that the legislative component in adjudication is a matter of more or less. Even Justice Scalia, perhaps the most positivist member of the current Court, has written that “courts have the capacity to ‘make’ law.”⁴ A generation or more of legal scholarship has been devoted not to denying the existence of judicial lawmaking but to explicating how its scope can be limited—for example, by the constraints of fitting any particular ruling coherently into the rational pattern of prior decisions, or by the institutional constraints that, in the famous phrase of Justice Oliver Wendell Holmes, lead judges, who “do and must legislate,” to “do so…interstitially,…confined from molar to molecular motions.”⁵

To admit that political ideology has a part in the Court’s interpretation of the Constitution—necessarily so, given its terse, broad, ambiguous, and open-ended language—is emphatically not to say that constitutional adjudication is the same as ordinary legislation. As Ronald Dworkin puts the point: “Lawyers and judges cannot avoid politics in the broad sense of political theory. But law is not a matter of personal or partisan politics….”⁶ Lazarus confuses the two senses of politics, and in so doing misdescribes the rich and intellectually powerful conservative challenges to constitutional doctrine over the last decade as fits of personal pique.

Lazarus seems to favor the European model in which opinions of the high court are issued without concurrences or dissents; the only opinions he praises unreservedly were unanimous. But a distinctive feature of the modern US Supreme Court is its proud tradition of vigorous and open disagreement in its opinions. These disagreements seem to leave the public quite unfazed. The journalists who cover the Court routinely refer to the Justices as “liberal” or “conservative,” and still the public authority of the Court seems undiminished; the judges of other nations still marvel at the Court’s power to command obedience to its decrees. The sources of this power in the actual behavior of the Court are a subject of much intellectual and social interest. Regrettably these have largely escaped the attention of Mr. Lazarus.