I thought Mr. Garrow had learned his lesson. Apparently not.

David J. Garrow authored a cover story in the most recent issue of Legal Affairswhich takes the opportunity of the release of Linda Greenhouse's Becoming Justice Blackmun to lambast J. Blackmun for allowing his clerk's to dictate the Court's opinions in controversial cases. Mr. Garrow's tone, approach, and "methodology" was seen as so questionable in both its intent and substance as to warrant a near-retraction by the periodical's chairman.

Sunday's LATimes, however, found Mr. Garrow once again spewing half-truths and hyperbolic observations in the form of an op-ed. I would like to take the opportunity to point a few problems with Mr. Garrow's piece in the hopes that we can all write off this gentleman's take on J. Blackmun and -- as his newest contribution attempts to address -- clerkships at the U.S. Supreme Court generally.

One supposition that Mr. Garrow makes which I believes deserves comment is that J. Blackmun's approach to abortion cases "shifted from an emphasis on doctors' medical prerogatives to women's equality" which constitutes an "increasingly feminist tone." Mr. Garrow, of course, attributes this shift to "his young clerks." Mr. Garrow's so-called analysis does not address the differences in the legal questions which were at issue in the cases before the Court in 1973 and "a decade later." Mr. Garrow's denies by exclusion the thought that perhaps the disparate approaches reflect the readily apparent differences in the questions the Court was required to answer by virtue of the cases themselves, the facts at issue, and the arguments made by the opposing sides. Instead, Mr. Garrow places the shift solely on the shoulders of the clerks's political ideological views. I would also add (as has already been mentioned in response to his perspective) that Mr. Garrow's "methodology" prevents him (and his reader) from knowing the nature of instructions from J. Blackmun to his clerks before they prepared drafts. Looking only at the finished product, Mr. Garrow's ability to assume that the clerks created such logical and legal arguments on their own is greatly eased. However, that is not necessarily the case. Mr. Garrow's self-imposed position prevents him from considering that J. Blackmun instructed the clerks on their responsibilities.

The bottom line must be that Mr. Garrow looks at the outcome of crucial cases and, disagreeing with the viewpoint expressed, assumes that J. Blackmun was negligent in allowing young clerks to legislate from the bench and manufactures a stirring tale to support his allegations.

One of the most blatant oversights of Mr. Garrow’s op-ed (and Legal Affairs article) is on the topic of the “partisan” nature of J. Blackmun’s clerks. He selects mention of J. Scalia as “evil Nino” in an internal memo to signify the clerks’ “unrestrained ideological biases.” Over the past few years, we have seen “unrestrained” bias from the Supreme Court in the form of ideology and partisanship. One need not look further than Bush v. Gore.

While describing a Supreme Court justice as “evil Nino” may be harsh, inappropriate, and unnecessary, the viewpoint expressed is not necessarily ideological. While such a nickname may be a sign of declining decorum it is not necessarily blatant “partisanship.” If it is “partisan” per se, where is mention of J. Scalia’s party affiliation or even party leanings? In fact, Mr. Garrow’s inference is itself a perfect example of the very “unrestrained ideological biases” which exist throughout his “analysis” of the happenings in the Blackmun chambers.

Mr. Garrow’s most honest statement is the most damning of his efforts. He states, “Blackmun’s papers are particularly illuminating because we know so little about what goes on behind the closed doors of the Supreme Court.” Very true, Mr. Garrow. Furthermore, we still know very little about both what went on in Blackmun’s chambers and, more importantly, what went on and goes on in the chambers of all other justices. Mr. Garrow not only pretends to know the “whole story” of J. Blackmun’s jurisprudence by selectively “analyzing” Ms. Greenhouse’s analysis of the J. Blackmun papers (itself a selection) but he attaches himself to the argument that this is an aberration. Mr. Garrow closes his op-ed by implying that the troubling matter is not the viewpoint espoused by the clerks and/or J. Blackmun but rather that any clerk for any Supreme Court Justice would have such authority. However, the entirety of his “analysis” does not support this statement.

If that was the case, why does Mr. Garrow specifically address the viewpoints – political and ideological – of the Blackmun clerks. Mr. Garrow’s approach is not limited to the role of clerks but rather the role of the political viewpoints of particular clerks on matters of a particular controversy (namely, abortion and privacy). The controversy at issue is one which, apparently, is most controversial not for the clerks but for Mr. Garrow himself. Mr. Garrow’s claims that ideological clerks have too much say in the adjudication of cases heard by the U.S. Supreme Court would carry more water if it was not so ideological itself. One wonders, for instance, where Mr. Garrow would stand if he were to write (as Vanity Fair did, download in two parts at this link) on the role of intensely partisan clerks for “evil Nino” in the processing of Bush v. Gore.

Next, Mr. Garrow’s op-ed addresses an apparent decline in Supreme Court caseload since 1945. Really? The nation has more than doubled in size, the culture has grown exponentially litigious, and with every case filed the body of case law increases and, therefore, the complexity of researching and processing each cases increases as well. But, Mr. Garrow still attempts to adulterate the statistics to claim that a justice’s workload has decreased. He seems to be disturbed that, meanwhile, the number of clerks afforded to each justice has increased to 4 (except for C.J. Rehnquist who hires only three). Surely, Mr. Garrow argues, this is wasteful and the root cause for clerical activism (the newest attack on the judiciary). His solution? Congress should pass a law (of course, the new conservative solution to all problems) that limits Supreme Court justices to one clerk. Why? Because we cannot trust the Supreme Court to decide anything for itself even staffing needs and other personnel issues.

Mr. Garrow’s oversimplification of the relationship between a justice, his/her clerks, and the law extends to an example case, handpicked by Mr. Garrow to illustrate the immense power of a Blackmun clerk who “disagreed” with the justice and wrote a draft opinion to which J. Blackmun ultimately gave his name. Mr. Garrow’s account of the situation labels this action “acquiescence” rather than acknowledging that (1) the “disagreement” may have been founded in case law rather than a personal political preference on the part of the clerk (which is what Garrow implies); (2) not all justices surround themselves with like-minded clerks for this very reason: a dissenting voice may add much-needed perspective when considering difficult legal questions rather than deciding cases in the bosom of an echo chamber and this should be encouraged rather than attacked; and (3) it is admirable – no, heroic – for a Supreme Court justice to change his/her mind when presented with a valid argument rather than viewing every issue with a predetermined viewpoint and then stubbornly burying one’s head in the proverbial sand to avoid the appearance of integrity.

Justice Blackmun and his clerks should be commended rather than sullied for the very reasons that Mr. Garrow gives as his rationale for overhauling the judicial branch by congressional action: young legal minds may be young but, at one time, so too were the minds of Justices Marshall (both), Jackson, and, yes, Rehnquist. An attempt to argue that these formidable figures in American legal history would have been better off resigned to copy editing and cite-checking opinions rather than honing their legal skills and philosophy is a bold expression of ignorance. You may disagree politically or ideologically with a court decision or two; but an argument that one’s age restricts one’s ability to think clearly about the law should be an indictment of the adequacy of modern legal education rather than a lone Supreme Court justice’s approach to the next generation of legal minds.
- posted by C @ 5:25:00 PM