THE END OF A GAG ORDER

A FORMER US SUPREME COURT CLERK BREAKS A TABOO AND TELLS A FEW UNFLATTERING TALES OUT OF CHAMBERS

Author: By Evan Fray-Witzer

Date: SUNDAY, April 19, 1998

Page: N1

Section: Books

Although clerkships last for only one or two years, they are highly coveted positions. A clerkship offers an unprecedented chance to watch the court in action -- to see the best (and worst) that the legal profession has to offer, to witness firsthand the full range of human drama that plays out in our courts every day, to delve deeper into the law and its nuances. Most important, though, a clerkship provides the unique opportunity to work closely with one or more judges, to share in the judge's thought process and deliberations, and to act as both sounding board and confidant.

There is an unwritten rule that goes hand-in-hand with this relationship: You don't tell tales out of school. US Supreme Court Justice Harlan Stone once wrote in a memo to his law clerks that ``Washington is infested with a cheap class of newspaper hangers-on who at times have cultivated the law clerks of the justices and picked up scraps of conversations or remarks which are harmless enough in themselves, but which, when distorted and published, tend to discredit the Court or its members in public estimation.''

If the publication 20 years ago of Bob Woodward and Scott Armstrong's ``The Brethren'' made Justice Stone turn in his grave, the publication of Edward Lazarus's ``Closed Chambers'' will likely have him spinning. It is, after all, one thing when someone from the ``cheap class of newspaper hangers-on'' writes a book; it is another thing entirely when the author is a former Supreme Court law clerk.

And Lazarus -- who clerked for Justice Harry Blackmun during the court's 1988-1989 term -- takes no prisoners. He tells tales and he names names. The story he tells is of a bitterly divided, indeed hostile, court where justices and law clerks, split along political and ideological lines, conspire and plot against one other. The court is apparently the setting for a modern-day ``West Side Story'' with the ``Cabal'' and the ``Dreaded Libs'' replacing the Jets and the Sharks.

According to Lazarus, Cabal members came to the court having spent years at liberal law schools where their opinions were often dismissed and ridiculed. They are aching for revenge and giddy with the knowledge that -- given the court's conservative makeup -- they can win virtually every battle they fight. Cabal member Andrew McBride (law clerk to Justice Sandra Day O'Connor), for example, issues the following e-mail battle cry: ``Every time I draw blood I'll think of what they did to Robert Bork.'' Other Cabal members hail each successful end to death-penalty appeals, and celebrate the execution of Ted Bundy with a champagne toast.

Nor do the Dreaded Libs fare much better in Lazarus's storytelling. Consider, for example, the liberal clerks who considered (but ultimately abandoned) a plan to have a female clerk fake an unintended pregnancy in an attempt to elicit O'Connor's sympathy and support for abortion rights. Or stories that Justice Thurgood Marshall was so incapacitated toward the end of his tenure that his clerks did everything for him but vote at the justices' conference.

Although no one escapes ``Closed Chambers'' unscathed, Chief Justice William Rehnquist emerges as the lead villain. Lazarus uses memos written by Rehnquist when he was himself a law clerk to Justice Robert Jackson, in 1952-'53, to paint Rehnquist as an unrelenting ideologue. In urging Jackson to vote against desegregating public schools in the landmark case Brown v. Board of Education, for example, Rehnquist wrote that ``it is about time that the Court faced the fact that the white people [in] the South don't like the colored people.'' In urging Jackson to reject a stay of execution for Julius and Ethel Rosenberg, who had been convicted of spying for the Soviets, Rehnquist opined that it was ``too bad that drawing and quartering has been abolished.''

Lazarus's ultimate conclusion is that the court is broken, having long since devolved into warring camps where brute ideological force is revered over reason. (Five of the nine justices from Lazarus's term -- Rehnquist, O'Connor, Antonin Scalia, Anthony M. Kennedy, and John Paul Stevens -- remain on the court.) He describes the justices, both liberal and conservative, as resorting ``to transparently deceitful and hypocritical arguments and factual distortions as they discard judicial philosophy and consistent interpretation in favor of bottom line results.''

Suffice it to say that ``Closed Chambers'' will win Lazarus few friends. After the publication of ``The Brethren,'' the clerks who had spoken to Woodward and Armstrong were cast as traitors to their justices. It hardly seems a coincidence that the only justice who actually praised the book was Lazarus's boss, Blackmun.

Is ``Closed Chambers'' the son of ``The Brethren''? Yes and no. The resemblance is certainly there but in the family ``Brethren'' got the good looks and charm, while ``Chambers'' got the brains. Although Lazarus sprinkles his narrative with insider stories and observations, the book as a whole takes a much more scholarly look at the Supreme Court and its decisions over the past 20 years. It is impeccably researched and impressively documented. The result is a somewhat denser, less gossipy book -- one that will fascinate diehard court-watchers but, at 500-plus pages, could prove slow going for the less devoted.