I just read David Garrow’s piece on Justice Blackmun and his clerks, and I have to tentatively disagree with my co-blogger Jim Lindgren’s characterization of Garrow’s piece as “fair.” My initial reaction is that Garrow’s piece seems rather unfair. The fault may lie in the length requirements of a magazine article; perhaps Garrow has a lot more evidence for his conclusions but couldn’t pack it all in to such a short piece. But based on his Legal Affairs essay alone, I don’t think Garrow has made his case.
Garrow offers three basic reasons why he thinks Justice Blackmun is guilty of “a scandalous abdication of judicial responsibility.” First, law clerks to Justice Blackmun wrote memos to Blackmun that Garrow finds insufficiently deferential in tone. Second, in several key cases, Justice Blackmun adopted the recommendations of his law clerks. Third, Justice Blackmun made statements indicating his lack of understanding of one his most prominent opinions.
I don’t think the evidence quite adds up, though. The tone of a law clerk’s memos seems a weak proxy for whether the Justice is doing his job. Some bosses like their employees to be blunt and assertive; others like them respectful and deferential. I don’t think that preference corrrelates with anything important. Similarly, the fact that Justice Blackmun accepted his clerks’ recommendations in a few key cases doesn’t tell us very much. It would be one thing if a clerk kept changing his or her recommendation, and Justice Blackmun flip-flopped along with the clerk. But my understanding is that Justice Blackmun tended to hire very talented clerks who shared his view of the law; given that, the fact that Blackmun accepted the advice of his clerks in a number of cases isn’t particularly surprising.
The most persuasive evidence Garrow finds that Blackmun had “abdicated” his duties are the rather puzzling comments Blackmun made in 1995 about about his 1986 dissent in Bowers v. Hardwick. Blackmun’s law clerk on Bowers was Pam Karlan, now a very distinguished professor at Stanford Law School. Garrow writes:
In his 1995 oral history, [a series of interviews with former Blackmun clerk Harold Koh], Blackmun recalled that, in Bowers, Karlan “did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct.” . . . . Did Blackmun’s position in Roe [v. Wade], Koh asked, lead him to the Bowers dissent? “Never thought about that one, but maybe they go together,” Blackmun responded. . . . In another interview five months later, Koh again asked about Bowers: “Did you see it as an explicit link to Roe v. Wade and the right-to-privacy arguments in Roe v. Wade?” Blackmun answered, “No, I would hesitate to say that I did.”
It’s a troubling anecdote, as you would hope Blackmun would be more engaged and self-aware. But I find it hard to go from this one anecdote to a general conclusion that Blackmun had abdicated his duties. By the time of the interview, Blackmun had retired from the Court, was in his late 80s, and was recalling an opinion written a decade earlier; I’m not so sure it’s fair to construe these comments in as negative a light as Garrow does.
Garrow may be on to something, but I don’t think the evidence in his Legal Affairs piece quite measures up to his rather sweeping claim.
UPDATE: Mark Tushnet and Jack Balkin offer some interesting thoughts.
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