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.
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.