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Monday, May 09, 2005

Thoughts on "Becoming Justice Blackmun"

My law school's library was good enough to forward to me Linda Greenhouse's new book, Becoming Justice Blackmun, which I read this weekend.  In light of the recent meshugoss over David Garrow's description of Justice Blackmun's papers, it's an interesting read.  I don't think it's really at cross-purposes with Garrow's allegations, although its focus and tone are different, so it doesn't precisely buttress Garrow either.  It quotes some of the same arguably intemperate language in clerk memos, so in that sense it supports his claims.  But it doesn't take the view that he was disengaged, or that he let his clerks run the show, which is a major thesis of Garrow's article.  If anything, it suggests he was a fairly close monitor of the cases and the other Justices' votes.

A few other observations on this book, which has already been widely reviewed.  First, it is a modest book -- in its aims and in its achievements.

It is not a thorough-going biography, but simply a record of fairly short-term research into the Blackmun papers at the Library of Congress.  And in its focus, within those papers, on abortion, capital punishment, and gender equality, it slights any number of other areas of inquiry into Blackmun's work on the Court.  Even where it looks more broadly, as in its brief discussion of commercial speech, it sees things through the lens of abortion (as, indeed, Blackmun himself might have done). 

In her NYT Book Review yesterday, Laura Kalman remarks that Blackmun's daughters "shrewdly decided to give" Greenhouse "a two-month head start" in looking at the papers for a series of articles in the Times, which evolved into this book.  Shrewd it was -- that special access, along with the short deadline, likely contributed to fairly positive spin Greenhouse gives to Blackmun's judicial career, in contrast to Garrow's critical examination.  (Although the heat of Garrow's discussion might also be attributed to the short span of his own review of the Blackmun papers.  It takes time to come to a properly milquetoast assessment.)  And it decidedly reads like a journalist's book-length work: if the content will put no one to sleep, the style won't keep anyone awake either.

Second, Blackmun's papers appear to continue to justify the past description of him as sensitive -- unduly sensitive, I think -- to slights.  To take an example, Blackmun complains at one point to Burger about having been assigned too few assignments to write the majority opinion.  Although he has missed an argument session during that term, so has Justice Brennan, but Brennan has more assignments.  Nevertheless, the variation is small: Blackmun has ten assigned opinions, and the highest number of assignments is 14, for Burger and Stevens.  Blackmun does not simply urge more assignments, but says the low number "makes me feel somewhat humiliated not only personally, but publicly."  At another point, in urging the Court to use an abortion case as a vehicle for overturning Roe v. Wade, the S-G's office cites Blackmun's opinion in the Garcia case, which had overturned a 9-year-old precedent, as evidence that the Court has not hesitated to overrule prior interpretations of the Constitution.  Blackmun writes that this citation "is a personal attack on me."  These kinds of reactions are liberally in evidence throughout the book.  (I should acknowledge the possibility that the S-G's office did intend the cite as a pointed reference.  If that were true, it would suggest that Blackmun was not the only one with too personalized a view and/or too much time on his hands.)

Third, the book strikes me as again confirming that too many members of the Court, or their clerks, tend to personalize the issues before the Court, or to engage in nose-counting with relatively little regard to questions of principle.  A decidedly trivial example of this is Blackmun's description of the gathering votes on a pending abortion case: "The 5 coalesce."  More pointedly, on the same page of the book he refers in his notes to three Justices as "the Reagan crowd cabal." 

The description may be accurate (as might be a hypothetical reference, in a conservative Justice's notes, to "the Warren Court relics").  But it suggests a fairly consistent view of the Court and its work as reducing to people and politics.  Perhaps my experience was unusual, or I was naive, but I didn't see much of this kind of behavior in my own clerkship on a federal appeals court.  (It may also have something to do with the geographic dispersal of appeals court judges, unlike the single location of the Court and its Justices; the variation in panels on federal appeals courts; and the greater number of routine cases that face the lower courts.)  As I have mused in this space before, these accounts lead me to wonder whether the Supreme Court clerkship selection process in some way favors folks who are not only legally brilliant, which I will gladly assume they all are, but who also take a somewhat unduly personalized, politicized, and combative view of the work of the Court.  I don't know that this is so, and certainly that kind of clerk will be overrepresented when journalists discuss the historical record, given the more quoteworthy contents of their internal memos.  But there are reasons to think that it could be true: these people might stand out more in the clerk hiring process, and clerk selection committees and sitting clerks might perpetuate the trend. 

In any event, the personalized nature of the clerks' discussion of the cases, and of Blackmun's own notes, is striking.  For all that the Court and its observers are eager to emphasize the crude reductionism of referring to judges according to terms like "liberal" or "conservative," or according to the party of the President who appointed them, this book does not do much to refute the use of those categories.

Fourth, the book casts an interesting light on Garrow's discussion of the intersection between the Court and electoral politics in the Casey case, and whether Blackmun was unduly concerned with timing the case in light of the 1992 election.  In Greenhouse's account, the parties that most heavily weigh the politics of the case are the litigants, the abortion rights groups: they hasten their preparation of the cert. petition in Casey in order to get it before the Court, so that the election can "be a referendum on the right to abortion."  (Further evidence that no party should take seriously the political judgments of its single-interest constituents.)  At that point, the question is whether the Court should grant cert. immediately, or hold it over until the next Term, such that any decision won't issue until after the election.  (As it turned out, the Court did grant cert. in the 1992 Term.)

In this scenario, since the petition is already before the Court, it would be reasonable to suggest that delaying argument would be improperly political, and Blackmun's clerk apparently concluded that Rehnquist and O'Connor were thinking along these lines.  The non-political thing to do would be to simply vote to grant or deny cert., without regard to timing.  So do Blackmun's chambers emerge with clean hands on this point? 

No.  Even Greenhouse's account suggests that his clerks have the election on their minds: she quotes Molly McUsic's memo urging an immediate hearing, so women will have "the opportunity to vote their outrage."  And Greenhouse omits another part of the memo discussing the likelihood of a new President appointing pro-choice nominees, as well as a subsequent memo by Stephanie Dangel suggesting that the famed three-judge opinion in Casey might "have the effect of removing abortion from the political agenda just long enough to ensure the re-election of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe."  In light of all this, when one reads that the Blackmun clerks drafted a "dissent to relisting," erroneously anticipating that the Court would delay hearing the Casey case, and that this draft intoned that "this Court stands less tall when it defers decsision for political reasons" [or, in a  further quote from the Garrow article, that "[w]e should conduct our business above the fray of politics"], one must exercise the sovereign prerogative of laughter.

This last set of materials also suggests that, even if Justices do take politics into account, they would be foolish to credit either their own political judgments or those of their clerks.  The 1992 election did not turn on abortion, of course, and I find it unlikely that any would, although it might influence turnout numbers.  Perhaps a slim margin of well-educated women bearing a substantial resemblance to Justice Blackmun's clerks would "vote their outrage" on this issue, although more likely at the Senate level.  But that's not much of an electoral lever.  In all of this, I detect again the tendency of lawyers and law clerks to overestimate the importance of their role, and the role of law, in the national political sphere.

A fifth related point one can take from the book is that Justices -- or at least this one -- tend to fare poorly at predicting the effects of their rulings.  Blackmun assumed that the dust would settle on an abortion decision, and the Court would return to a subsidiary role, following the next session of the state legislatures.  Greenhouse rightly calls this assumption "almost poignant in [its] naive optimism."  Just as the Justices or their clerks ought not take their political prognostications too seriously, so they ought to be humble about their powers of prediction as to the empirical effects of their rulings.  Similarly, commentators who line up shortly after rulings to praise the Solomonic way in which this or that opinion balances the social interests involved, or to decry its disastrous consequences, are generally about ten years, a ream of social science evidence, and one Ph.D. too early to make any such judgment.

Finally, and by way of returning from broader observations to the book itself, I think that Greenhouse's title thesis -- that Harry Blackmun "became" Justice Blackmun as a result of Roe and the reactions to that case -- is either unproved or unfortunate.  In its narrow focus on a few issues and on a limited (although voluminous) set of materials, the book does not completely succeed in describing a "Justice Blackmun," with a coherent set of views, let alone in demonstrating that this character emerged exclusively or even primarily from Roe and its discontents.  Greenhouse may be right, but I don't think her book proves her thesis (which is fine, because the thesis itself is, I suspect, merely connective tissue for a look at some very interesting papers).  If she is right, however, then that's unfortunate for Blackmun, because on this scant evidence it would mean he saw the rest of his judicial career as an effort to defend and justify Roe, through a steadily shifting set of justifications and permutations, and saw too many other cases primarily through the abortion lens.  But I think the problem here lies more with the scant nature of the evidence than with the Justice himself. 

Still, if this is not a must-read, it's a fine effort and should encourage further toiling in the vineyards of the Blackmun papers.                                     

Posted by Paul Horwitz on May 9, 2005 at 03:32 PM in Books, Law and Politics | Permalink

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» Becoming Justice Blackmun: from The Volokh Conspiracy
Over at PrawfsBlawg, Paul Horwitz has an insightful review of the new Linda Greenhouse book on Harry Blackmun. [Read More]

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» Becoming Justice Blackmun: from The Volokh Conspiracy
Over at PrawfsBlawg, Paul Horwitz has an insightful review of the new Linda Greenhouse book on Harry Blackmun. [Read More]

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Not surprising look at Justice Blackmun from Greenhouse, whose coverage of the SCOTUS has an almost exclusively political tilt. You expect that every article there's an implicit (R) or (D) after each Justice's name and you can guess what she prefers. For all of her faults, Dahlia Lithwick at Slate at least attempts to analyze the Court's jurisprudence. Greenhouse always takes the political short cut; her book apparently does the same thing.

Posted by: steve bier | May 9, 2005 9:33:32 PM

I think it's becoming very evident that Blackmun was one of the very worst Justices since the Truman appointees. I favor abortion rights, but reading Blackmun's utterly shameless and self-serving opinion in Casey even today should make anyone who really believes in a non-political Court nauseous. And it is clear now that Blackmun checked his clerks' citations in their opinions. How shameful. In the Brethren as well as Jeffries' Powell biography Blackmun's opinions are derided more than any other justice's; Justice White is said to comment that he'd fire an associate
who wrote one of Blackmun's opinions. Blackmun's crudely political tenure stands as an unfortunate one.

Posted by: NP | May 10, 2005 5:07:19 AM

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