David Garrow on the Justice Blackmun Who Didn't Exist

The lead paragraph of the NY Law Journal's story about a historian's review of Justice Harry Blackmun's private papers doesn't pull any punches:

The late Supreme Court Justice Harry Blackmun ceded so much of his authority to his law clerks during his 24-year tenure that it amounts to "a scandalous abdication of judicial responsibility," Pulitzer Prize-winning historian David Garrow asserts in a magazine article out today.

There is an article by Garrow himself  at Legal Affairs, and extensive analysis at Volokh.

Me, I had always thought of Blackmun, the author of Roe v. Wade, as one of the dumbest Supreme Court justices, and Garrow's work shows why.  There never really was a "Justice Blackmun", there was just a series of (liberal) law clerks, fresh out of law school, pretending to be Justice Blackmun, while the Justice himself worked as a glorified clerk. 

There is plenty of evidence.  Here, for example, is a memo to Blackmun by one of his clerks regarding the decision in a key abortion case:

Dangel [the clerk] concluded by telling Blackmun, "I plan to give you a draft of this opinion late Thursday or early Friday," but she added, "I think it is preferable to circulate after the conference on Friday," since the opinion "should ruffle some feathers on the right" and it would be "better to give them a few days to cool off before you have to meet with them again." She gave Blackmun a partial draft on Sunday, explaining that it was incomplete in part because "the evil nino [Scalia] has yet to circulate."

So Ms. Dangel is not only writing Justice Blackmun's opinions for him (if she was planning on giving it to him on Friday for a Friday release, he wouldn't have any time to re-write it), but was telling him how to deal with the other justices.  And please note the lack of respect for the other justices shown in the term "evil nino".

It's equally clear that Blackmun's clerks were not only playing Supreme Court justice, they were also playing politics.  For example one of the clerks, Ms. McUsic, was pushing him to have a case which might overturn Roe decided prior to a presidential election, in hopes that it would result in President G. Bush's defeat:

"The prospect of this case being heard has gripped the attention of the outside world," McUsic told Blackmun. "If you believe there are enough votes on the Court now to overturn Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage. The only harm would be that Roe would be overturned sooner rather than later. While under usual circumstances that harm would be enough to avoid hearing the case for as long as possible, the November Presidential elections may tip the scale in favor of hearing this case."

There is lots more.  It appears that Justice Blackmun never really understood the rationale of what he considered his most important opinion (in Bowers v. Hardwick).  And Blackmun's famous turn against the death penalty right before his retirement ("I no longer shall tinker with the machinery of death") was entirely engineered and written by his clerks.

It's one thing to have decisions of our elected  state and federal legislatures overturned by 5 elderly lawyers.  It comes as something of a shock to me to recognize that we really might be taking orders from a bunch of people who are a year or two out of law school.

Comments

[kafkaesq]

That's a bold claim to be asserting without backing it with anything more than subjective interpretations of a few select memos. Are you aware of Garrow's agenda?

Blackmun opened himself up by allowing a lot of to become public. How many other Justices would be subject to this criticism if they released their communications? You might want to ask someone who's clerked for the Court before you pass this kind of judgment on one Justice.

[Roscoe]

Kafkaesq:
A few select memos? Garrow was working with over 1500 boxes of documents, released by the Library to Congress.

And you ask whether I am "aware of Garrow's agenda". Do you have any evidence he had one, or are you just throwing mud. He did win a Pulitzer for his biography of Martin Luther King, which some folks think establishes credibility.

You note how terrible it would be if all justices released their papers. Yeah, we might actually get to learn what goes on in the third branch of our government.

Finally you suggest that before I can blog on this subject I need to talk to some Supreme Court clerks. Do I also need to fly to the moon personally to tell you that I don't think it's made of green cheese?

[kafkaesq]

My overall point was that it's dishonest to single out Blackmun. All judges have much of their writing done by clerks- you apparently don't have much of an idea about how the clerk-judge relationship works. Brennan was pretty famous for being the one guy who did all of his writing himself. I'm not sure why Garrow is attacking Harry in particular, but I bet it has something to do with his authorship of Roe, which was painstakingly reasearched by Blackmun.

If all judges released their papers then we'd see the true picture- and I bet Blackmun would blend in rather than stick out, as Garrow would have us believe.

Writing about Martin Luther Kind doesn't make you a Supreme Court expert.

I won't dignify your strawman "green cheese" analogy- you know that's a rediculous argument. Why don't you write a post about brain surgery or rocket science next?

[Roscoe]

So let me get this straight. It's pointed out that Harry Blackmun used to basically let his clerks decide his positions for him, and you say it's no big deal because all the other justices do it to? That would be a much bigger deal, if you have any evidence for it(which you haven't provided).

But I don't believe that the sitting justices are that disengaged. I actually had a case at the Supreme Court once, where I participated in the briefing and attended the argument (it was my case at the Ninth Circuit). The issues were sort of abstract, involving ERISA, federal preemption, state insurance law, and the exemption carved out in antitrust law by McCarran-Ferguson. All the justices except Thomas asked some pretty smart questions (Thomas never said anything at all, except to make jokes to Souter), and I was impressed by the how much they knew about the case.

I also don't believe that all the justices routinely let clerks draft their opinions. Scalia, for example, has a very distinctive writing style (so does Justice "never use a sentence where a paragraph will do" O'Connor. So I have to think at least those two Justices are writing most of their opinions.

Finally, while I was only at the Supreme Court once, I have been practicing extensively at the local District and Circuit Courts for longer than I like to think about. With some exceptions, members of the federal judiciary are smart, hard working professionals who would no sooner abdicate their power to their clerks than they would fly to the moon for some of that good green cheese.

You can put words in my mouth all you want, but that won't change the fact that you haven't rebutted my points.

I never said clerks decide opinions. From what I've read and heard from clerks and judges, the clerks do almost all the research and much of the writing. Then the judge edits, adds, and comes up with their opinion.

The only evidence that Blackmun was any different is the fact that his papers are open to scrutiny and the other justices aren't. I'm glad you believe Scalia and O'Connor write their opinions. I wouldn't be surprised if Scalia wrote all of Thomas' opinions as well. I'm sure if we opened the files on them, we could assemble the same picture Garrow does for Blackmun.

I'm quite sure that if Blackmun wasn't the author of Roe, we wouldn't be discussing this right now. And the record is quite clear that Blackmun went out of his way to over-research Roe. The whole motivation for tearing apart Justice Blackmun is painfully obvious, and you ought to be ashamed of yourself for jumping on the bandwagon when you clearly don't seem to know what you're talking about.

[Roscoe]

Kafkaesq: Its tough to rebut your "points" because the little buggers keep changing. Originally you accused Mr. Garrow of having an agenda (without any evidence). When I pointed out he won a Pulitzer for a biography on Dr. King (which hardly qualifies him for membership in the Great Right Wing Conspiracy), you changed your attack on him to a lack of qualification.
Now you claim that I am the one who has an agenda, and that my only reason for taking an interest in this is that Blackmun was the author of Roe v. Wade. Of course you don't have any evidence of that either.
So you are going to have to put up or shut up. I have written over 400 hundred posts since I started this Blog, and if I am obsessed with either Roe or Harry Blackmun you would think I would have mentioned either of them at least once before. But I don't think I ever did.
I haven't got all day to argue with morons. If your next post doesn't start out with some real evidence of my "agenda", I'm deleting it.