An Enduring Myth

Monday, April 18, 2005

An Enduring Myth

At least since publication of The Brethren in the 1970s, and probably for a long time before that, there has been suspicion in some quarters that the real power at the Supreme Court lies with the law clerks. The image of senescent justices being manipulated by brilliant clerks probably comes more from the clerks' own self-serving recollections--The Brethren, after all, was based on interviews with the clerks. It's not as if law clerks are a humble bunch. I was at the ceremony when the portrait of Robert Bork was presented at the D.C. Circuit. Bork was a "feeder" judge, most of whose clerks went on to clerk at the Supreme Court. He said of his annual cadre of three clerks: "I didn't mind when the clerks considered themselves to be one-fourth of a federal judge; what worried me was when they thought they were one-third."

Anyway, there's a new article out on that old theme, this time arguing that Harry Blackmun's clerks had too much influence. The article is based on a reading of Blackmun's papers, which were released not long ago; the author deliberately didn't talk to the ex-clerks, thereby avoiding The Brethren scenario. That the clerks' written memos were very partisan in tone, I don't doubt; but to suggest that Blackmun didn't know exactly what he was doing is silly.

Blackmun's clerks contend that his chambers was no more partisan on issues like abortion and the death penalty than any others; it's just that he insisted his clerks communicate in writing, so the more vituperative stuff that other clerks would have said out loud is in Blackmun's case part of the written record. Maybe so, maybe not--I have my doubts, but then again, they were there.

But partisanship is one thing. Leading the Justice around by the nose is another. And as for partisanship, I have to say this quote from the article's author made me laugh out loud.
"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."
Maybe the file won't reflect it; but if it doesn't, it will be simply because the partisanship wasn't written down. Even before some of the liberal clerks broke silence to talk to a reporter about the "inside story" of Bush v. Gore (I joined conservatives who condemned the clerks for violating their pledge of confidentiality), the extreme partisanship among the law clerks of the October 2000 Term was no secret. I'm not particularly close to that group--I was never a Supreme Court clerk and I'm a bit older than they are--but even I'd had the opportunity to hear about the triumphalism of the Federalist Society clerks, the rage of the liberal clerks, the fact that internal events at the Court became segregated into liberal-only and conservative-only for the rest of the Term, and so on.

The Scalia clerks not partisan on Bush v. Gore? That's ridiculous.

But it doesn't mean they had too much influence over the Justice. Scalia would have written the same (indefensible) decision on the stay application even if he'd had no clerks at all.

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