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.