Pay No Attention to Those Clerks Behind the Curtain

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From Supreme Court Justice Harry Blackmun's papers, opened to public scrutiny in March 2004, historian David Garrow has uncovered the tale of a judge who, in Garrow's words, "ceded to his law clerks much greater control over his official work than did any of the other 15 justices from the last half-century whose papers are publicly available." Not only did Blackmun's assistants essentially compose some of his most famous opinions, but they openly allowed partisan concerns to guide some of their recommendations. For example:

[Clerk Molly] McUsic also took the lead in handling Planned Parenthood v. Casey, an abortion case that most observers believed could lead to Roe's demise because the recent replacement of Marshall with conservative Justice Clarence Thomas would create an anti-abortion majority. "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."

In a forthcoming Reason interview, Garrow notes that each justice had only one clerk prior to World War II, and that those were essentially secretaries; today they can have four apiece, and these assistants do an astonishing amount of the judges' writing. Among other things, this makes it easier for a man to stay on the bench when he's no longer healthy enough to do the work.

My favorite story of a clerk filling in for his boss comes from another Garrow article, published in the Fall 2000 University of Chicago Law Review. In the late '40s, Justice Frank Murphy was addicted to Seconal and then Demerol, and "some of his closest acquaintances were convinced that the Justice was regularly purchasing illegal drugs." He was hospitalized more than once, and during his departure instructed a colleague to cast his votes for him. In at least one case, "his" position was conjured by two justices and Murphy's clerk, working together to invent an opinion for the phantom judge.

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  1. Too much Seconal

    Ya sure that wasn’t Justice Johnny Winter?

  2. Well somebody was doing a hell of job because Justice Frank Murphy’s dissent in Korematsu vs. United States is a masterpiece.

  3. Heh. Back when I was in college, I heard scuttlebut from a couple of poly sci grad students about similar measures to “manage” a drunken tenured prof. Another (slightly less alcoholic) professor was delegated to keep tabs on his during office hours, to make sure he wasn’t getting shitfaced behind closed doors.

    Been a while since I studied that far back in U.S. history, but wasn’t there some SC justice in the Jefferson administration who was impeached for chronic drunkenness (as well as “blasphemy”) on the bench? Sounds like a hoot.

  4. A reply by one of Blackmun’s ex-clerks:

    “[E]ven in the few cases he does examine, Mr. Garrow ignores the fact that the justice communicated his views to the clerks orally rather than in writing. He did so at breakfast with the clerks every morning, in the weekly post-conference meetings when he detailed his own views and those of every other justice who voted on a case, by telephone when he was out of town, and in the many individual conversations he had with clerks throughout the day and as he left for the evening, walking out (as he always did) through the clerks’ offices and stopping to discuss his views about one matter or another. In this fashion, the justice told his clerks how he intended to vote, how he was leaning on a close matter, or what issues he wanted researched further before he came to a conclusion. The law clerks, on the other hand, communicated their responses to the justice’s oral remarks in writing. They did so after the justice had already told them his views about the case and always with the justice’s record in similar prior cases in mind.

    “Mr. Garrow reads the clerks’ memoranda and drafts as though they were the whole story. But they are not the whole story, and, in so doing, Mr. Garrow misses the truth of the matter: that the clerks in those writings were responding to what the justice had said and following his direction, not telling him what to do. Mr. Garrow presents half the evidence, then draws erroneous conclusions accordingly, like the fellow who mistook ‘lightning bug’ for ‘lightning’ and ran around spreading storm warnings. Perhaps if Mr. Garrow had bothered to talk to some of the clerks or others who actually worked for the justice and knew how the chambers functioned, he would not have gone so completely wrong.

    “Justice Blackmun wrote 835 opinions while serving on the court: 313 majority opinions, 238 concurrences, and 284 dissents. Mr. Garrow examines barely 12 of those opinions, less than 1.5 percent. Based on this meager sample, Mr. Garrow uses his purblind analysis to trump up a charge that Justice Blackmun committed a ‘scandalous abdication of judicial responsibility.’ What is scandalous here, however, is Mr. Garrow’s meretricious approach to Justice Blackmun and his record. Justice Blackmun deserves better. So do your readers.

    “A final note: As a summa cum laude graduate of Harvard College in mathematics (where he presumably did his own work), the justice would have been amused by the wrong data and many blunders, arithmetical and otherwise, that characterize the charts accompanying Mr. Garrow’s article. Perhaps Mr. Garrow should have had a clerk check his calculations and the underlying figures before you published them.”

    http://legalaffairs.org/issues/May-June-2005/feature_response_mayjun05.msp

  5. I enjoyed David Bernstein’s comment on ex-clerks defending their bosses. I’ll just add that McDaniel served as Blackmun’s clerk in 1978, well before the most egregious behavior Garrow describes — and that the article draws on not just the clerks’ memos but Blackmun’s strange comments in subsequent interviews about the opinions he theoretically composed.

    I’ve seen the print edition of the article, by the way. The only charts in my copy have a big headline over them that says “GRAPHIC BY HANNAH FAIRFIELD.” If they do contain (unspecified) “wrong data and many blunders,” McDaniel should probably direct his critique to her, not to the author.

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