an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There's been some commentary on David Garrow's article in Legal Affairs on Justice Blackmun and his reliance on law clerks. I have some comments on Garrow's presentation. A preliminary overview is that a great deal of what Garrow identifies is perfectly standard law-clerk communication to a justice, reporting what's happening in other chambers, offering strategic advice, and so on. Anyone familiar with files in a wide range of chambers will have seen similar memos.
1. Garrow discusses the role of law clerks John Rich and George Frampton in drafting the opinion in Roe v. Wade, and in particular on their role in fleshing out the "trimester" framework. On the substance, it's worth noting that Blackmun was hearing from at least three other justices -- Stewart, Brennan, and Marshall -- that the draft that had been circulated was too rigid in its use of "viability" as the sole criterion for striking the balance between the woman's interest and the state's interest. And, as I've written elsewhere, once you try to move away from the viability standard, you're pretty much inevitably going to end up with the trimester framework. So, it's not clear to me that there's anything terribly troubling about the law clerks' role. Garrow says that "what stands out . . . is the unusually assertive and forceful manner in which the clerks voiced their views to Blackmun." The quotations Garrow provides don't strike me as particularly dramatic, and in any event I would think it would be a good rather than a bad thing that a judge encouraged his law clerks to be forceful and assertive. (One might recall here William Rehnquist's memos to Justice Robert Jackson in Brown and Terry v. Adams decided during the term Rehnquist clerked.)
2. In connection with the Cruzan case, Garrow quotes a memo from a law clerk saying that she "did not really know what your views are on this case," and comments that "it is extraordinary for a clerk to acknowledge that she 'did not really know' her justice's views on one of the term's most important cases." Garrow also quotes the law clerk's comment that she did "not know whether you have special concerns or thoughts about the case," which puts her other comments in a somewhat different light. Brennan had taken the principal dissent, and it's not unusual for other chambers to wait to see what the lead dissent will say before deciding whether to express any "special concerns or thoughts." I would take the comment that the clerk "did not really know" Blackmun's views to mean that she did not know whether he had any special concerns or thoughts not expressed in the circulated draft dissent -- and that, I think, would not be terribly extraordinary.
3. Garrow quotes what he calls "intemperate statements" and "hostile and sometimes harshly sarcastic references to other justices," which he says do not appear in clerks' memos to Brennan, Marshall, and Powell, and infers from "Blackmun's failure to stop such comments" that Blackmun "himself lacked respect for some of his colleagues." (a) This is one clerk out of dozens employed by Blackmun over the years, and there is no reason not to think that she was an outlier. (b) The comments come in the Casey case, which I suspect loosened otherwise observed strictures on comments. (c) In Justice Marshall's files, there's a join note from one of his law clerks -- in my view, an outlier in the openness of expression -- referring to a circulated draft in a case called Schmuck v. United States, saying, "Join the schmuck in Schmuck" (no points for figuring out who the reference is to). (d) We have no idea what's in the law clerk memos to, for example, Justices Scalia and Kennedy, but we do have some evidence of Rehnquist's memos to Jackson, some of which are fairly called intemperate -- referring to law clerks who "began screaming as soon as they saw this [Terry v. Adams] that 'Now we can show those damn southerners, etc.'" (e) Law clerks are youngsters, by and large, and a justice might reasonably think it not worth his time to keep them under tight rein with respect to what they wrote inside the chambers.
4. In connection with Callins v. Collins, Garrow quotes a law clerk's comments, "I would love to hear your thoughts" (twice), taking them to be a request for comments on the substance of the draft dissent in that case. But, from the context, it seems reasonably clear that the law clerk was asking for comments on her suggestions about the timing of the dissent -- whether it should be issued in connection with a particular execution or whether, as happened, it should be issued in connection with, as she put it, "any death case."
5. Most generally, Garrow's presentation fails to take into account (a) that there is a range of practices among the justices about drafting opinions (the Chief Justice has written that he delegates a fair amount of the drafting to his law clerks and not infrequently publishes opinions essentially unrevised by him), and (b) that justices typically delegate more of the drafting responsibility to their law clerks as they age. Early in the piece Garrow mentions Felix Frankfurter, who at the start of his tenure drafted everything himself, and near the end had his law clerks draft nearly everything for him.
In the end, I'm not persuaded that Garrow has actually identified anything coming close to what he calls a "scandalous abdication of judicial responsibility," at least where the standards for determining what constitutes judicial responsibility are set with reference to actual practices by the people who are justices rather with reference to some standard not likely to be implemented universally in any modern human institution. Posted
by Mark Tushnet [link]
My co-author Art Ward and myself have a book (tentatively entitled Sorcerers' Apprentices) coming out from NYU Press in spring '06 which is an empirical and historical analysis of Supreme Court law clerks. For what it's worth, we conducted a survey of former clerks, and found that Blackmun was one of the most frequent revisers of law clerk drafts. On the other hand, we also found some evidence that may support Garrow's position (although I should point out that we were not analyzing Blackmun's use of clerks exclusively, but were examining the institution of the clerks as a whole).