Law.com
Blackmun Clerks Had Too Much Power, Says Historian
Tony Mauro
Legal Times
04-18-2005
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.
The article in Legal Affairs, based on research done by Garrow in
Blackmun's papers released last year at the Library of Congress, recounts
numerous cases in which memoranda from clerks and other documents show an
outsized influence and assertive tone by clerks that Garrow says is unmatched by
other justices whose papers are available.
In one instance in 1994, Garrow says that from reading the clerk memos that led
to Blackmun's renunciation of the death penalty in Callins v. Collins,
one may "rightly wonder who was functioning as a justice and who as a clerk." In
the 1990 Cruzan right-to-die case, Garrow quotes a memo in which a law
clerk tells Blackmun she "does not really know" his views -- an indication, says
Garrow, that "by the spring of 1990, he was giving his law clerks little
explicit direction in the court's most notable cases."
Garrow also relates sharply partisan memos from clerks about national politics
and about other justices, concluding that such rhetoric "should not have been
tolerated by any justice."
The article, a copy of which began circulating among former Blackmun clerks late
last week, has already stirred controversy. Several of his clerks insisted that
the same kinds of exchanges occur verbally in other chambers, but that because
of Blackmun's preference for written memos, his files give an exaggerated
picture of the clerks' influence.
"Professor Garrow's piece is based on sadly defective research," said Yale Law
School Dean Harold Koh, who conducted an extensive oral history with Blackmun
and orchestrated the release of his papers. "What he simply misses is that
Justice Blackmun directed his clerks orally through myriad conversations each
day. The clerks responded in writing ... Frankly, a justice as careful and
thorough as Justice Blackmun deserves better." Legal Affairs was launched
in association with Koh's Yale Law School in 2002, but ties between Yale and the
magazine ended last October.
Garrow's article appears just two weeks before the publication of "Becoming
Justice Blackmun," a book based on Blackmun's papers authored by Pulitzer
Prize-winning New York Times reporter Linda Greenhouse. On Friday
Greenhouse declined substantive comment on Garrow's article. "It's not my job to
defend Harry Blackmun," she said, adding that her own book offers a
"well-rounded" portrayal of Blackmun's relationship with his clerks.
Indeed, a preview copy of Greenhouse's book recounts some of the same cases
cited by Garrow, but she does not portray the clerk relationship as exceptional,
and she also offers instances when Blackmun rejected the advice of his clerks.
Southern Methodist University political science professor Joseph Kobylka, author
of another forthcoming Blackmun biography, said that especially in his later
years, Blackmun's clerks assumed a more active role, but he described Garrow's
thesis as "overblown," adding, "I would never say Blackmun was not running the
ship." Garrow defended his article on Friday, and said that if anything, the
response of Blackmun clerks points to an even bigger problem at the Court --
that clerks in general do too much of the Court's work.
"The real issue is not specific to Blackmun," said Garrow, a professor at Emory
University, "but whether furnishing the justices with four clerks creates
powerful incentives to the justices to do far less of their work than if they
had only one. The debate that would be good is whether it would be better if
they had just one clerk or at the most two."
Garrow, who had a friendly relationship with Blackmun and has interviewed other
justices as well in his scholarly and journalistic work, said it was difficult
for him to write critically about Blackmun, who retired in 1994 and died in
1999. "I didn't want to do it," Garrow said on Friday.
But Garrow said he felt the evidence was compelling that Blackmun's relationship
with his clerks was sharply different from that of any of the 15 other justices
whose papers he has seen among those who served in the last half century. “Will
we find someday that Justice Scalia's file on Bush v. Gore reflects the
same partisanship among the clerks that we see in Blackmun's files in Planned
Parenthood v. Casey?" Garrow asked. "I hope we don't."
It was in the Casey file that some of the most stinging remarks are made
by Blackmun's clerks. Clerk Stephanie Dangel, now a lawyer in Pennsylvania,
referred to Justice Antonin Scalia as "evil Nino" and worried that even though
Casey would preserve Blackmun's Roe v. Wade decision declaring a
woman's right to an abortion, the ruling "may have the effect of removing
abortion from the political agenda just long enough to ensure the re-election of
President [George H.W.] Bush."
When the papers were first released last year, Dangel told Legal Times
she had mixed feelings about the release of the memos, which she said she wrote
in part to cheer Blackmun up. "There's no avoiding the fact that the Court had
become politicized on the issue," she added at the time.
Another former clerk from that period, who did not want to have his name used,
also said that especially after liberals William Brennan Jr. and Thurgood
Marshall left the Court, Blackmun "wanted us to turn up the rhetorical heat a
notch. He didn't mind pounding the table a bit." That could also explain the
assertive and partisan tone of the clerks' memos, this clerk said.
The recurring theme among Blackmun law clerks responding to Garrow's article was
that Blackmun should not be faulted for being unique in wanting his clerks to
put everything in writing.
"Anything of substance was to be communicated through a 'Mr. Justice' memo, left
on the top of the file cabinet outside his inner office," said Andrew Schapiro,
a Blackmun clerk who is now a partner at the New York City office of Mayer,
Brown, Rowe & Maw. Blackmun would mark up the memos and return them.
Schapiro, who authored some of the memos in the Callins v. Collins case
mentioned by Garrow, also said, "Everything I drafted for Justice Blackmun,
including the memo regarding the death penalty, was based firmly on things that
the Justice had been saying or issues he had been raising in his prior opinions,
when voting on stay applications, upon returning from the justices' conferences,
and at our daily breakfasts. They didn't just come out of thin air."
Though many of Garrow's examples are from the latter part of Blackmun's tenure,
he also writes about the 1973 Roe v. Wade decision as a case of
extraordinary clerk influence and assertiveness. He quotes several memos in
which clerks state in no uncertain terms their own views about the case and what
Blackmun should say. Blackmun adopted their suggestions, Garrow indicates.
Randall Bezanson, one of the Roe-era clerks cited by Garrow, was sharply
critical of Garrow's article, which he saw late last week. "The conclusions he
draws about assertiveness and forcefulness are a wrong and unfortunate
misinterpretation," says Bezanson, now a professor at the University of Iowa
College of Law. "Justice Blackmun treated his clerks as people in whom he had
confidence and from whom he wanted their views stated in a clear way. The
justice was clearly in charge."
Bezanson, like others interviewed, said Garrow's interpretation might have been
different if he had sought the perspectives of the clerks whose memos he cited.
Asked about that point, Garrow said his goal in the article was "to put the
documentary record out there without people doing a lot of backing and filling."
Lincoln Caplan, editor and president of Legal Affairs, said on Friday
that Garrow "presented the article as a work of history," and that he was
satisfied that it was fair and accurate. Caplan also said "it would have been
acceptable and sensible to enhance the archival work" with views of the clerks,
but not required.