May 31, 2005
BRENNAN'S BOYS:
When Court Clerks Rule (David J. Garrow, May 29, 2005, LA Times)
The recent release of Justice Harry A. Blackmun's private Supreme Court case files has starkly illuminated an embarrassing problem that previously was discussed only in whispers among court insiders and aficionados: the degree to which young law clerks, most of them just two years out of law school, make extensive, highly substantive and arguably inappropriate contributions to the decisions issued in their bosses' names.Even Roe vs. Wade, Blackmun's most famous decision, which legalized abortion nationwide in 1973, owed lots of its language and much of its breadth to his clerks and the clerks of other justices. A decade later, when Blackmun's defense of abortion rights shifted from an emphasis upon doctors' medical prerogatives to women's equality, it was his young clerks who were responsible for his increasingly feminist tone.
Blackmun's files, which span his tenure on the court from 1970 to 1994, also show that in some cases over the years, clerks introduced explicitly partisan political considerations into the court's work (once urging that an abortion ruling be issued before a presidential election, so that women could "vote their outrage" if Roe vs. Wade was reversed). Sometimes clerks' unrestrained ideological biases were starkly evident (as when one referred to Justice Antonin Scalia as "evil Nino" in a memo).
According to "Becoming Justice Blackmun," a new book by New York Times Supreme Court correspondent Linda Greenhouse, even Blackmun's most well-known line — "From this day forward, I no longer shall tinker with the machinery of death" — was not his own. That 1994 dissent denouncing capital punishment was proposed by one clerk and written by a second. Blackmun accepted virtually every word of the clerk's draft.
Bob Woodward revealed all this years ago in The Brethren, which makes a laughingstock of Blackmun. Posted by Orrin Judd at May 31, 2005 9:13 PM
One of the great stories in The Brethern is about Blackmun's opinion in the Curt Flood case. Blackmun starts the opinion with a tribute to the history of baseball and provides a long list of names from the game's hallowed past. To jerk his chain, Thurgood Marshall sent him a memo complaining that he hadn't named any Negro League players. Taking Marshall seriously, Blackmun added Campanella and Paige. I also remember that, for some reason, included in the list of greats was Moe Berg, who although a genius was certainly an undistinguished player. Maybe it was a sop to a Jewish law clerk.
Posted by: Foos at May 31, 2005 10:29 PMWe have to realize that with rare exceptions, such as Scalia, USSC justices are politicians. When you see an op-ed in the newspaper with a politician's name on it, the odds are at least 10-1 against his having written it. Political aides routinely write newspaper articles, speeches, and yes, court deicsions for their bosses.
Posted by: Nicholas Stix at May 31, 2005 10:35 PMSo which was Blackmun, a ventriloquist's dummy or a sock puppet?
Posted by: Raoul Ortega at May 31, 2005 10:36 PMThis helps explain why Blackmun's opinion in Roe amounted to a thinly-veiled anti-Catholic polemic. The thrust of the opinion seems to be that abortion had always been just peachy up until about 1870. The whole thing always had a sort of far-out drift, a sort of SDS or feminist fringe tract.
Posted by: Lou GOts at June 1, 2005 5:04 AMWhen you see an op-ed in the newspaper with a politician's name on it, the odds are at least 10-1 against his having written it. Political aides routinely write newspaper articles, speeches, and yes, court deicsions for their bosses.
I was a judicial clerk for two years. While it's true that I drafted opinions for my judge, they were drafted to the judge's specification, and he always gave me a list of key points and phrases to work in. There was never any question between us that if we disagreed on something, he won the argument and got to make the decision.
I suspect the problem with Blackmun was that the clerks were telling him what to do, not the other way round.
Posted by: Mike Morley at June 1, 2005 6:04 AMHuh, Surely he included Greenburg and Koufax. That's easy.
Makes no difference really who writes the opinion, as long as the Justice is able to read it and correct it if necessary. In the Roe v Wade case for instance, there has been 30 years gone by and I don't think anyone has improved on the justification for the ruling. Because it wasn't justifiable then or now.
Posted by: h-man at June 1, 2005 7:36 AM
Although the argument Lou points out -- that abortion isn't really immoral because, look, it was accepted until the mid-19th century -- is particularly weak. First, it's bad history. Second, how can you possibly write that, or review it, without immediately thinking about the other widely accepted practice that was stamped out in the mid-19th century?
Posted by: David Cohen at June 1, 2005 8:20 AMhow can you possibly write that... without immediately thinking about the other widely accepted practice that was stamped out in the mid-19th century?
David, that's different. Oops, I mean Different ™. Please don't ask how, though--everybody just knows this. :-(
Posted by: Kirk Parker at June 1, 2005 11:42 AMThis is what happens when you make the court a geriatric ward.
Posted by: Robert Schwartz at June 1, 2005 4:57 PM"From this day forward, I no longer shall tinker with the machinery of death."
"I"?
The Constitution begins with "We" and mentions capital punishment several times.
Everything that's wrong with modern jurisprudence is contained in that "I".
Posted by: Noel at June 1, 2005 10:24 PM