Posted by Jim Lindgren: More on Blackmun.-- My co-blogger [1]Orin Kerr disagrees with my characterization of David Garrow's article on Justice Blackmun as [2]"fair, insightful, and scathing." Kerr disagrees with my belief that Garrow is "fair" to Blackmun, but then Kerr mainly argues that the evidence in Garrow's piece is unpersuasive.
Of course, "fair" and "persuasive" are different things. Indeed, one reason that I used the words "fair" and "insightful" to describe Garrow's article is that I think the examples he selected on clerk involvement accurately match other descriptions of how Blackmun did business, but might look selective without a broader knowledge of views of Blackmun in his later years. In other words, Garrow provided documentary evidence for what some clerks have said was the way Blackmun's chambers generated opinions. It was precisely because VC readers might think Garrow's evidence unpersuasive (how persuasive can a few examples be?) that I expressed my opinion that his account, while "scathing" (and thus ungenerous), was fair. Before I had read Garrow's account, I had long heard stories from clerks on the Supreme Court in the late 1980s that by then, Blackmun was not writing his opinions, that he was diligently doing substantive cite-checking on his clerks' opinions. A couple of weeks ago, again before reading Garrow's account, I asked a late 1970s clerk if these stories were true. The clerk first said that Blackmun never changed a single word in the opinions that this professor wrote for him, that Blackmun just checked the cites and published them unchanged. Then the clerk qualified his statement slightly to say that maybe Blackmun occasionally changed a word here or there in the recitation of facts, but never in the legal argument. I find this appalling. For what it's worth, I just called another late 1970s Blackmun clerk, who said that Blackmun himself actually wrote the first draft of one majority opinion that this clerk worked on, but that on other cases the clerk had "pretty much a free hand." The clerk also suggested that there were other justices semingly more troublesome in their involvement in opinion-writing than Blackmun. I think that the evidence that Garrow describes is more telling than Kerr does--in particular, the passage [3]I bolded, where a clerk revises her opinion, informing Blackmun: "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy." But I agree with Kerr that the examples Garrow uses are by themselves unpersuasive. I have no reason to think that Garrow, a Pulitzer Prize-winning historian, is making unrepresentative selections. I do think that some of them nicely illustrate a larger problem--that (in some terms of the Court or with some clerks) Blackmun was shockingly uninvolved with the basic task of writing opinions, serving more as a substantive cite-checker for his clerks' writing the opinions. Garrow's piece makes this point, and supports it with evidence that points in that direction. The picture that Garrow paints seems a fair one to me, given accounts from some other Supreme Court clerks. References Visible links 1. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114025448 2. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1113928611 3. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1113928611 Hidden links: 4. http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
