Justice Blackmun’s File on Smith v. Maryland

Smith v. Maryland and the third-party doctrine have been much in the news recently thanks to the dueling Leon/Pauley NSA opinions. In light of that, law prof Kyle Graham has posted Smith-related materials from Justice Blackmun’s papers at the Library of Congress. You can read them here. The documents include conference notes, the cert pool memo, the law clerk’s bench memo, and some internal memoranda about the opinion.

Blackmun’s law clerk on the case — the clerk who actually wrote the opinion, given how Justice Blackmun apparently worked — was Albert G. Lauber, now a tax court judge. Lauber’s bench memo to Blackmun is fascinating. It not only tracks the majority opinion, as you might expect, but in some ways it offers a clearer explanation and better justification of the reasoning of Smith than did the opinion itself. Really interesting stuff. (The cert pool memo writer in the case was a Rehnquist clerk, the late Judge Mark Kravitz.)

As I have written before, I think Smith v. Maryland was correctly decided. You can read my argument here and here in law review article form. If you want the short version, check out this 2012 debate between Greg Nojeim and me.