The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
District of Columbia v. Heller was decided during the OT 2007 Term. Justice Scalia wrote the majority opinion and Justice John Paul Stevens wrote the principal dissent. In 2019, Justice Stevens wrote an article for the Atlantic charging that Heller was the worst decision of his tenure. And in the essay, he highlighted the role his law clerk, Kate Shaw, played during that case.
Before the argument, I had decided that stare decisis provided a correct and sufficient basis for upholding the challenged gun regulation, but I nonetheless asked my especially competent law clerk, Kate Shaw, to make a thorough study of the merits of the argument that an independent review of the historical materials would lead to the same result. I wanted that specific study to help me decide which argument to feature in my dissent, which I planned to complete and circulate before Scalia completed his opinion for the majority. Shaw convinced me that Miller had been correctly decided; accordingly, I decided to feature both arguments in my dissent, which we were able to circulate on April 28, 2008, five weeks before Scalia circulated the majority opinion on June 2, 2008.
Shaw, now a law professor at Cardozo, wrote an op-ed in the New York Times with John Bash, who clerked for Justice Scalia during OT 2007. I am not aware of any public statement that Justice Scalia made identifying Bash's role in the process. The Op-Ed is titled, "We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong." And the authors acknowledge that they had assisted their bosses with their respective opinions:
We each assisted a boss we revered in drafting his opinion, and we're able to acknowledge that work without breaching any confidences. Justice Scalia had a practice of signing one opinion for a clerk each term, which permitted the clerk to disclose having worked on that case, and for John, that was Heller; Justice Stevens noted in his 2019 autobiography, "The Making of a Justice," that Kate was the Heller clerk in his chambers.
It is common for a Supreme Court clerk to disclose that he or she worked on a particular opinion. But the New York Times did not give Shaw and Bash a byline to disclose an anodyne fact. The authors proceed to then discuss the very decision they helped write. Much of the guest essay consists of quoting the opinion itself. Again, any competent Second Amendment scholar can quote from Heller. Their expertise lies, if at all, in what they know about the case from their personal experiences.
Rather, we think it's clear that every member of the court on which we clerked joined an opinion — either majority or dissent — that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.
It is clear that every member of the Heller majority signed onto the qualifying language that limited the Second Amendment. But did everyone, including Justice Thomas, actually "agree" with that language? Presumably, judges of all stripes sometimes put their name on something they do not fully agree with. We have no idea what the members agreed to. And there is no guarantee they still hold those views, or would sign a similar opinion today. Still, there is at least an implication that this use of "agree" has some greater meaning. Maybe it does. Maybe it doesn't. But because Shaw and Bash were behind the curtains, we cannot know what they know.
I have some pause with the notion that law clerks can become the expositors of the opinions they helped draft. Their role lends them a credibility that they should not tread on. The authors admit that their views are not "authoritative."
Justices don't control the way their writings are interpreted by later courts and other institutions; certainly law clerks don't. So we're not asserting that our views on Heller are in any way authoritative. But we know the opinions in the case inside and out.
Of course. But many people know the case inside and out. I've read Heller more times than I can count. The reason the NYT gave Shaw and Bash this byline was because of their personal work.
Moreover, the timing of this piece is even more problematic in light of the leak. At this moment, law clerks should not take any step to publicize their personal roles inside the Court. Do not glamorize the aura of the elite. This op-ed, whether deliberate or not, sets a precedent for the clerks assigned to Dobbs to later interpret that decision.