Posted by Orin Kerr:
A Different Take on Blackmun and His Clerks:
I just read [1]David Garrow's piece on Justice Blackmun and his
clerks, and I have to disagree with [2]my co-blogger Jim Lindgren's
characterization of Garrow's piece as "fair." I thought Garrow's piece
was rather unfair and a bit lame. The fault may lie in the length
requirements of a magazine article; perhaps Garrow has a lot more
evidence for his conclusions but couldn't pack it all in to such a
short piece. But based on his Legal Affairs essay alone, I don't think
Garrow has made his case.
Garrow offers three basic reasons why he thinks Justice Blackmun is
guilty of "a scandalous abdication of judicial responsibility." First,
law clerks to Justice Blackmun wrote memos to Justice Blackmun that
Garrow finds insufficiently deferential in tone. Second, in several
key cases, Justice Blackmun adopted the recommendations of his law
clerks. Third, Justice Blackmun made statements indicating his lack of
understanding of one his most prominent opinions.
I don't think the evidence quite adds up, though. The tone of a law
clerk's memos seems quite irrelevant to the question of whether the
Justice is doing his job. Some bosses like their employees to be blunt
and assertive; others like them respectful and deferential. I don't
think that preference corrrelates with anything important. Similarly,
the fact that Justice Blackmun accepted his clerks' recommendations in
a few key cases doesn't tell us very much. It would be one thing if a
clerk kept changing his or her recommendation, and Justice Blackmun
flip-flopped along with the clerk. But my understanding is that
Justice Blackmun tended to hire very talented clerks who shared his
view of the law; given that, the fact that Blackmun accepted the
advice of his clerks in a number of cases isn't particularly
surprising.
The most persuasive evidence Garrow finds that Blackmun had
"abdicated" his duties are his rather puzzling comments Blackmun made
in 1995 about about his 1986 dissent in Bowers v. Hardwick. Blackmun's
law clerk on Bowers was [3]Pam Karlan, now a very distinguished
professor at Stanford Law School. Garrow writes:
In his 1995 oral history, [a series of interviews with former
Blackmun clerk Harold Koh], Blackmun recalled that, in Bowers,
Karlan "did a lot of very effective writing, and I owe a lot to her
and her ability in getting that dissent out. She felt very strongly
about it, and I think is correct in her approach to it. I think the
dissent is correct." . . . . Did Blackmun's position in Roe [v.
Wade], Koh asked, lead him to the Bowers dissent? "Never thought
about that one, but maybe they go together," Blackmun responded. .
. . In another interview five months later, Koh again asked about
Bowers: "Did you see it as an explicit link to Roe v. Wade and the
right-to-privacy arguments in Roe v. Wade?" Blackmun answered, "No,
I would hesitate to say that I did."
It's a troubling anecdote, as you would hope Blackmun would be more
engaged and self-aware. But I find it hard to go from this one
anecdote to a general conclusion that Blackmun had abdicated his
duties. By the time of the interview, Blackmun had retired from the
Court, was in his late 80s, and was recalling an opinion written a
decade earlier; I'm not so sure it's fair to construe these comments
in as negative a light as Garrow does.
Garrow may be on to something, but I don't think the evidence in his
Legal Affairs piece quite measures up to his rather sweeping claim.
UPDATE: [4]Mark Tushnet and [5]Jack Balkin offer some interesting
thoughts.
References
1.
http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp
2. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1113928611
3. http://www.law.stanford.edu/faculty/karlan/
4.
http://balkin.blogspot.com/2005/04/garrow-on-blackmun-and-law-clerks_19.html
5. http://balkin.blogspot.com/2005/04/more-on-blackmun-and-his-clerks.html
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