When Court Clerks Rule-(eye opener! SCOTUS clerks often pen decisions of justices!-eg.Roe v.Wade)

LA TIMES.COM ^ | MAY 29, 2005 | David J. Garrow,

[CHARLITE]

The recent release of Justice Harry A. Blackmun's private Supreme Court case files has starkly illuminated an embarrassing problem that previously was discussed only in whispers among court insiders and aficionados: the degree to which young law clerks, most of them just two years out of law school, make extensive, highly substantive and arguably inappropriate contributions to the decisions issued in their bosses' names.

Even Roe vs. Wade, Blackmun's most famous decision, which legalized abortion nationwide in 1973, owed lots of its language and much of its breadth to his clerks and the clerks of other justices. A decade later, when Blackmun's defense of abortion rights shifted from an emphasis upon doctors' medical prerogatives to women's equality, it was his young clerks who were responsible for his increasingly feminist tone.

Blackmun's files, which span his tenure on the court from 1970 to 1994, also show that in some cases over the years, clerks introduced explicitly partisan political considerations into the court's work (once urging that an abortion ruling be issued before a presidential election, so that women could "vote their outrage" if Roe vs. Wade was reversed). Sometimes clerks' unrestrained ideological biases were starkly evident (as when one referred to Justice Antonin Scalia as "evil Nino" in a memo).

According to "Becoming Justice Blackmun," a new book by New York Times Supreme Court correspondent Linda Greenhouse, even Blackmun's most well-known line — "From this day forward, I no longer shall tinker with the machinery of death" — was not his own. That 1994 dissent denouncing capital punishment was proposed by one clerk and written by a second. Blackmun accepted virtually every word of the clerk's draft.

[CHARLITE]

Ping!

[Michael.SF.]

Has this not been standard practice for many years?

The Justices are more like the Editor of newspaper, in that his name is on it, but others do the leg work. They serve to guide, not sit at a computer and type.

[Enterprise]

"Congress should put aside partisan warfare over the federal judiciary long enough to enact a reform — a limit of one law clerk per justice"

Fat chance.

[Keith in Iowa]

>>>The Justices are more like the Editor of newspaper, in that his name is on it, but others do the leg work. They serve to guide, not sit at a computer and type.

A better analogy would be that the Justices are like TV Presenters...and the clerks are what the writers and producers to TV types...

[TontoKowalski]

The only thing in the article that surprises me is the partisan considerations brought forward by the clerks. I would think that would have been seen as evidence of preconceived bias, and would have been grounds for immediate dismissal.

The fact that clerks draft the opinions, after getting the gist of what the Justice intends, is what I have always assumed. I draft important papers for my boss, some of which he signs without changing a word.

[Blood of Tyrants]

But you would THINK that the arguments that are used in the decision are at least HIS!

[colorado tanker]

Having the clerks do research and a first draft is routine. But it looks like Harry relied on them more than he should have. Just confirms what I've thought for a long time - Harry wasn't the sharpest knife in the drawer. He just repeated stuff he knew would get him in with the law professoriate and MSM.

[Michael.SF.]

But you would THINK that the arguments that are used in the decision are at least HIS!

They might very well be. As i understand the process, and I am no expert, these issues are discussed before hand, a clerk is assigned the task of writing the opinion and consultation with his/her Justice is a fairly regular occurrence. This of course varies from Justice to Justice.

[NJ_gent]

"One last example: the important 1985 federalism case of Garcia vs. San Antonio Metropolitan Transit Authority. According to Greenhouse, after the justices had privately voted, 5 to 4, and after Blackmun had already been assigned to write the majority opinion, one of his clerks informed him that he — the clerk — disagreed, and would rather draft an opinion switching Blackmun to the side of the four dissenters. Blackmun acquiesced, the minority became a majority, and constitutional law made a major, unexpected turn."

Wait, so you mean to tell me that judges on the Supreme Court can change their minds after talking with other people? Oh my, how is such a travesty legal?! [/sarcasm]

[Alberta's Child]

I suspect a lot of Americans would be shocked at just how mediocre many U.S. Supreme Court justices are. Almost as mediocre as U.S. Senators, for the most part.

[Labyrinthos]

The only thing in the article that surprises me is the partisan considerations brought forward by the clerks. I would think that would have been seen as evidence of preconceived bias, and would have been grounds for immediate dismissal.

Of course the clerks have political bias, just like their bosses. That's one of the reasons a judge hires a particular clerk. Do you think that Justice Thomas would have hired Laura Ingram if she was a socialist, communist, leftist?

[kennedy]

I guess it comes down to a question of who you would prefer writing laws, 80+ year old judges who have been appointed for life or 25 year old clerks fresh out of law school.

Personally, I would prefer to leave writing laws to elected legislatures.

[pogo101]

Personally, I would prefer to leave writing laws to elected legislatures.

Why, then, you just must be "out of the mainstream" and "extreme"!

[Bahbah]

Has this not been standard practice for many years?

Sure. It's not a dirty, little secret. It's not a secret of any kind. But it is the judge who tells the clerks what the outcome of the decision will be, and no responsible judge does not read and carefully edit and rewrite as necessary all of these opinions. It is a point of pride if the opinion writes as a clerk makes it into the books virtually untouched, but that just means you understood what the judge wanted and wrote it well.

[TontoKowalski]

Of course they have a bias. However, to use that bias to suggest things like the timing of decisions to coincide with Presidential elections (with the intent of making segments of the electorate angry enough to sweep your Party into office) is more than just being of the same judicial philosophy as your boss.

[supercat]

Compare the syllabus of U.S. v. Miller with the text of the actual decision and the power of the clerks becomes apparent, especially when at least one other court IIRC seems to have cited the syllabus to U.S. v. Miller in making its decision.

[bubman]

Ping

[Texas Federalist]

The Justices are more like the Editor of newspaper, in that his name is on it, but others do the leg work. They serve to guide, not sit at a computer and type.

Correct. This is a stupid article. The fact that Supreme Court justices do not write all their own opinions - just like Presidents don't write all their own speeches - is hardly news. It is their ideas coming out in the opinions.

[bpjam]

You can tell the real tale of a judge by who they have clerking for them. Its a better indicator that almost any other as to where they draw their support from and whom they are allegiant to.