At least that's the picture given in Edward Lazarus's controversial 1998 book, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Lazarus served as a Supreme Court clerk in the 1988-9 term for Justice Blackmun, who famously authored Roe v. Wade in 1973. Clerking for the Supreme Court is tremendous, prestigious, competitive--during the year, a clerk works closely with his or her justice, recommending which cases should be reviewed (since the Supreme Court doesn't review all cases appealed to it), advising the justice on the legal reasoning to be used in a specific case, and oftentimes even writing parts of Supreme Court opinions (both majorities and dissents). The clerk plays a host of different roles: adviser, student, defender, helper, even friend.
As the Court is famously veiled in secrecy--cases, even those potentially altering the course of our constitutional rights, are deliberated behind closed doors--the clerk is, for his or her year, similarly bound to the code. So Lazarus's 540-page tome, which weaves memoir (of his term at the court) with historical analysis (of watershed cases in the controversial areas of affirmative action, abortion, the death penalty) was seen initially as a rude betrayal. Frankly, nothing in it seemed particularly stunning or salacious (I mean, certainly not compared to the gossipy, schadenfreude-laced Game Change, which I am embarrassed to admit I bought on my Kindle.) I learned that clerks have a scarily powerful role at times (and depending on the justice): their representation--fair or unfair--of a case to their justice can often literally determine the difference between life and death. As the court of last resort, the Supreme Court has the final word on death sentences issued nationwide: Lazarus describes the chilling process of waiting for the justices' votes on death penalty cases, votes which clerks would relay to the jails, where men--sometimes innocent, sometimes guilty--would be waiting, hoping, for a last-minute reprieve from the highest court in the land as they were strapped into the chair.
For an abolitionist (which I am), reading Lazarus's detailed account of the death penalty's rollercoaster history on the Court--including an eight-year period in the 1970s in which it was outlawed altogether before being reinstated--is heart-wrenching. In one case, Warren McCleskey, accused of murder, challenged his sentence on racial grounds: a study had found that suspects in crimes in which the victim was white were four times as likely to get the death penalty as suspects in crimes in which the victim was black. Nevertheless, a majority found that even in light of this huge disparity, the statistical evidence wasn't quite convincing enough to warrant a retrial. In another case Lazarus mentions, the defense attorney was late by two days filing a petition to stay his client's death sentence; he petitioned the Supreme Court at any rate, figuring they would overlook the comparatively minor clerical error in light of the gravity of the situation. They didn't; writing for the majority, O'Connor began her opinion pompously, "This is a case about federalism..."
The bizarreness and caprice with which death penalty cases are treated in the courts is really best summed up by this observation of Norman Mailer's, quoted by Lazarus: "Capital punishment is to the rest of all law as surrealism is to realism. It destroys the logic of the profession." Yet there are many surreal moments in other areas of Court history. There's the shuffle-dance the Court does around the abortion issue before three Republican nominees ultimately voted to uphold its central holding in 1993. There's the unsuccessful nomination fight of Robert Bork, a brilliant radical conservative with zero people skills and a very long paper trail that eventually proved his undoing. (Or maybe it could have been Bork's innate creepiness. Two friends of mine who were roommates used to play a game called "Hide the Bork," in which they would tuck Bork's Slouching Towards Gomorrah, the cover of which features Bork's exceedingly creepy, goateed visage, in various corners of the room to scare the other roommate.) There's the successful, but scandal-plagued, nomination fight of Clarence Thomas. And, of course, there's the absolute circus of Bush v. Gore.
These are all covered in Lazarus's occasionally long-winded--but still engaging--primer on the modern court. (If you are looking for a quicker modern Supreme Court read, I'd suggest Jeffrey Toobin's The Nine--Closed Chambers is much more academic, more detailed, and less recent.) Ultimately, the hero of Lazarus's book is thoughtful, rational, consensus-building jurisprudence; the antagonist is the hyperpolitical, results-driven process that has overtaken the modern court. Lazarus ultimately presents a fiercely-divided, two-wing court whose members do not resemble Captain Planet's elements so much as they do a pair of substances that can never seem to get along: oil and water.
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