Reflections on Almost a Decade of Writing for Writ - and on Some of the Key Legal Reforms For Which I Have Advocated In This Space
By EDWARD LAZARUS
|Friday, April 24, 2009|
This will be my last column, at least for the foreseeable future, as a regular FindLaw columnist. It has been an extraordinary privilege to have been given the license, every other Thursday, to reflect publicly on the legal issues of the day, great and small. And I am indebted both to the publishers of Writ, past and present, for vesting this trust in me and to the readers – supportive, critical, or simply observant – who honored me by considering my thoughts
In my columns, now numbering somewhere around two hundred, I returned to certain themes many times over. In so doing, I surely ran some risk of redundancy. The emphases, however, reflect the three formative political episodes of my life: first, Watergate and the demise of Richard Nixon (which I took in as a teenager); second, the Reagan Revolution and the rise of the Rehnquist Court (where I served as a law clerk); and third, the wild constitutional gyrations that began with the impeachment of President Clinton, ran through Bush v. Gore, and ended with President Bush’s claims to extraordinary and unreviewable Executive authority.
Against this historical backdrop, I developed a passionate belief that the fundamental challenge of this political era is this: How can we reconcile our felt need for a strong yet trustworthy federal government with a contemporary political culture that has eaten away at the integrity of our governmental institutions?
My particular focus, of course, has been the Supreme Court of the United States, which, in the last several decades, has staggered through a crisis in its decisional culture. Long before Bush v. Gore, the Rehnquist Court had succumbed to an ugly, deeply political internal splintering, which resulted far often in hugely important decisions that were based more on the naked power calculus of five-votes-beats-four than on genuinely persuasive legal reasoning.
Exploring this phenomenon, I have written many times on the vital importance of improving the deliberative process inside the Court, demanding greater intellectual integrity from the Justices, considering structural reform for the institution and, not least, lowering our expectation, born of the Warren era, that the judicial branch will (or should) somehow serve as the progressive moral beacon for society.
Beyond the confines of the Court, I have advocated for procedural reforms – from campaign finance reform, to policing political gerrymandering – that are aimed at improving the quality of democratic debate. And I’ve spoken about creating a new jurisprudence of openness and accountability under a “trust but verify” approach to the big government that we urgently need to help solve the nation’s social and economic ills.
It is one thing, though, to write about notions of good governance, and quite another to be a constructive part of government. I’ve long had the ambition to take a turn at the wheel, and may be fortunate enough to have that opportunity now. Enough said, except in closing I would like to thank Julie Hilden, my fellow FindLaw columnist, who has served as my editor, and who has improved every single one of my columns.
Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.