Posted by Orin Kerr:
Law Clerks and Supreme Court Decisions:
I'm interested in finding instances in which former Supreme Court law
clerks have taken credit (at least partially) for their role
influencing the outcome or opinion in famous Supreme Court cases. I'm
not interested in stories of clerks making private or off-the-record
comments; my interest is in public comments such as those in speeches,
books, or articles.
An example of what I have in mind is [1]Professor Laurence Tribe's
1991 speech in which he took at least some credit for the famous
Fourth Amendment decision in Katz v. United States:
Around 23 years ago, as a then-recent law school graduate serving
as law clerk to Supreme Court Justice Potter Stewart, I found
myself working on a case involving the government's electronic
surveillance of a suspected criminal -- in the form of a tiny
device attached to the outside of a public telephone booth. Because
the invasion of the suspect's privacy was accomplished without
physical trespass into a "constitutionally protected area," the
Federal Government argued, relying on *Olmstead*, that there had
been no "search" or "seizure," and therefore that the Fourth
Amendment "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures," simply did not apply.
At first, there were only four votes to overrule *Olmstead* and
to hold the Fourth Amendment applicable to wiretapping and
electronic eavesdropping. I'm proud to say that, as a 26-year-old
kid, I had at least a little bit to do with changing that number
>from four to seven -- and with the argument, formally adopted by a
seven-Justice majority in December 1967, that the Fourth Amendment
"protects people, not places." (389 U.S. at 351.) In that decision,
*Katz v. United States*, the Supreme Court finally repudiated
*Olmstead* and the many decisions that had relied upon it and
reasoned that, given the role of electronic telecommunications in
modern life, the First Amendment purposes of protecting *free
speech* as well as the Fourth Amendment purposes of protecting
*privacy* require treating as a "search" any invasion of a person's
confidential telephone communications, with or without physical
trespass.
If you know of other examples, please e-mail me at okerr (at)
law.gwu.edu. Thanks.
References
1. http://www.epic.org/free_speech/tribe.html
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