Booknotes

Mr. EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBERS": Well, I think the theme of the book is the idea that these justices are closed off from one another. One of the things that I was talking about at great length in discussing the cases of death penalty and abortion and race discrimination is that the justices themselves are very isolated in their decision making. They don't talk to one another the way we would expect them to. And so that idea of closed chambers, the isolation within the court, was very important. And at the same time, it's closed off from the American people. We don't know enough about how our most important cases are decided. Part of the enterprise of the book is to tell the American people about how those cases are decided, and so it seemed an apt title for that reason.

Mr. LAZARUS: Well, there have been journalistic accounts in the past. "The Brethren," of course, in--in--I think, that's 1979. It was published--is the most famous of those, where the--you know, Bob Woodward, the famous journalist, was able to penetrate the court and--and learn a lot about how the Burger court worked. The difference, I think, between that kind of book and the book that I've written is two things. One, that I was there for a year as a law clerk. That's a--sort of a right-hand assistant to one of the justices. And the second thing is that I wanted to talk about the great issues that the court is deciding. Most c--books that--that write about the court, they deal with a very broad range of issues and just kind of skim the surface of each issue. I wanted to get into some of these issues, like the death penalty and abortion and race discrimination, deeply. And so that's when I speak of epic struggles. What I'm talking about is the--the real division in our society about how to proceed on these issues.

Mr. LAZARUS: Well, each justice is entitled to four. Now Justice Stevens has habitually only taken three. The chief justice has only taken three, although he's, in fact, entitled to an extra clerk. By and large, 36. Young law school graduates. I was 28 years old. I had had one year of clerking for a lower federal court judge, but essentially, y--you're right out of law school and there are four of you working together for one of the justices.

Mr. LAZARUS: I went to Yale.

Mr. LAZARUS: Well, I worked for Justice Harry Blackmun, and he is a--a Nixon appointee from the early '70s from Minnesota.

Mr. LAZARUS: And I was there from 1988 to 1989. It starts--the clerkship starts in July, shortly after the court recesses for the summer. So July of 1988. And then you follow one year of the court. You're there until July of the next year, after the court recesses again.

Mr. LAZARUS: Four that who--who--who have left. And that is Justices Brennan and Marshall, the sort of old liberal guard from the Warren days, then my own former boss, Justice Blackmun, is retired, as had Whizzer White, who was a Kennedy appointee.

Mr. LAZARUS: Well, I certainly talked to him many times during the writing of the book. I haven't spoken to him in the--in the few weeks since it came out.

Mr. LAZARUS: Not at this point, no, although I hope he's enjoying it.

Mr. LAZARUS: The harshest thing someone said is in The Wall Street Journal. There was the suggestion that I had done something improper in writing the book and I--that's ridiculous.

Mr. LAZARUS: Well, I'm not the first clerk to ever write a book. In fact, the chief judge of the Fourth Circuit, Wilkinson, he wrote a book after he clerked. It was a very different sort of book in that--that it--it wasn't as critical as my book is. But it isn't as if clerks haven't written about their experiences before.

Mr. LAZARUS: Absolutely not.

Mr. LAZARUS: Well, there is, of course, a--a code that says when you're at the court, you can't discuss pending cases with the press. That goes without saying. But it--that--that code only applies during your year there. But--but let me add this: There's--I don't think this is relevant to my enterprise. What I did for five years was to research and report about the Supreme Court. And that is true that I developed sources among, you know, former court employees--I won't go into w--who those people are--who did speak to me about things that had happened. But I'm very careful in my--in the book not, for example, to include substantive conversations between me and Justice Blackmun and things like that because--and there is a confidential obligation. It's not written in a code. It's--it's one that has to be balanced against the public interest. And there is a strong public interest here. But all relationships like clerk to justice have a certain confidential aspect to them, and--and everybody has to make his or her own judgments about balancing that and--and the call of history.

Mr. LAZARUS: Well, in--in--in--each--each justice has chambers, and that's hence closed chambers, of course. And the chambers is--is a sort of suite of offices and the justice has a--his or her own office and then there's an office for two secretaries. Then there are two clerk offices, each one shared by two clerks right next door. Usually there's an annex upstairs, too.

Mr. LAZARUS: Well, we--we always started the same way, which is at about 8:10 in the morning, the four clerks to Justice Blackmun and the justice would go to the main cafeteria at the Supreme Court and we would have breakfast together. And that was the ritual by which we really came to know the justice. And amazing things happened at that breakfast from Justice Blackmun singing the Dartmouth fight song on key--and, you know, this is a man who was in his--I guess he was 80 at the time--to--I remember the first morning that we had breakfast together. It was a Monday. And I ordered pancakes. And he took me aside very quietly so that the cook couldn't hear and said, `You know, Eddie, I--the griddle goes stale over the weekend. You shouldn't have the pancakes on Monday.' And--and, you know, this was the kind of thing that developed almost a--a--a grandfather to grandson relationship between the justice and--and me. And I remember those--those breakfasts vividly and--and always will.

Mr. LAZARUS: It--it really varied. I know that the Chief Justice Rehnquist--he and his clerks had the occasional tennis game and Justice Kennedy, Saturday lunch was something that--that--it seems to me that--that they did fairly often. Justice Brennan would have coffee with his clerks in the morning, around 9:30. Each justice has his or own--her own way of--of developing that bond of--of--of cementing that family relationship that is, for one year, a clerk group.

Mr. LAZARUS: I'm at the United States attorney's office in the Central District of California. That's Los Angeles, which makes me a--a federal prosecutor.

Mr. LAZARUS: Just about six months. And I'm on leave now.

Mr. LAZARUS: I was born right here in Washington, DC, born and raised, you know, till I was 18 and went off to college.

Mr. LAZARUS: I also--to Yale. I took some time off in the middle and actually started a--a previous book that I wrote about an American Indian tribe's legal claims against the United States.

Mr. LAZARUS: Well, my father was an attorney here in town. He still is. And he represents Native Americans as--as basically 100 percent of his practice. And my mother's a docent here at the National Gallery, and she raised my brother and me and my sister.

Mr. LAZARUS: Well, during the term, the justices meet in their secret conference, usually on Fridays, to discuss the cases to decide, to vote on which cases are going to be heard later on in the year. And they--they walk--the inside of the court--it--it's--it's like a cloister in a church almost, but there's a red carpet there that--that the justices from that wing of the building walk along to the--to the suite where they hold their conference, which is at the center in the back, where the chief justice has his offices. And every week, one of the things that I always remarked on was--was just watching the justices walk.

And there are some images that really stick--stick with me, even today, which--for example, Justice Kennedy, he was, I think, in his mid-50s then, but he was brand-new to the court. And he would just bound down the hallway. You could see the enthusiasm with which he was coming to this job and--and--and really just feeling on top of the world. And--and then you had the three octogenarian justices, Blackmun, Brennan and Marshall, and the image I remember of--of them is that they would come back out of conference and Brennan and--and Blackmun would be in the front. And they're both short in stature and--and were quite old, of course, at that time. And Marshall, who was a very, very large man, would be right behind them and would be walking--would be walking behind them. And you never could quite tell whether he was sort of supporting them with a protective umbrella or whether they were a little bit supporting him by holding him up. And I think it captured a lot about our term, which was a term which was sort of the--the--the decline of--of the liberal way.

Mr. LAZARUS: That was printed, I think, in Life magazine.

Mr. LAZARUS: That--oh, that picture is taken in the justices' library. There is a small library on the second floor of the court which is reserved for the justices. And that was Justice Blackmun's second home. He was really the only one of the justices who used it regularly. And he would sit up there and--and do his work.

Mr. LAZARUS: The cabal was a group of conservative clerks, about 10 or so, who were at the court my year. They called themselves the cabal. And this was--this was a group of--of very conservative clerks who banded together, both socially and politically, to push a conservative agenda at the court. They were--one of the things that I describe in the book is--is a kind of civil war that was occurring in our legal culture at that time. And I think it really continues until--to this day. And in law schools, there's--there's a deep division between those who believe in, for example, Bork's theory of original intent, interpreting the Constitution according to the framers' intent, and those who, more along the lines of Justice Brennan, believe in a--a c--a more flexible living Constitution. And this was a group of--of clerks who were really devoted to the conservative Reagan-ite agenda and many of whom had clerked for Bork and who were determined to push that agenda on the court, if they could.

Mr. LAZARUS: The mastodon group was a--a later sort of sh--somewhat less organized reincarnation of that. But it--it's the same idea. They--what I tried to describe in the book is the way both conservative and liberal clerks, at that young age of 26, 27, 28, are really driven by ideology. And clerks have--they play a secondary role at the court. They're not puppet masters. But they play a very important role. And I think sometimes ideology carries away clerks on both sides and it just happens that the conservative clerks had much more colorful names for themselves than the liberal clo--liberal clerks did.

Mr. LAZARUS: Yes, that's--that right.

Mr. LAZARUS: Well, basically, what that means is that--and it varies from chambers to chambers, the degree to which the justices are just editing. But basically what it means is that--that law clerks, these young--young people, greenhorns out of law school, have the job of taking the justice's vote from conference and translating that into an actual opinion that is going to be pored over meticulously by the legal community. And one of the things I talk about in the book is how when you're doing the first draft of an opinion, you make the choices about what facts to put in, how to characterize those facts, what cases to put in, how to characterize those cases, all kinds of technical legal nuance that is going to be crucially important in future cases and how that opinion is interpreted. And unless a justice is unwrapping all of those choices, as he or she edits the opinion, then too much responsibility is falling to that clerk. And I don't think enough of the justices were really unwrapping all of those choices.

Mr. LAZARUS: That's correct.

Mr. LAZARUS: Well, I think in--implicitly so, although I will say this, which is that Justice Blackmun was a meticulous editor.

Mr. LAZARUS: Well, he sat up there in that justices' library and he went over every case, every--every nuance of that opinion. And I--and it was certainly his product when it came out of our chambers. But I still think that--that--that the idea of delegating the entire first drafting process to a clerk is--is too great.

Mr. LAZARUS: Well, that's--the clerk-back channel is--is my shorthand reference for the way justices can use their clerks to communicate things, to--to get a sense--for example, let's say you're drafting an opinion on a close case and you really need a--Justice Kennedy's vote. Well, one of the things that--that you may decide you're going to do, as a justice, is you're going to have your law clerk feel out Justice Kennedy's law clerk and say, `You know, here's the way I'm thinking about going on this. How does your boss feel about that? Do you have a sense?' And it--it's an informal way for the justices to communicate in. One of the things that I felt happened my year was that that informal channel of communication got clogged up by the really bitterly divided ideo--ideological factions that the clerks broke into.

Mr. LAZARUS: Yes.

Mr. LAZARUS: At the end of the year...

Mr. LAZARUS: At the end of the year, McBride worked for O'Connor and--and Bishop worked for Brennan. Every Thursday afternoon, it was--it was habit to have a happy hour at the court. That--that was not unusual. It was a chance to unwind a little bit. And they usually, at least in good weather, were--were--they'd take place in--in the beautiful flagstone courtyards with a fountain that--there are four of them at the court and--and they're just lovely. And this--this was at the end of our term, and--and it was just a symptom of--of the terrible divisions we were having. And the--the fact that they actually broke out into, you know, a shoving match was really just an emblem for how we really had felt about each other all year, which was that the liberals were an--were frustrated and enraged at what they saw as the conv--conservative ascendency. And I think this is--you know, we were mirroring the justices in this.

But as a general matter in the legal world, conservatives think of liberals as kind of weak sentimentalists, suckers for, you know, prisoners' rights and--and, you know, highfalutin concepts that--that really aren't very well grounded in the Constitution like the right to privacy. And on the other side, liberals have come to think of conservatives as eg--evil. I think that's what the Bork fight was all about, that they--they don't give a damn about civil rights and they want to roll the clock back 30 years. And--and they don't care about--about due process, etc., etc. And--and y--as--as I show in--in "Closed Chambers," this breakdown in the good faith that is necessary for a court to operate was just palpable my term.

Mr. LAZARUS: I really don't know enough about the current court to answer that--that question. And personal dislike is something that I think is very tough for a clerk to gauge. That's--we don't--we don't really see that sort of thing. What was going on here, whether it translated into personal dislike or not, were the kinds of accusations it's very difficult to recover from. I mean, if Justice Brennan accuses Justice Kennedy, as he virtually did, of being a racist, in--in one particular case, Patterson, which I discuss in--in the book--and--and the conservatives a--accused the liberals of basically being hypocritical idiots. You know, it's really hard if that happens over and over again to just let bygones be gy--bygones and pretend that, `Well, we all really get along.' These--these charges were--were heartfelt and--and--and so there were deep divisions.

Mr. LAZARUS: Sure.

Mr. LAZARUS: There are nine justices.

Mr. LAZARUS: They are appointed for life. And they are appointed by the president, confirmed by the Senate, and once they're confirmed, they can only be removed by impeachment.

Mr. LAZARUS: None of them have to be lawyers.

Mr. LAZARUS: Don't know the answer to that, to--to be honest. I'm--I'm sure, in the early days, the answer must be yes. But it's certainly been habit for a long, long time that they are lawyers.

Mr. LAZARUS: I don't know their exact salary, but they're paid on a typical government scale, and it--it's got to be--I mean, I--if I guessed $150,000, I don't--can't swear to it, but it's not a--a--it's--it's not a lot of money by the standards of what, of course, they would make if they were in the private sector.

Mr. LAZARUS: An oral argument--the--the way a case proceeds to the court--maybe I'll back up just a little bit. The first thing that happens is that a--that a petitioner asks the court to hear a--his or her case. And the court gets about 7,500 of those every year. Out of that 7,500, they might hear anywhere from 85 or so, at--at a minimum, to 150 my year.

And then what happens is they--they--once they're accepted, they brief the case. So they su--submit written--each side submits a-a written brief saying, `Here's why I think I ought to win.'

And then--and this is oral argument--each side gets one half-hour to present their case to the court. So they come up there, they stand in the well--it's--the--the courtroom is--is this gem of a--of a room, the justices up on their dais in their leather chairs and rocking back and forth. And they start out always with, `May it please the court,' and they make their half-hour presentation. And the justices, to a greater or lesser d--extent, depending on how interested they are in the case, will pepper them with questions.

Then after the oral argument is over, the justices retire and either later that day or later in the week, they meet together in their conference and they take a tentative vote. They side that wins, the majority, the senior member of that majority--so if the chief justice is in the majority, it's--it's the chief justice; if it's not the chief justice, someone else--assigns the majority opinion. And that's how it goes.

Mr. LAZARUS: As--as a court, I think it's--it's a conservative court. I--I don't think anyone can dispute that. It's a co--a court without a left wing, is real--is really what it is. I mean, Brennan and Blackmun and Marshall, who were the liberals, ar--are really gone. The two most liberal members of this court are both Republican appointees. And that's John Paul Stevens, who was a Ford appointee and certainly was thought of as a moderate when he was put on the court, and David Souter, who was nominated by President Bush and nobody knew much about him. He was thought to be conservative. But on this court, he's a--emerged as--on the liberal side, but--but I'd say it's a court with--with a center--a right of center and a right, but no left.

Mr. LAZARUS: Well, it's three days a week, two weeks each month for about six months. So I--I'd have to add that up, but it's--it's maybe 30 days.

Mr. LAZARUS: Yes.

Mr. LAZARUS: Well, I can speak for my own boss. He was there before we had breakfast every morning. I--I'm guessing he got in at 7:30. I know 'cause I got in just in time for the breakfast, so--but I know he was always there. And he would leave, oh, I would say, around 6:00 or 6:30 and he would take a huge stack of work home with him. He was at the court almost every Saturday. And he was probably working at home Sunday. I know I worked close to 100 hours a week. I bet the justice worked a--you know, not far from that.

Mr. LAZARUS: Well, what was I describing there is the fact that Justice Stevens is an extraordinarily bright and personal man--personable man. And what I was describing is the breakdown in the collegiality and in the discussion process within the court. And the problem with Justice Stevens, as I saw it, was that he spent a great deal of the winter in Florida, that--he has a--a home down there. And so he was really communicating to the court--I mean, I--I used the shorthand, by FedEx. But the point there was he was--he wasn't like a Brennan or a Marshall or a Blackmun who was really sort of alienated from these--the crucial members of the court and that's O'C--O'Connor and Kennedy. They're the swing votes. There wasn't a lot of influence that was going to be exerted on Kennedy and O'Connor by the left wing. They were just too--too alienated. And Justice Stevens, on the other hand, had the pure brain power and--and the--the sway. He--he had influence. But if he was in Florida, he couldn't exercise it in the same way that he could if he were at the court. And I felt that--that that was something--it was just alack. And it was--I--it was a regret that he wasn't there.

Mr. LAZARUS: Oh, I don't whether I could--you know, I don't know what their IQ scores are. I will say this that--that Justice Scalia is a enormously powerful in--in--intellect. And he has a very powerful writing style. And he's very sure of himself. And those factors combine to make him extraordinarily influential. He has a--a very steadfast view, although as I point out in the book, he--he's not always consistent. But--but he puts forward a powerful ideology, and he's--he's quick as can be. And--and that makes him very influential.

Mr. LAZARUS: A Ninogram--of course, he's--he's known as Nino someti--by--by those who know him. And he would send around these memos, zingers really, on--on cases where he would set forth his view in, you know, a page or two of extremely pungent prose. And at--at the court, if it's after hours, the--a--a clerk will walk to each of the nine chambers and slip a manila envelope under the door. That's the way they distribute this--these things. And--and I just remember those Ninograms w--would come, shhhwip, you know, slip right under the door. And--and there it would be, this very powerful, often h--hyperbolic analysis of the case. And that was a Ninogram. And--and, of course, if you were on the side that Justice Scalia was on, they--they were very welcome because they usually provided some very cogent thinking. But if--if you were on the other side, they were--they were darn infuriating.

Mr. LAZARUS: The Greenhouse Effect--that--that takes its name from--from Linda Greenhouse, who is The New York Times reporter who is generally thought to be liberal in her inclinations. And that was something that--I believe Terry Eastland coined the term, that conservatives felt that Justice Kennedy was excessively concerned with his public image, that he wanted, basically, for Linda Greenhouse to like him. And he--he was an apostate from conservative positions on a number of important issues. For example, school prayer--he--he was thought to be in favor of voluntary school prayer, and--and yet, in a crucial case, Lee vs. Weissman, he couldn't bring himself to overturn the Supreme Court precedents which prohibit voluntary school prayer. In--in a--in the area of abortion, he was thought to be in favor of overturning Roe vs. Wade and returning the issue of abortion to the states, but in Casey vs. Planned Parenthood of Pennsylvania, he--he and Justice O'Connor and Justice Souter banded together to uphold the basic principles of Roe, although they did cut back on Roe somewhat. And--and so the Greenhouse Effect was the idea that the--what lay behind these moderation--moderating forces in Kennedy's jurisprudence was not necessarily principle but a--a view that--that he wanted to be liked by the elite liberal press.

Mr. LAZARUS: Yes.

Mr. LAZARUS: Well, this was in--involved a case called Bowers vs. Hardwick, a 1986 case. It's a--it's a well-known case where the court ruled that Georgia could outlaw consensual acts of homosexual sodomy that were conducted within the--within a home. And the case raised a lot of the same issues that are raised in Roe vs. Wade, this idea of a constitutional right to privacy and whether--whether those kinds of consensual homosexual acts are protected. And Justice Powell, as he often was when he was on the court in--in the mid-'80s and early '80s, was going to be the swing vote on this issue.

And at--at conference and--and thereafter, he--he professed never to have met a gay person. And he had this exchange with his clerk about the--you know, sort of nature of--of homosexual arousal and--I mean, he--he just did not have any empathy for the point of view of--of the gay men involved in the case. And what--what I remarked on about that was there's a much stronger case to protect consensual acts of--of homosexual sex within a home under the right to privacy than there is to protect abortion under the same doctrine. And the reason for that is that it's in the home. And--and the co--and for years, the court has given kind of a special place to the home; that that's in violate against the--the probing eyes of the state. And yet, Justice Powell supports the ri--right to privacy in Roe vs. Wade, but com--becomes the crucial vote allowing Georgia to criminalize that kind of homosexual conduct.

Mr. LAZARUS: Yes. That's correct.

Mr. LAZARUS: Yes. John Jeffries is a--wrote the authorized biography of--of Justice Powell and who was a former Powell clerk and, yes, he--this--this clerk was himself gay.

Mr. LAZARUS: I--I can only guess, but it is in--in Jeffries' book about Powell, and I assume that he interviewed that clerk and that clerk related that conversation.

Mr. LAZARUS: I am surprised. And--and as--for example, my portrait of Justice Brennan is not the portrait that would be as favorable as the typical liberal would give. What I tried to do in this book was to step back from my own political point of view. It's true that I--I'm probably left of center on--on--on judicial issues. But the whole enterprise of the book was to step back, and--and what I've tried to describe in the book is that both sides are at fault for the civil war that we have in our legal culture and for the breakdown of the deliberative processes inside the court; that there's become this tit for tat between the liberals and conservatives. And so I--I really cast blame on both sides. And that footnote is just one example of where my--my views of something don't accord with the traditional liberal view.

And--and let me just expound on that for a second, if I might, which is the court is a political institution. It was designed to be. And the way it reflects politics is through the nomination process. We want our presidents--I--we elect them because we think that they have a certain set of beliefs. And we think that their appointments to the Supreme Court are going to reflect those beliefs. One of the problems we have is it's also Congress' or the Senate's responsibility to advise and consent to those appointments. And when you have a disagreement between i--ideologically, let's say, between a liberal Senate and a conservative president or vice versa, well, they have to reach some kind of compromise candidate and that's appropriate because the country is itself divided. But we shouldn't ex--you know, FDR put on like-minded people. Many other presidents have. So--sometimes they guessed wrong. For example, Nixon thought that my own former boss was a conservative when he's--he turned out to be much more moderate than--than Nixon might have thought. But there's nothing wrong with a president saying, `I want somebody who's going to agree with me up there on the court.'

Mr. LAZARUS: That depends on the chambers. There definitely is a certain amount of that where being a member of The Federalist Society, which is a conservative legal group, is very helpful in certain chambers. And at the same time, being a--a--a liberal is--was--was helpful in other chambers. And--and--but it's not--it's not a--a sharp ideological split in every chambers. For example, the chief justice, who, of course, is very, very conservative, he--he frequently will have a liberal in his chambers.

Mr. LAZARUS: Yes.

Mr. LAZARUS: Well, basically, if--if you have the right attitude towards clerking, you can do it because the job--your job as a clerk is not to, if you're doing it right, push your own political agenda on either of your bosses, whether it's Marshall or--or Kennedy. And--and, you know, Harry Litman was a superb clerk at the court, and one of the reasons he was so good is that Harry is a superb lawyer and he--he saw his job as basically being a counsel to the justice, and--and that means putting forward your best view of the law, maybe taking your best shot at what you think it ought to be also. But once the justice makes a decision, it's your job to step into his shoes and fulfill his mandate. And, you know, many, many liberal clerks will, for the experience, want to work for conservative justices and--and vice versa because it is just an irreplaceable experience. And I--I know that Harry asked Justice Marshall's permission before he did that.

Mr. LAZARUS: Well, I'm--I'm not really sure. I--I certainly never did when I was clerking. But th--I--that is--my understanding was that--that they were very upset with Kennedy and I--I don't know that Kennedy was pushing them. I mean, maybe--maybe not. I--I don't know exactly how that worked. But those--if I remember right, that--those cases involve jury strikes. They were cases involving whether, I believe, you could strike--for example, you could strike women from a jury without violating the Constitution or whether a--the defendant could object--I mean, whether the government could object if the defense started eliminating jurors for reasons of--of race or gender. And--and these kinds of cases were--Scalia hated the courts' rulings in those areas and I do understand that some of the clerks felt, `That's just not one I want to work on.' But I--I never experienced that when I was there.

Mr. LAZARUS: In dollar terms? I don't know exactly how much they make now. I believe we made just a little over $30,000 when I was there. It's, by the standard of lawyering, a modest sum.

Mr. LAZARUS: The--th--USA Today ran a demographic study of this which was surprising to me and--and a little bit disturbing. I think the--if I remember right, the statistics were that four of the justices had never had an African-American clerk, that the number of minority clerks was astonishingly low for Hispanics and Asians as well, that perhaps 25 percent--maybe a little less than 25 percent of the clerks were women, which, given the percentage of law school graduates from top law schools who are women now, is--is very low. I think there is a tendency to hire, you know, who you're most comfortable with and--and I think that's reflected in the numbers.

Mr. LAZARUS: I started thinking about this book after the Clarence Thomas hearings. "Closed Chambers" really emanated from--from two things. One was a real devotion to the institution of the court itself. I fell in love with the place when I was there. I, of course, had a high regard for it before I was there. But at the same time, I was quite dismayed by some of the things that--that I saw there. And one of the cases I start out with may capture a bit of--of what I'm talking about. This was a death penalty case where Justice O'Connor was recused, so there were only eight justices participating. It's called Tompkins vs. Texas.

Mr. LAZARUS: To be recused means that she was--stepped out of the case because perhaps she had a personal conflict of interest. I--I don't know--you know, they don't have to publish the reason. I think that her husband's law firm was handling the case pro bono for the death row inmate and that may have been the reason, but--but it's not something that is published on the record.

Now this was a case of a black man on--on trial for his life in Texas for a--a--a--a terrible crime. He had abducted a woman very late at night and gagged her and tied her to a tree while he used her bank card to ro--to--to rob her teller machine. And--but we knew two things about this case, or those of us who worked on it were pretty--pretty sure about two things in this case. One was that the prosecutor had eliminated all the blacks from this black man's jury on purpose.

Mr. LAZARUS: Tompkins. So Tompkins' jury was an all-white jury and the blacks on the jury had been systematically eliminated. And the second thing we knew, because there had been a confession in the case that had been suppressed at trial but that we saw, was that there was a very, very, very strong likelihood that this man had not done this crime on purpose. The woman had choked on the gag, a horrible, horrible death. But Tompkins carried a knife. If he wanted to kill her, he could've done it very easily. In his confession, this man was--was borderline mental retardate.

His--his--his confession rang true, and that was he just meant to tie her up while he used the bank card and then she would be discovered. And you're not supposed to get the death penalty either if blacks have been eliminated from your jury or if you didn't kill intentionally. That's the Constitution. And--and yet, this seemingly easy case, the justices deadlocked, 4-to-4, which meant that the lower-court decision stood and the lower-court decision was allowing this man to proceed to execution.

And I just shook my head at this case. I did not--could not understand how, in good faith, these eight justices reached a 4-to-4 deadlock on this case. And so part of the enterprise of the book was to say, `OK. We got into a terrible spot here where the decisions were so reflexive that this man was--was basically flushed through the system. How did that happen?' And so I went back and through five years of research and reporting I tried to describe how we got into this terrible predicament of--of splitting apart ideologically within the court so deeply that a 4-4 outcome was possible in a case like that.

Mr. LAZARUS: Right.

Mr. LAZARUS: Well, I think they are a little bit. I mean, after all, Justice Kennedy invited a reporter to follow him around the morning that he handed down Casey vs. Planned Parenthood of Southeastern Pennsylvania. You have to wonder why if the j--if the media doesn't matter. So, yes, I think there's some influence. The marches on the court, we take--people take note of them. But it's not a huge influence.

Mr. LAZARUS: I think it has a varying effect in different chambers. I know Justice Blackmun read all of his mail because he felt this is the people's court and he wanted to know how the people felt about the court's decisions. That's not to say that it affected him like a popularity poll would, but he wanted to have a feeling for what the people were thinking.

Mr. LAZARUS: Not much. I don't think that--that that has an effect, and I think there's almost a resentment because it's not supposed to have an effect.

Mr. LAZARUS: That's one of those legal words like voir dire, where I think anything goes. But that--those briefs are friends of the court briefs. They come from outside--not parties to the case, but interested parties who then submit briefs. They can have an enormous effect, particularly if it's an expert group like a group of doctors in an abortion case or, you know, media interests in a First Amendment case or--specialists in the field can often have a very great effect through these amicus briefs.

Mr. LAZARUS: I don't think it's a question of a term of years, in particular. I mean, Justice Thomas, of course, got onto the court in his 40s. So it's--it's not a--a set term. But I--I do think that although we speak in terms of life tenure for the justices, that doesn't mean that they have to serve for life.

Mr. LAZARUS: Well, I wish some of them would do more, but I think the--the experienced advocates probably moot their cases two or three times before they get up there. I know the solicitor general, Se--Seth Waxman, has said that he has two moots before every argument. And a moot is where he'll have a group of colleagues prepare for the case and pretend that they're the justices and hammer him with as tough a question as they can think of.

Mr. LAZARUS: I think they can matter. I think that they're not only--you know, justices can ask the lawyers to answer some nagging question they have about the case, but I think the justices themselves seek to educate one another on the bench. I think that in oral argument Scalia is trying to get to Kennedy and O'Connor and--and--you know, and say, `This is how I'm thinking about the case and you've gotta be able to answer this if you want to come out the other way.'

Mr. LAZARUS: Well, they had an enormous impact on my book because this was--the Thurgood Marshall papers, which are in the Library of Congress, open to--to everyone. These contain all of these internal drafts, the memoranda that circulate among the justices...

Mr. LAZARUS: The Ninograms, absolutely. All of that is in there. It's a tremendous resource for anyone interested in the court and it was opened up shortly after--well, immediately upon Thurgood Marshall's death, which was just a few years after he retired from the court.

Mr. LAZARUS: Because the--the way they were given to the Library of Congress was, `These should be opened upon my death.' Perhaps Justice Marshall thought that he was going to live a number of more years, but this wa--this was the way he deeded those papers.

Mr. LAZARUS: I spent dozens and dozens and dozens of hours.

Mr. LAZARUS: Yes.

Mr. LAZARUS: Right. You just--there's an index there. You can determine what boxes you want to look through. They'll bring you the boxes. You can photocopy what you want. And so anyone interested in the court can go there and see all the internal workings of the court.

Mr. LAZARUS: Yes. It's an old document but one that I had never heard of, which was when Justice Douglas, very late in his time on the court, had had a stroke and was--but was trying to hang on desperately to his seat as a justice. The ju--the other justices banded together and agreed in a signed document that if any case came down to 4-4, where Justice Douglas' vote was crucial, they'd move it on to the next term and reargue it. So they basically neutralized Douglas' vote in an internal agreement. And that paper was there in the Marshall papers.

Mr. LAZARUS: Webster vs. Reproductive Health Services was a referendum on Roe vs. Wade in 1989.

Mr. LAZARUS: It came out as a mishmash. The chief justice, joined with--with three others, said that--not that Roe was overturned but that a lot more abortion regulation was permissible. The liberals on the other side were saying Roe is what Roe has always been, very little regulation allowed, and O'Connor in the middle basically dodging all the issues.

Mr. LAZARUS: Like any journalist. Years after I left the court, I discovered that things had happened I didn't have any idea about when I was there and that there was documentary evidence to back it up. And I pursued that documentary evidence.

Mr. LAZARUS: What I found was--is that the conservative group at the court was caucusing behind the backs of the liberals trying to reach some agreement before they would circulate anything to the liberals. And in that caucus, the chief circulated a draft that he was hoping everyone would sign on to and Justice O'Connor wouldn't sign on. The other thing that was discovered is that Justice Kennedy actually wanted at that time for Roe vs. Wade to be overturned. He later changed his mind.

Mr. LAZARUS: I had never seen anything like that in a liberal chambers, although in the Patterson case, which was a civil rights case that term, there are some internal liberal circulations that are in the Marshall papers that--that I did not know about.

Mr. LAZARUS: Yes. That was--that was my judgment. It was also the judgement of--of Justice Stevens, who said he was trying to drop Roe off the back of a fast-moving train or something to that effect. What had happened in that case is the chief circulated a draft which, in its terms, claimed that Roe still stood. But because of the way it was written, in terms of the technical, legal wording of it, would have just torn the entire guts of Roe out. And so, right, I--I felt that that was a very surreptitious and inappropriate way to try and do away with the most important case of the last 25 years whatever one thought of Roe vs. Wade.

Mr. LAZARUS: Not--not much personal contact. You get to have lunch with--with the chief as a--the Blackmun chambers went--took him to lunch and, of course, you'd see him around and--and whatnot. But my complaint with the chief justice throughout the book is that he does not believe in deliberation and debate. He doesn't think people's minds get changed. And I think that that's fundamentally at odds with the way the court ought to operate.

Mr. LAZARUS: Mm-hmm.

Mr. LAZARUS: It's held in a room that's sort of in his suite of offices.

Mr. LAZARUS: Yes, I do, right.

Mr. LAZARUS: Only the justices themselves.

Mr. LAZARUS: Correct. And the junior justice shuts the door against the outside world.

Mr. LAZARUS: I think that they, at one time, sat by seniority, but it may have been--it may not be strictly so. There may be justices who want to stay in their spot or whatever.

Mr. LAZARUS: M--my sense of it w--was, and as I write in the book, is that--that the--the debates--the--the conferences during--during that time were basically an expression of views, not a debate. You'd go around the table, each justice would say what he or she thought, there would be a vote, and that would be it. And Justice Scalia has publicly spoken about this, that--that there is not an exchange of views and that people's minds do not get changed in conference. And it seems to me that that adds to this atmosphere of division when you're not really trying to engage the other side seriously and say--you know, there are good points to be made on both sides and they need to be taken account of and the court--the court wasn't doing that.

Mr. LAZARUS: Not nearly long enough. Maybe--maybe only half an hour or so.

Mr. LAZARUS: Oh, yes, you can change your vote, but part of the problem is that the way the--the--even--even after opinions got drafted, there was far too little debate and discussion. It wasn't like an opinion came around and there was a--a whole hullabaloo over its details. There was a strong tendency, and you can see this in the Marshall papers 'cause you can see the dates when people sign on--an opinion come around, and within a day or two, everybody on that side would've signed on. The dissent comes around months later. It's already a fait accompli. There's no real engagement on the crucial issues.

Mr. LAZARUS: To the draft opinions? Well, they--those...

Mr. LAZARUS: Mm-hmm.

Mr. LAZARUS: Oh, yes, 'cause these drafts are coming around and--and you--everyone in the chambers sees those.

Mr. LAZARUS: Well, I think because people take their responsibility extremely seriously, that if--if you had a leak--I mean, the 10th justice of this novel is about such a leak--it could change investment policy depend--if it were a business case, hundreds of millions of dollars could be at stake. You know, it's--it's absolutely essential that during the court's deliberations nobody know, and people at the court take that very, very seriously. It's a very small community and people understand that. It's happened. There have been leaks but really very few.

Mr. LAZARUS: I saw her a--a bit more than I saw the chief. A very brave woman. She was ill our year with breast cancer, as--as people know, and I--I just was admiring of--of her fortitude. I'm not a huge fan of her jurisprudence, which I think is very idiosyncratic. She holds that center position at the court and so often her views really just come down to what she thinks about a case. And--and I think that holds the Constitution hostage to her own personal views.

Mr. LAZARUS: Well, that was in the Webster case sh--when she did not join Chief Justice Rehnquist in--in cutting back sharply on Roe. Basically, Justice Scalia let her have it with both guns, and--and some of what Justice Scalia said was warranted because, in that case, Justice O'Connor's whole opinion was based on the idea of judicial restraint, `We won't ever step outside the narrow confines of a case to speak to an issue more broadly.' And as Justice Scalia pointed out, when it suits her, Justice O'Connor does that with some frequency. And one of the things I complain about in my book is if you're going to be a person of judicial restraint, you have to be--be that way when it suits your personal views and when it doesn't suit your personal views. You can't flip 'em around like cards in a deck.

Mr. LAZARUS: Well, you can read his opinions. I think that there's--there's rarely been a justice who so regularly takes after his colleagues in--with the tone of disapproval that--that Justice Scalia has in his opinions.

Mr. LAZARUS: No, I--I don't know. I--I think that he is someone who cherishes the turn of the phrase, where he can--he--he does have the ability in print to write things that--that just skewer people. And he's very effective at it and--and he seems to enjoy doing it.

Mr. LAZARUS: Get into other people's e-mails? No, I don't think so.

Mr. LAZARUS: Well, there was--there was certainly e-mailing back and forth about lots of things from, `Where are we gonna go to dinner tonight?' to--to more substantive matters.

Mr. LAZARUS: Yes. Well...

Mr. LAZARUS: Well, he has a particular way, or--or did when he was sitting on the court, of empathizing with individual defendants or--or petitioners who came before the court. And there was a famous case my year involving a--a little boy who--who had been beaten severely and he began his opinion, `Poor Joshua.' Now I don't think there's ever been a justice--maybe there has, I've never done a lexis search--who had that kind of individualized feeling for the parties to the cases.

Mr. LAZARUS: Oh, yes, sure. I mean, he's--he's like anyone else. He gets angry...

Mr. LAZARUS: You know, like--like--it's a human institution, and--and I think every justice, the--the emotions run the gamut. And Justice Blackmun is someone who--you know, he--he ran the gamut from--from sheer joy to--to frustration and anger like anyone else.

Mr. LAZARUS: I think we will. I think it's inevitable that it will come. But the justices certainly stand firmly against it. I--I can't for the life of me understand why it's not appropriate to televise those or--oral arguments.

Mr. LAZARUS: I think some. I think that--that the fact that he did not come across well on television may have struck them as, `Hey, how am I gonna come across on--on television?' But I--I think the effect of the Bork hearings was--was much broader than that, which is that this kind of political campaigning about whether somebody's going to get on the court or not was, I think, in the view of the court, unseemly and damaging.

Mr. LAZARUS: Yes.

Mr. LAZARUS: Well, the--the fact that the liberals were willing to go to almost any length to stop him. And that is taking jurisprudential positions that--that really don't hold up very well to the kind of--taking all the nuo--nuance out of Judge Bork's position so that he was caricatured. And I think it basically taught the conservatives that the liberals would go to any lengths to protect themselves. And as a consequence, I think conservatives felt, `We're gonna fight fire with fire.'

Mr. LAZARUS: Oh, no, with Jus--Justice Thomas, you meant.

Mr. LAZARUS: Yeah. Do I? No, but I--but I think--that was--you know, there's been a--there was a lot of vague talk in the liberal press about how, oh, he had lied about n--not only the--the Anita Hill situation, but that he had also lied when he said that he had never discussed Roe vs. Wade during law school, whi--I guess it was handed down when he was in law school. And, I mean, I--I think that--that throwing around charges like, you know, he's a felon is--is--is reckless.

Mr. LAZARUS: Well, I w--I guess I--what I would change would be the entire deliberative atmosphere, and I think perhaps it is changing a bit for the better--I mean, because there are four new justices since the time I left. Those justices--Ginsburg, for example, Breyer, Souter--are people with a very strong sense of the institution itself. I think I would infuse the place with a greater feeling of self-doubt, that, you know, `Hey, maybe--maybe I'm wrong in what I think. I want to think about what the other side has to say.' Foster more debate and--so the ma--basic thing I would change would be in the souls of the justices. They'd just have to do a better job.

Mr. LAZARUS: Well, I think, for example, that most people would think that these--in the death penalty cases there's a kind of, you know, meticulous evaluation of every case before someone's put to death. That just doesn't happen. I think that--that the--there's a kind of idealized image of this Mt. Olympus. It's a human place and we need to think carefully about whether it's doing its--its constitutional job in the way we want it to.

Mr. LAZARUS: No. I--I don't know that it's an actual photograph of anything, but it--it seemed to me to be a--a justice contemplating the world in isolation and I think that--that there's a lot of that that goes on.

Mr. LAZARUS: I'm--I'm surprised that s--people are so concerned about the issue of whether the book ought to have been written as opposed to what's really in the book. I don't think that there can be a question about whether a serious book, looking at the way the court handles these crucial issues, really, you know, is an appropriate thing to have done. It--it--it has to be. And--and--and people need to think hard about the processes inside the court. So I'm a little surprised that there's so much hoopla. But one reason there is, is that I think by being so critical I've stirred up a lot of interest.

Mr. LAZARUS: Oh, that's my wife, Amanda Muss, who stood by me for every day I worked on this project.

Mr. LAZARUS: I do not.

Mr. LAZARUS: Oh, I expect to be a prosecutor for a while. It's a magnificent job. There is nothing so satisfying as walking into court and saying, `My name is Edward Lazarus and I represent the United States.'

Mr. LAZARUS: Thank you very much for having me in.