The Volokh Conspiracy
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What Did A Young John Roberts Contribute To Chief Justice Rehnquist's Opinion In Dames & Moore v. Regan?
Probably not very much.
Way back in 2014, I wrote about a very special clerk tree. A young John Roberts clerked for Chief Justice Rehnquist in 1981 when Dames & Moore v. Regan was decided. And a young William Rehnquist clerked for Justice Jackson in 1952 when Youngstown was decided. The linkage of those Justices, and cases, seemed profound. In Bank Markazi, Chief Justice Roberts corrected Justice Ginsburg's account of Dames & Moore.
(Roberts's co-clerks were Dean C. Colson and Robert B. Knauss.)
For some time, I wondered what Roberts actually contributed to the Dames & Moore decision.
In 2017, I emailed Lyle Denniston about the drafting of the opinion. He sent back a fairly detailed response, which I have uploaded here. In a follow-up email, Lyle said that Roberts likely had "minimal" input on the opinion in light of the time pressures.
In a new story, Joan Biskupic writes that Roberts "helped produce" the majority opinion in Dames & Moore. She adds, "Working with Roberts and two other clerks, Rehnquist produced the first draft within two days and sent it around to the other justices that Friday."
Is there anything in the papers to show exactly what Roberts did to produce the first draft? I haven't seen it.
Biskupic also focuses on a weird tangent story. She writes that "Roberts himself was in the last frantic days of his clerkship and trying to study for an upcoming bar exam."
The July bar exam is held at the end of the month. (I read that it was July 29, 1981, but I cannot confirm that date.) Were Supreme Court clerks, scrambling to wrap up the end of the Supreme Court term, really studying for the bar in June and early July? Roberts sat for the D.C. Bar exam, which historically was known as one of the easiest in the country. Roberts is also a genius. Would he seriously be distracted from the most important job of his career for a pass-fail exam?
I can guess why Biskupic went down that road:
For his part, Roberts tried to catch up on his studies for the bar exam that month and prepare for a job in the Reagan administration beginning in August.
His study partner for the District of Columbia bar exam happened to be a fellow clerk, from the Brennan chambers that term: [Michael] McConnell, now the lead counsel suing Trump over the tariffs.
Were Michael McConnell and John Roberts really studying together for the bar before the term concluded?
Dames & Moore was argued on June 24. Chief Justice Burger made the assignment to Rehnquist, and circulated this memo:
"To 'get the show on the road' Bill Rehnquist has agreed to get an opinion in our hands by noon Sunday, next – if not before."
Right on schedule, Rehnquist delivered the draft on Sunday, June 28. And the opinion was announced on July 2.
For whatever it is worth, that period was very busy. On June 25, Rehnquist delivered the Court's majority opinion in Rostker v. Goldberg. Haig v. Agee was decided on June 29, 1981. On July 1, the Court decided a pair of CrimPro decisions: Robbins v. California and NY v. Belton. On July 2, the final day of the term, the same day as Dames & Moore, came the fractured decision in Metromedia v. City of San Diego.
