Monday, January 17, 2005

Closed Chambers

"Closed Chambers..." By Edward Lazarus

This book provides an insider account of how the highest court in the United States works. The author relies on first hand accounts, interviews, Supreme Court records and a wide array of documentary evidence, to weave an intricate web of history, and case law, that illustrates the inner workings of the Supreme court and its idiosyncracies. The principal aim of the author is to illustrate how the court has over the past four decades been beset by a number of problems, principal among them being a degeneration into partisan bickering. This is compunded by a general lack of debate and an abdication of significant powers to the Law Clerks.

The author uses a number of salient issues (and accompanying cases) to illustrate his points and view of the court. The issues he chooses are: the death penalty, Abortion, and Civil rights/liberties. From these issues the author is able to convincingly illustrate how the Court has moved from its ideal conception: "We (America) have vested in the court, a broad authority to interpret the constitution in the belief that unelected and, therefore, independent judges can wield powers of reasoning, imagination, and wisdom that will raise their decisions above the trade-offs of everyday voting." (9), to a situation where it has been poisoned by the "epidemic partisanship and lack of character"(7) that characterizes the other two branches of government.
The author provides a view of the court that one may not be accustomed to. By looking at how decisions are arrived at in the court he illustrates that many more people (other than the nine Justices) play a role in the decision making process. From the administrative staff, to the support staff and in particular the Law Clerks, the author paints a picture of a living "ecosystem" where various parts interact to produce the law of the land. one of the particular argument posited by the author, the most significant and most discussed, is the ideological division of the court. The author begins by tracing the source of the current schism to the turbulent 1960's and in particular the Supreme Court under Chief Justice Earl Warren. During this period, the Court developed what the author refers to as the "Rights Revolution"(7). A revolution that brought about an increased focus on the ills of society, from segregated schools, racial discrimination, sexual privacy, and rights of the poor, criminal defendants and religious minorities. Warren’s court had no qualms with using the Court as a pulpit to rectify what it so as the moral failings of society. The perceived "judicial activism," spurred Conservatives around the nation to criticize what they so as a court that was greatly overreaching and venturing into the realm of social engineering. Conservatives so the court as a sign of the declining moral standards of the time, where crime was rampant and the judicial system falling into disrepute.
Today’s battles, the author argues, are a conflict between those (Liberals) who want to maintain the status quo developed under the Warren Court, and those who are for a counterrevolution, (Conservatives) who want to roll back the excesses of the Warren Court.

The result of the conflict has been a decline in civility, willingness to debate, development of default positions, "vote counting" and the development of centers of power among those members of the court that swing between the two poles. The author is particularly disturbed by the power that "swing" judges have, he believes that the power is too immense and contrary to America’s principal of shared power. He gives the stark example of Justice Powell, who according to statistics, was in the majority 90% of the time (222). His view was law 9 out of ten times. The swing voter consideration also increases the use of "vote counting" to ensure that one has the majority: "When a justice circulates a draft opinion, especially in a close case, he or she, is hoping for a couple of quick joins. Having a few other justices sign on to your draft right away creates a sense of momentum toward "getting a court" - Securing the crucial four other votes necessary to guarantee a majority." (62) Moreover, it creates a situation where razor thin majorities (5-4), typically decide close cases. This is obviously unacceptable.

The author also illustrates (via death penalty cases), how intractable to reason the Justices can be, he illustrates how, justices develop default positions on salient issues, and refuse to be swayed by the issues raised by a particular case (159), Justices on the extreme end of each pole, are the most susceptible to this.

The author does raise some substantial issues regarding the cleavages within the court. However, I have a number of reservations regarding his views. To begin with, it is possible that the author over emphasizes the ideological split by focusing on wedge issues such as abortion, the death penalty and affirmative action. These are issues that typically involve great partisan emotions and are unlikely to produce any common ground, or room for negotiation. Moreover, the divisions may not be a result of the Justices, unwillingness to compromise, but a result of societal pressure. From the nomination process, (where ideologues hold sway), to letters from the public and public debates on issues, the Justices are faced with very partisan situations and since Justices do not work in a vacuum, we can only expect that the schisms in society will creep into the Court.

In addition, I would argue that it is possible that the current cleavages are just part of the normal evolution of jurisprudence. The author points out the battles that existed between "The Four Horsemen"(conservatives) and "Three Musketeers" (Liberals) during the 1930's (283). The very fact that these battles existed, would lead one to conclude that the current schisms are not necessarily novel, or very destructive. They are probably the symptoms of a society that is slowly shifting to one direction (Conservative) after a period of Liberal ascendancy (the opposite would be true for the 1930's).

The authors focus on "Swing votes" is also somewhat problematic. In a country that cherishes compromise and finding the middle way, it is quite conceivable that the "Swing votes" play an essential role in ensuring a balance between the extreme forces of the Right or Left. The swing Justices, compel the other Justices to come up with more centrist opinions (as in the Webster case -400). This ensures that no particular wing has ascendancy and, therefore, the passions that develop when one party is in the minority (as in the 1930' and 60's) are tempered and moderated.

The author also gives a great deal of attention to the role of the Law Clerks. As a former clerk himself, the author has a great deal of credibility on this particular issue. He begins his discussion by giving a brief description of the job and what it entails: writing drafts of Majority or Dissents, drafting "bench" and Post-oral argument memos, commenting on draft opinions, dissents and concurrences, and critically, recommending whether to grant petitions of Certiorari and stay of executions. The Clerks are involved in virtually all the stages of decision making in the court. This gives them a great deal of power and influence: "How we (clerks) described a given case, which facts we put in and which we left out, how we characterized the competing arguments, and how insistently we put forward our own points of view - these things mattered deeply and, at least in a few instances, undeniably made the difference between life and death."
The authors principal concern with the delegation of powers to the Clerks, was that it gave the inexperienced, and often partisan Clerks and opportunity to greatly influence court decisions.(266-268). He is also concerned by the ideological conflict that persists between the Clerks - to the point that fights break out. Moreover, he argues that the Justices, by giving Clerks ability to draft opinions, and limit their work to "editing", forgo an opportunity to reevaluate the facts of the case and possibly come up with novel or different conclusions to what they were previously predisposed to. This has the effect of making the Justices sheltered and their opinions devoid of any consistency from one year to the next (272).

The author, focuses his whole assessment of the Clerks on his experience. This means that the authors views are constrained by the particular context that existed at the time. It is quite possible that the Clerks before and after his time, had a more collegial experience and did not have as much influence as he and his cohorts did. Moreover, the author downplays any positive contribution the Clerks may make: freeing the Justices of administrative tasks, providing a vessel for the Justice to sound off his/ her ideas and lessening the workload of individual justices. These are issues that the author could have raised to mitigate his overwhelmingly dim view of Clerks.

It is quite unfortunate that the author provides no real solutions to the problems he identifies. He dwells too much on the problems and not providing solutions to them. For example, would adding more Justices eliminate the problem "swing" justices? Would eliminating the position of Law Clerks be an essential way of limiting their influence? The author should have provided some possible reforms, that would ensure that the Supreme Court lived up to its ideals, and eliminated the effects of partisan politics.


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3:21 AM  

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