Blackmun a Clerk to His Clerks.--
David Garrow’s long-awaited analysis of Justice Blackmun’s papers is finally up on Legal Affairs. It seems fair, insightful, and scathing. It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable. Further, things got worse in his last few terms (term limits, anyone?). Garrow depicts how Blackmun sometimes served as little more than a cite-checker of his clerks' work—a division of labor that effectively made the judge a clerk to his own clerks.
Some excerpts from Garrow on the role of clerks in Blackmun’s chambers:
[Clerk Michelle] Alexander gave Blackmun a note that read, "This morning at breakfast you mentioned that you would like to release the death penalty dissent by the end of the calendar year. I think that is wise," because several pending cases offered appropriate opportunities. In particular, "there is little chance that a better vehicle for your dissent will come along before the end of the year" than Schlup v. Delo, an "extraordinary" capital case. In closing, she stated, "I would love to hear your thoughts."
Schlup was postponed, however, and Alexander reported that she had reviewed all petitioners with scheduled execution dates. "I recommend that you plan to release your dissent when Malcolm Rent Johnson is executed on January 31," she wrote. Alexander once again concluded her note by saying, "I'd love to hear your thoughts." One week later, with Johnson's execution indefinitely delayed, Alexander advised that "[i]nstead of searching for the ideal vehicle for the dissent, the dissent should be tailored for any death case," so that it simply could be issued whenever the next execution occurred. Two days later, she told Blackmun that she had revised the existing draft to remove the Gary Graham references, but explained, "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."[WOW!!] . . .
Readers of Alexander's and [clerk Andrew] Schapiro's memos may rightly wonder who was functioning as a justice, and who as a clerk. Alexander twice told Blackmun, "I would love to hear your thoughts" about the opinion, yet her memos suggest that Blackmun was most concerned with whether he should "recheck the cites."
No public evidence exists that Blackmun experienced the type of mental decrepitude that marred the final terms of Justices Hugo L. Black, William O. Douglas, and Thurgood Marshall, as detailed in several scholarly studies of the justices' lives. Nor is there any evidence that a clerk ever determined or altered any of Blackmun's votes in a case, as did occur with Justice Frank Murphy in the 1940s, or that Blackmun ever voted while failing to understand what he was doing, as Marshall's case files reveal that he did on at least one occasion. But what transpired in Blackmun's chambers, especially after 1990, was nonetheless a scandalous abdication of judicial responsibility. . . .
Blackmun must now be seen not only as a justice who evolved toward a more compassionate jurisprudence but as a justice who increasingly ceded far too much of his judicial authority to his clerks.
Some excerpts from Garrow on the lack of respect for other justices:
DURING THE 1991 TERM, TWO OF THE DECADE'S PREMIER CASES, Lee v. Weisman and Planned Parenthood of Southeastern Pennsylvania v. Casey, came before the court. Clerks Molly McUsic (who is now a senior fellow at a Maryland-based conservation foundation) and Stephanie Dangel (who is now a lawyer in Pennsylvania) played notable roles in both cases. . . .
[On Casey] Dangel confessed that she was "somewhat ambivalent about what has happened in this case," for while "there is much to be admired in the formation of the troika and the substance of their opinion, . . . given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe."
Sketching a three-part outline, Dangel explained that the specifics of the third section "cannot be worked out until AS [Antonin Scalia] has circulated his monstrosity" of a dissent. She explained that "while there may be something to cheer in the troika's opinion, there is much more to fear from the right. And the difference between the two positions is a single vote a single vote that is up for grabs in the coming election. As you have no doubt gathered, this opinion is more rhetoric than research."
Dangel concluded by telling Blackmun, "I plan to give you a draft of this opinion late Thursday or early Friday," but she added, "I think it is preferable to circulate after the conference on Friday," since the opinion "should ruffle some feathers on the right" and it would be "better to give them a few days to cool off before you have to meet with them again." She gave Blackmun a partial draft on Sunday, explaining that it was incomplete in part because "the evil nino [Scalia] has yet to circulate."
Revisions continued during the ensuing week, with Dangel telling Blackmun that "[t]he one 'substantive' decision you will have to make is whether you want to go with an ending that links the future of reproductive rights to the upcoming election (or confirmation process) in the manner that my earlier draft did. It's pretty radical. . . ." A day later, Dangel notified Blackmun that she had changed the ending so that "it now reads less as a battle cry, and more as a lament," and she followed up with another memo reporting that a Stevens clerk had said the Blackmun opinion would further politicize the decision. "I hope you don't feel that we were pressuring you too much on the final section of this opinion. You certainly should not include it if you feel uncomfortable," Dangel wrote. She added, however, that "this is not just about abortion or this Term," because "the Justices who get appointed in the next few years are going to make up the Court for most of my life!"
Dangel closed by remarking that "while this is completely inappropriate, I cannot help [but] be disappointed with JPS [John Paul Stevens]" both in Casey and in two other cases where he diverged from Blackmun. "The people of America need someone to tell them the truth. And, as the author of Roe, I think you're the only person who can do it." Later that day, Dangel informed Blackmun that Kennedy had had a clerk pass along his concern about how the Blackmun draft referred to Rehnquist simply as "the Chief." "While I have my doubts as to whether he deserves to be call[ed] 'Justice' on this one," Dangel told Blackmun, "I guess there's no need to ruffle feathers needlessly."
The partisan politics evident in McUsic's and Dangel's memos should not have been tolerated by any justice, liberal or conservative, and no similarly intemperate statements appear in clerks' memos to Brennan, Marshall, or Powell. In addition, the hostile and sometimes harshly sarcastic references to other justices--and Blackmun's failure to stop such comments--appear to indicate that the justice himself lacked respect for some of his colleagues.
There is much more on Blackmun in the print version of Legal Affairs. And then Linda Greenhouse’s Bernstein links a story about Garrow's piece on Law.com.
Dan Markel on the Justice Blackmun Story:
Dan Markel (Prawfsblawg) has some interesting (though I think not very severe) criticisms of the David Garrow piece. Here's one point that I thought I'd mention, because it's an important question -- and a difficult one -- regardless of how one comes out on the Justice Blackmun controversy:
[O]ne has to wonder whether clerks of that generation, or this one for that matter, expect their memos to become part of the public record, especially while in the midst of their careers. . . . [Supreme Court clerks] now have to worry that whatever they write for their SCOTUS bosses may be fodder for historians like Garrow during their active career. That might both chill the frank advice they give to the Justices and diminish the texture of the relationship between the clerks and judges. That might not be bad, but at least let's recognize the consequences.
A Different Take on Blackmun and His Clerks:
I just read David Garrow's piece
on Justice Blackmun and his clerks, and I have to tentatively disagree with my co-blogger Jim Lindgren's characterization
of Garrow's piece as "fair." My initial reaction is that Garrow's piece seems rather unfair. The fault may lie in the length requirements of a magazine article; perhaps Garrow has a lot more evidence for his conclusions but couldn't pack it all in to such a short piece. But based on his Legal Affairs
essay alone, I don't think Garrow has made his case.
Garrow offers three basic reasons why he thinks Justice Blackmun is guilty of "a scandalous abdication of judicial responsibility." First, law clerks to Justice Blackmun wrote memos to Blackmun that Garrow finds insufficiently deferential in tone. Second, in several key cases, Justice Blackmun adopted the recommendations of his law clerks. Third, Justice Blackmun made statements indicating his lack of understanding of one his most prominent opinions.
I don't think the evidence quite adds up, though. The tone of a law clerk's memos seems a weak proxy for whether the Justice is doing his job. Some bosses like their employees to be blunt and assertive; others like them respectful and deferential. I don't think that preference corrrelates with anything important. Similarly, the fact that Justice Blackmun accepted his clerks' recommendations in a few key cases doesn't tell us very much. It would be one thing if a clerk kept changing his or her recommendation, and Justice Blackmun flip-flopped along with the clerk. But my understanding is that Justice Blackmun tended to hire very talented clerks who shared his view of the law; given that, the fact that Blackmun accepted the advice of his clerks in a number of cases isn't particularly surprising.
The most persuasive evidence Garrow finds that Blackmun had "abdicated" his duties are the rather puzzling comments Blackmun made in 1995 about about his 1986 dissent in Bowers v. Hardwick. Blackmun's law clerk on Bowers was Pam Karlan
, now a very distinguished professor at Stanford Law School. Garrow writes:
In his 1995 oral history, [a series of interviews with former Blackmun clerk Harold Koh], Blackmun recalled that, in Bowers, Karlan "did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct." . . . . Did Blackmun's position in Roe [v. Wade], Koh asked, lead him to the Bowers dissent? "Never thought about that one, but maybe they go together," Blackmun responded. . . . In another interview five months later, Koh again asked about Bowers: "Did you see it as an explicit link to Roe v. Wade and the right-to-privacy arguments in Roe v. Wade?" Blackmun answered, "No, I would hesitate to say that I did."
It's a troubling anecdote, as you would hope Blackmun would be more engaged and self-aware. But I find it hard to go from this one anecdote to a general conclusion that Blackmun had abdicated his duties. By the time of the interview, Blackmun had retired from the Court, was in his late 80s, and was recalling an opinion written a decade earlier; I'm not so sure it's fair to construe these comments in as negative a light as Garrow does.
Garrow may be on to something, but I don't think the evidence in his Legal Affairs
piece quite measures up to his rather sweeping claim.
UPDATE: Mark Tushnet
and Jack Balkin
offer some interesting thoughts.
More on Blackmun.--
My co-blogger Orin Kerr politely disagrees with my characterization of David Garrow's article on Justice Blackmun as "fair, insightful, and scathing." Kerr does not think that Garrow is "fair" to Blackmun, but then Kerr mainly argues that the evidence in Garrow's piece is unpersuasive.
Of course, "fair" and "persuasive" are different things. Indeed, one reason that I used the words "fair" and "insightful" to describe Garrow's article is that I think the examples he selected on clerk involvement accurately match other descriptions of how Blackmun did business, but might look selective without a broader knowledge of views of Blackmun in his later years. In other words, Garrow provided documentary evidence for what some clerks have said was the way Blackmun's chambers generated opinions. It was precisely because VC readers might think Garrow's evidence unpersuasive (how persuasive can a few examples be?) that I expressed my opinion that his account, while "scathing" (and thus ungenerous), was fair.
Before I had read Garrow's account, I had long heard stories from clerks on the Supreme Court in the late 1980s that by then, Blackmun was not writing his opinions, that he was diligently doing substantive cite-checking on his clerks' opinions.
A couple of weeks ago, again before reading Garrow's account, I asked a late 1970s clerk if these stories were true. The clerk first said that Blackmun never changed a single word in the opinions that this clerk wrote for him, that Blackmun just checked the cites and published the opinions unchanged. Then the clerk qualified his statement slightly to say that maybe Blackmun occasionally changed a word here or there in the recitation of facts, but never in the legal argument. I find this appalling.
For what it's worth, I just called another late 1970s Blackmun clerk, who said that Blackmun himself actually wrote the first draft of one majority opinion that this clerk worked on, but that on other cases the clerk had "pretty much a free hand." The clerk also suggested that there were other justices semingly more troublesome in their involvement in opinion-writing than Blackmun.
I think that the evidence that Garrow describes is more telling than Kerr does--in particular, the passage I bolded, where a clerk revises her opinion, informing Blackmun: "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."
But I agree with Kerr that the examples Garrow uses are by themselves unpersuasive. I have no reason to think that Garrow, a Pulitzer Prize-winning historian, is making unrepresentative selections. I do think that some of them nicely illustrate a larger problem--that (in some terms of the Court or with some clerks) Blackmun was shockingly uninvolved with the basic task of writing opinions, serving more as a substantive cite-checker for his clerks' writing the opinions. Garrow's piece makes this point, and supports it with evidence that points in that direction. The picture that Garrow paints seems a fair one to me, given accounts from some other Supreme Court clerks.