Tuesday, April 19, 2005

More on Blackmun and His Clerks


I want to second much of what Mark Tushnet has said below on about David Garrow's recent story in Legal Affairs. I want to add that I spent some time going through the Blackmun files last summer in preparation for a book on Roe v. Wade, and I read most of the same memos from the clerks that Garrow did. I did not get the impression that Blackmun was being pushed around by his clerks or that he abdicated responsibility for his views to them. Rather, the impression I got from reading the files was that his clerks really loved Blackmun; they often spoke quite frankly not out of lack of respect for him but because they were a sort of close-knit family. Blackmun, in turn, was exceedingly generous to them and this comes out in the remarks in his interview with Harold Koh; for example, in Blackmun's remarks about Pam Karlan's excellent work on the dissent in Bowers. This sense of closeness and familial bonding is not at all uncommon a relationship between some judges and their clerks. It is simply particularly well documented in Blackmun's files.

There is some partisan gossiping by the clerks in the files on the abortion cases, but I sincerely doubt that this is unusual among clerks, particularly in cases involving hot button issues like abortion. We just have a better documentary record of this gossiping because Blackmun liked things written out in official memos.

Garrow is worried that some Justices, including Blackmun, delegate too much authority to their clerks. That is certainly a legitimate source of concern, but there is nothing that I found in Blackmun's papers to suggest that the reasons for concern were particularly greater in Blackmun's case than in the case of any other recent Justice.

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