Closed Chambers

By Edward Lazarus

The judiciary plays a crucial role in both the American and Canadian systems of federal government. As independent interpreters of the nation’s laws – including its supreme laws, the Constitution – they preside over the administration of justice, shape public policy, and defend individual rights and freedoms.

That is the theory. In practice, our courts often fall short of the ideal.

In this fascinating and groundbreaking book, Edward Lazarus provides the first eyewitness account of the personal and political power struggles within the U. S. Supreme Court over the past half-century. The story Lazarus tells has two main acts: The “Rights Revolution” of the radically liberal Warren court, followed by the conservative reaction of the present court, headed by William Rehnquist.

Lazarus describes the defining legal debates (over the death penalty, race, and abortion) with skill, presenting a number of difficult legal issues in lay terms. Although he is an unashamed liberal (he clerked for the Supreme Court under Harry Blackmun in 1988), he is scrupulously fair in his judgments. He frankly blames liberal icons such as Justices Brennan and Marshall for a narrow-mindedness that inspired much of the wrath to come. He also questions the power of the clerks to shape law, especially in their writing of draft opinions.

According to Lazarus, the main problem with the present court is its ideological polarization. The judges do not not engage in meaningful debate, but simply interpret the law in any way that furthers their own political agendas. As a result, the court becomes a forum for the mere exercise of power and loses its integrity. This raises an issue that is potentially devastating to a society based on the rule of law: “If law is no more than power, no more than five votes supported by doctrines of convenience, why should we obey?”

I have to admit, this is a book I have been waiting to read for a long time. It is very rare to hear a clerk of any court speak out in this way and raise these kinds of issues. Lazarus is also an excellent (if dry) writer, blending personal observations with historical awareness and precise legal analysis. Few books in recent years have given as clear a picture of America in the 20th century – where it has been, where it is, and where it is heading.

Review first published April 25, 1998.


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