Posted by Eugene Volokh:
Dan Markel on the Justice Blackmun Story:
[1]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.
References
1. http://prawfsblawg.blogs.com/prawfsblawg/2005/04/markel_on_garro.html
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