Justice Harlan’s Law Clerk on Cohen v. California Provides Inside Account

The March 2012 issue of the William and Mary Bill of Rights Journal has an unusual article by Thomas Krattenmaker, Looking Back on Cohen v. California: A 40-Year Retrospective From Inside the Court. Krattenmaker writes:

During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan’s law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.[fn8]

[fn8] Harlan added the first paragraph of the opinion, quoted in full in, supra note 1 and accompanying text, and discussed infra, at note 78. He also added the phrase “within established limits” to a sentence that read in the draft: “These are, however, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.” Cohen, 403 U.S. at 25. I continue to believe that the first paragraph is the best part of the opinion. On the other hand, I did not, and still do not, understand why the phrase “within established limits” improves the opinion. Given Harlan’s natural tendency to avoid sweeping statements that might be susceptible to an absolutist reading, I think the best interpretation is that the addition of this phrase was simply “Harlan being Harlan” (or correcting a clerk’s oversight, if one prefers!).

One other thing about the opinion will puzzle me forever. When the Justice told me that I was to write an opinion finding Cohen’s conviction could not stand under the First Amendment, he told me to make the opinion “Elizabethan.” I had no idea what he meant and still do not. Harlan was quite an Anglophile, so his direction did not startle me. But, unless I got that part right by accident, how an opinion in this case in 1971 from the Supreme Court of the United States might be “Elizabethan” eluded me. Shakespeare frequently employed bawdy language and allusions, but I knew Harlan did not want an opinion peppered with obscenities. I took him to mean something like, “Tend to err on the side of using florid and fancy phrases, and avoid vulgar or common words when writing about this vulgar thing.” Many people have asked me where the phrase, in Part II of the opinion, that “it is . . . often true that one man’s vulgarity is another’s lyric,” id., originated. I suspect that was me trying to be Elizabethan!

Regarding the breach of law clerk confidentiality required to write the article, Krattenmaker writes:

I have no doubt that I was under a strict cloak of confidentiality when I had these conversations [with Justice Harlan] and that my obligation to keep quiet about them stayed with me after I finished my clerkship. I also believe, however, that this “law clerk privilege” does not survive forty years later, when all the participants are dead, and most of the participating Justices have left their working papers pertaining to this case in public libraries. At some point, it seems to me, the values of unobstructed historical inquiry outweigh the privacy or secrecy interests of deceased Justices.

Thanks to Adam Liptak for the link.