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May|June 2005
The Brains Behind Blackmun By David J. Garrow
Readers Respond: Justice Blackmun
Unbecoming Justice Blackmun By William Saletan
A Measure Of Truth By Kermit Roosevelt
The Federalist Capers By Roderick M. Hills, Jr.
A Dirty Little Secret By Eric Redman
Justice on the Half Shell By Aaron Kuriloff
The Prince of Darknet By Joseph D. Lasica

Readers Respond: Justice Blackmun


Legal Affairs aspires to provide insightful discussion of issues at the intersection of law and policy. In the main, I believe it's done well in meeting that important objective. The current issue, to my mind, is a jarring anomaly.

David Garrow's cover article makes sweeping, condemnatory assertions about the extent to which Justice Blackmun's written opinions reflect the minds and pens of his law clerks. Were those condemnations better supported, publication of this article might have formed one bookend in a provocative, balanced exploration of two important subjects: the quality and integrity of Justice Blackmun's work and the role of law clerks in the work of the modern United States Supreme Court. The magazine's editors, however, chose a different course, sensationalizing the article with a demeaning cartoon cover and headlines that proclaim the unsupported conclusion that, "more than any justice in memory," Justice Blackmun did neither his own thinking nor writing. One would barely know from this one-sided treatment what a recently published excerpt from Linda Greenhouse's forthcoming study of the Blackmun papers, Becoming Justice Blackmun, reveals: that while Justice Blackmun (like others, one would hope) encouraged his law clerks to write freely and forcefully within the confines of his chambers, he often rejected their recommendations and indeed composed his own analytic memos for each of the several thousand cases in which he participated over a 24-year tenure.

Like most of this magazine's readers, I never had the privilege to clerk for a Supreme Court justice or to meet Justice Blackmun. But my work before that court and its justices leaves me certain, and saddened, that this issue of Legal Affairs departs from its worthwhile mission.

Seth Waxman
Chairman
Legal Affairs



David Garrow's article about United States Supreme Court Justice Harry Blackmun uses the Blackmun papers to make an important, though not altogether original, point: Some justices delegate too much responsibility to inexperienced and inexpert law clerks for the intellectual and doctrinal content of their opinions. Garrow, however, goes far beyond this point. He claims that Blackmun was scandalously guilty of excessive clerk delegation both as an objective matter and in comparison to other justices of the modern era. This is a heavy charge. And in leveling it, Garrow bears a commensurate responsibility to have considered whether the claims he makes are fully justified given the source material (almost exclusively the Blackmun papers) on which he relies.

Garrow's article fails this test, badly. By failing to consider the nature and limits of the Blackmun papers, and by apparently failing to augment his research with interviews and other perspective-enhancing tools, Garrow has painted an unnuanced, unfair, and ultimately inaccurate portrait.

Garrow's main theme is that Blackmun was extraordinarily disengaged from the writing of his own opinions. But, in addition to ignoring Blackmun's oral communications with his clerks (a subject of others' comments), Garrow reads too much into some documents, occasionally to the point of absurdity and always in a way that casts Blackmun in the most negative light possible. So it is that Garrow mistakenly ascribes great significance to a note from law clerk Martha Matthews stating that she does "not really know" Blackmun's position on the right-to-die issue raised by the 1990 case of Cruzan v. Director, Missouri Department of Health. Matthews's note asks Blackmun whether he has "special concerns" that might warrant drafting a separate dissent in addition to the one Justice William Brennan had just circulated. According to Garrow, this note proves that Blackmun was providing his clerks with no guidance on even the most important cases, such as Cruzan.

This conclusion is unsupported and seems to betray a lack of understanding about the flow of work inside the court. It is hardly surprising that Blackmun would not have shared with Matthews his specific thinking on Cruzan at the time Matthews's note was written. At this point, Blackmun would long since have told Matthews that he had voted at the justices' conference to dissent. As part of his customary clerk briefing, Blackmun also would have sketched out his general views—and Matthews would have had continuing access to these views simply by asking Blackmun's secretary to share with her the justice's meticulous conference notes. But there would have been no cause in Cruzan for Blackmun to have provided additional guidance to Matthews. From the justice's perspective, there was no work to be done on Cruzan until Brennan's dissenting opinion circulated, at which point Blackmun would have to decide whether to join it, suggest revisions, or write his own separate dissent. (In the interim, Blackmun had dozens of other cases to attend to).

As Garrow notes, Brennan's draft dissent did not circulate until May 1990, at which point Matthews gave her initial thoughts to the justice and asked him to weigh in with his views, including his inclination about writing separately. This is hardly exceptional. Clerks in the chambers of other dissenting justices almost certainly followed a similar process, either in writing or orally. Properly read, Matthews's note actually undermines Garrow's thesis that the clerks excessively controlled Blackmun. The note reflects the act of an underling seeking information and guidance from a superior.

Indeed, Garrow tries to make hay out of the most innocuous comments. On a personal note, Garrow tries to draw negative significance from the fact that, upon delivering a draft for Blackmun's intended dissent in Webster v. Reproductive Health Services, I began with the sentence, "I hope you like what I have drafted..." Garrow treats this pedestrian seeking of approval as some sort of evidence that Blackmun was disengaged from the opinion-writing process. How so? I was giving him a draft to review; which he did, line by line.

Garrow's comparison of Blackmun with other justices is further marred by his failure to account for Blackmun's practice (unique among the justices) of having his clerks communicate with him during the workday almost exclusively in writing. This comparative abundance of documentary material can mislead in many ways. One is obvious. The Blackmun papers provide Garrow with lots of fodder for criticizing Blackmun for not more actively policing the sometimes sarcastic or politically driven remarks that his clerks made about other justices. These clerk remarks accurately reflect the poisonous atmosphere that existed inside a deeply divided court in the late 1980s through the mid-1990s. Garrow is rightly concerned about the influence of nakedly political considerations on the court's deliberations. But I very much doubt, as Garrow suggests, that the nature of political discourse or the level of decorum was much different in a number of other chambers during this period. It's just that elsewhere the partisan sniping commentary was spoken instead of written.

Garrow also suggests that Blackmun's delegation problem grew worse towards the end of his tenure. Perhaps so. But here, too, Garrow's account fails to provide important context. As Garrow complains, clerks working on reproductive rights cases in the late 1980s and 1990s (myself included) did not obtain much substantive input from Blackmun for their opinion drafts. But this would appear less surprising if Garrow had also observed that clerks of this era had 15 years of prior Blackmun opinions on which to draw. At this stage, in some circumstances, additional direction from Blackmun would have been a pointless redundancy.

None of this is to say that Justice Blackmun did not delegate too much of the original design for the intellectual content for his opinions to law clerks. Notwithstanding my enormous affection and admiration for the justice, I think he did—and Garrow's discussion of how Roe v. Wade's trimester framework came into being helps illustrate the point. In my view, every justice should be deeply engaged in the original formulation of every significant doctrinal twist and turn of his or her opinions. On at least some occasions, Blackmun was not. And in this regard, a piece like Garrow's, despite its methodological failings, provides a useful counterpoint to the usual claptrap minimizing the role that clerks play in fashioning the law.

Instead, a main problem with Garrow's piece, and it is severe, lies in the way he caricatures Blackmun and thereby distinguishes him from or compares him unfavorably with other justices. The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this. If Garrow's article sparks a more accurate and meaningful discussion on this subject, it will have served a worthwhile purpose.

Edward Lazarus
Law Clerk to Justice Blackmun
October Term 1988
Los Angeles, Calif.





David Garrow's cover story, The Brains Behind Blackmun, certainly raised many questions—not about Justice Blackmun, but about Mr. Garrow's methods, conclusions, judgment, and motives in publishing this diatribe. Drawing on a narrowly limited selection from the massive papers left by the justice to the care of the Library of Congress, Mr. Garrow asserts that the justice betrayed his judicial duties and his oath to the Constitution by abdicating to his law clerks his responsibility to decide cases. But Mr. Garrow can make this assertion only by overlooking the vast bulk of the case files, by turning a blind eye to the great weight of the evidence that does not support his thesis, and by ignoring how the justice's chambers functioned day to day.

First, Mr. Garrow ignores the many cases that the justice either handled by himself or as to which the justice disagreed with the result recommended by his clerk. Both events regularly occurred during every term of the United States Supreme Court, and they often involved important constitutional issues. For example, the clerks all knew that the justice held firm views on the Fourth Amendment and capital punishment, views that often did not accord with those held by the clerk handling the particular cases that raised such issues. But the justice's views on those issues, as on all issues, prevailed. Indeed, at the commencement of every term, the justice reminded the law clerks that they had a responsibility to learn how he had voted in all his previous cases, both at the Supreme Court and when he sat on the U.S. Court of Appeals for the Eighth Circuit, so they could keep his record firmly in mind when preparing memoranda and drafts for his review.

Second, even in the few cases he does examine, Mr. Garrow ignores the fact that the justice communicated his views to the clerks orally rather than in writing. He did so at breakfast with the clerks every morning, in the weekly post-conference meetings when he detailed his own views and those of every other justice who voted on a case, by telephone when he was out of town, and in the many individual conversations he had with clerks throughout the day and as he left for the evening, walking out (as he always did) through the clerks' offices and stopping to discuss his views about one matter or another. In this fashion, the justice told his clerks how he intended to vote, how he was leaning on a close matter, or what issues he wanted researched further before he came to a conclusion. The law clerks, on the other hand, communicated their responses to the justice's oral remarks in writing. They did so after the justice had already told them his views about the case and always with the justice's record in similar prior cases in mind.

Mr. Garrow reads the clerks' memoranda and drafts as though they were the whole story. But they are not the whole story, and, in so doing, Mr. Garrow misses the truth of the matter: that the clerks in those writings were responding to what the justice had said and following his direction, not telling him what to do. Mr. Garrow presents half the evidence, then draws erroneous conclusions accordingly, like the fellow who mistook "lightning bug" for "lightning" and ran around spreading storm warnings. Perhaps if Mr. Garrow had bothered to talk to some of the clerks or others who actually worked for the justice and knew how the chambers functioned, he would not have gone so completely wrong.

Justice Blackmun wrote 835 opinions while serving on the court: 313 majority opinions, 238 concurrences, and 284 dissents. Mr. Garrow examines barely 12 of those opinions, less than 1.5 percent. Based on this meager sample, Mr. Garrow uses his purblind analysis to trump up a charge that Justice Blackmun committed a "scandalous abdication of judicial responsibility." What is scandalous here, however, is Mr. Garrow's meretricious approach to Justice Blackmun and his record. Justice Blackmun deserves better. So do your readers.

A final note: As a summa cum laude graduate of Harvard College in mathematics (where he presumably did his own work), the justice would have been amused by the wrong data and many blunders, arithmetical and otherwise, that characterize the charts accompanying Mr. Garrow's article. Perhaps Mr. Garrow should have had a clerk check his calculations and the underlying figures before you published them.

William Alden McDaniel, Jr.
Law Clerk to Justice Blackmun
October Term 1978




As a former law clerk to United States Supreme Court Justice Harry Blackmun (October Term 1982), and as a reader and generally an admirer of Legal Affairs, I was distressed to see David Garrow's unfair article concerning the justice. I am dismayed that you would publish an attack on the reputation of an important and courageous man like the justice when the very evidence your author cites fails to support his claims. I would have thought it obvious, for example, that what the justice's law clerks wrote in memoranda addressed to him hardly demonstrates what the justice thought about the issues or individuals discussed. It is also obvious that an absence of written direction hardly proves that the justice gave no direction at all on a case.

Much more important than the question of your judgment in publishing this piece, however, is the fact that Garrow has Justice Blackmun all wrong. The truth is that Justice Blackmun communicated very clearly to his clerks his view of the law and of the world, and often gave direction with respect to particular cases in exchanges not reflected in the written record. We learned through daily contact with him his approach to issues and the cases before the court. We tried to draft bench memos that addressed his concerns and opinions that reflected his position on a case and his voice and his outlook on the law.

No judge or public official of whom I am aware ever took his job, and the public trust associated with it, more seriously. The justice worked 11-hour days, six days a week, throughout every term, and then went home at night to work some more. I am sure no justice has ever tried more mightily to decide every case correctly based on its unique legal and factual make up. No justice worked harder to imbue his rulings with his sense of the law and his sense of justice. And as for being his own man, Justice Blackmun rejected recommendations made by his clerks, including yours truly; did his own bench memos on several cases during my own year and others; prepared his own drafts; and sent the drafts of others back to the drawing board when he did not think highly of them. In the course of editing our work, the justice literally read every case cited in every draft opinion to ensure the opinion was properly grounded. I can guarantee that is not a practice followed by every other judge.

Of course, Justice Blackmun listened to his law clerks. I thought then and think now that that was a good thing. Generally, I believe he came to respect and trust his clerks where they demonstrated they deserved his trust. And he relied on their judgment and their work. No one in a position of high trust and responsibility can afford to operate otherwise, and this is no less true of a Supreme Court justice, given the size of a justice's task. But based on first hand observation over the course of my clerkship year and my close association with him thereafter, I am certain that there has been no justice who worked harder at the job or cared more about the integrity of his work than Harry Blackmun. He was a great man and a great justice.

David W. Ogden
Washington, D.C.

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