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Thursday, February 20, 2020

Thurgood Marshall and James Patterson: A Comment on Tushnet on Dane

Mark Tushnet, the only blogger for whom I would be willing to break my "characteristically thoughtful" rule (especially for his posts on legal scholarship and his occasional comments on specific articles), adds a "supplemental note" on the discussion of Perry Dane's piece on law clerks and jurisprudence, about which Howard and I have written our own posts below. Here I add a supplemental "note" to Tushnet's supplemental note. Let me first repeat: Read Dane's piece. It is provocative and productive of new ideas, as good scholarship should be, and at times (as in its discussion of "open secrets" and American clerk culture) quite timely. Tushnet's intervention is narrow but, I think, gives rise to interesting questions of its own.

Tushnet writes:

A short and therefore distorted version of Dane's argument is that the appearance of the judge's name on an opinion acts as an "icon" or signal about something--on my reading, about the fact that the opinion should be understood to be part of a larger project of developing "the judge's" vision of the law that is consistent across large-ish domains and over large-ish periods of time (the "ish's" inserted to show that a person's views and understanding of the relevant domains can change without casting doubt on the proposition that the person is pursuing a project). But, Dane worries, how much confidence can we have that the words published under the judge's name are part of such a project when they are produced by an ever-changing population of law clerks?

To this he adds two pieces of recollection about serving as Thurgood Marshall's law clerk. First, "because the clerks knew that post-drafting review would be light, we were extremely careful not to send a draft to the judge before it had been carefully vetted by all three of us." Second and more important, 

[W]e operated with a strong norm of what (as I recall) we called "personal stare decisis." That is, we thought that we should draft opinions that were as consistent as we could make them with the judge's prior decisions. (Note that this was Marshall's fifth year on the Court, and he had a small-ish relevant body of decisions from his time on the Second Circuit.) Clerks following the norm of personal stare decisis would make the opinions published under the judge's name part of the Dane-like project.

I think this is a pretty common practice. I read it for present purposes in a descriptive and not normative fashion. Tushnet is right that it fits in with Dane's account. Insofar as it suggests that there are some institutional norms that help tie the corporate practice of opinion-writing to the project pursued by the "judge," it may help address Dane's question about how much confidence we should have in the continuity and reliability of that project. Inasmuch as Dane offers his piece as a "catalyst" for thinking about jurisprudential issues concerning the courts (and the other branches), however, and concludes by noting rather than trying to resolve the "deep and uncomfortable questions" raised by our practices, I think Tushnet's observation itself can be a catalyst for more "uncomfortable questions." 

In reading Tushnet's post, I was reminded of James Patterson--and "James Patterson." Patterson is the "author" of scores of best-selling books. They "all share stylistic similarities." And "[t]o maintain his frenetic pace of production, Patterson now uses co-authors for nearly all of his books. He is part executive producer, part head writer, setting out the vision for each book or series and then ensuring that his writers stay the course." According to one profile, "Patterson will write a detailed outline--sometimes as long as 50 pages, triple-spaced--and one of his co-authors will draft the chapters for him to read, revise and, when necessary, rewrite. When he’s first starting to work with a new collaborator, a book will typically require numerous drafts. Over time, the process invariably becomes more efficient." Patterson-as-author has thus become the "James Patterson" brand, a brand that draws many millions of readers. Unsurprisingly, given the tradition of viewing a book as "the product of one person’s imagination and sensibility, rendered in a singular, unreproducible style and voice," his practice has drawn criticism and derision. But it is eminently successful, and I assume (not being one of his readers) that some care is taken to make sure that each book is sufficiently within the stylistic universe of "James Patterson" to maintain a consistent brand and retain readers' trust. If each book was radically different, "James Patterson" would be less a unique brand than a sort of retailer of varied books. Note that his frequent "co-authors" develop a comfort with his style, so that "the process invariably becomes more efficient." It is not hard to imagine the next step, in which Patterson departs this vale of tears and a committee of those co-authors ensures that "James Patterson" is still putting new books in airport bookstores every month or two. Many popular authors have, in this manner, been remarkably productive after they stopped breathing.

How different is the living "James Patterson, Inc." enterprise from the "Thurgood Marshall" enterprise? Not very much, it seems to me. Indeed, on Tushnet's account and given the description of Patterson's process, there may be greater quality control and more authorial personality in the Patterson model. That model and that approach to books is not to everyone's taste, but as a process it appears to work. Is there anything wrong with it? Is there anything more or less wrong with the Marshall "project" that Tushnet describes than with the Patterson enterprise? Maybe not. (And it is worth asking again, to repeat the aside I offered in my first post: If there's nothing wrong with it in these cases, why exactly would it be wrong if applied in a similar fashion to scholarly writing, especially if, as with Patterson, the academic whose name is his or her brand provides the idea and the outline and reviews the "product" carefully?)

 If one thinks, in keeping with a long liberal and Romantic tradition that has been explored elsewhere, that a key element of true literature, and perhaps of human life more generally, is "authenticity," then one might have problems with the Patterson enterprise. And that concern would seem to apply as well to the Marshall method, and to similar methods on the part of other judges and their clerks. I think this is a legitimate concern and worth taking seriously. But taking it seriously also requires considering that authenticity has become a fetish, that many cultural products and even individuals who are said to be, or sell themselves as, "authentic" or "unique" or "artisanal" are anything but, and that even as to more "authentic" people or things we can question the very notion of authenticity itself.

A similar question has to do with character and moral authority. I suggested in my first post that "we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons." In some cases, indeed, we care not only about the judge's virtues but about his or her biography and the authority and perspective it adds to his or her work as a judge. Marshall's profoundly important experiences and work surely brought moral authority to his judicial work, and that authority is often invoked in speaking about that work. Even apart from his decisions, he was famously said by his colleagues to have influenced them in his capacity as a "raconteur," sharing his experiences in a way that affected how they saw the law. To the extent that we think of his opinions themselves as deriving moral and intellectual force from those experiences and the moral authority they brought with them, should we reconsider this if the opinions were the product of a process, however carefully vetted? Of course this question is not limited to Marshall and his work. Other judges are said to have particular value and/or moral authority as judges because of their background and unique or representative or under-represented perspective, their work in various capacities before taking the bench, and so on. Depending on how firm or light their hand is on the tiller, should we question this?

We might add some practical questions to this inquiry. Does it matter who the clerks that form the "project team" are? If, say, a judge's moral authority is said to derive from having grown up with hardship and outside the usual cities, regions, and schools that produce so many elite lawyers and judges, of having scrabbled or dug ditches or attended night schools, does it matter if the judge hires a team that is composed exclusively of young people who all grew up in roughly the same privileged circumstances, received roughly the same elite educations, and share roughly the same narrow life experience, most of it distant from the judge's? Or should we care only that they be skilled mimics and ammanuenses for that jurist? And what part of the judicial office, exactly, counts for purposes of moral authority and authenticity in contributing to the law? Just the vote itself? The basic position? The actual reasoning? Not the reasoning, but just particular moments of eloquent rhetoric? The language and passion with which one delivers an opinion or dissent from the bench or offers an extrajudicial comment? How close or far from the judge him- or herself does any of this need to be to retain its moral authority and force, if indeed we do care about these things?

I would add a final observation about Tushnet's account of "personal stare decisis." It seems to me that it can be complicated in ways that are consistent with the kinds of questions that Dane asks and that I asked in my own post. Note that Tushnet speaks specifically and narrowly about personal stare decisis as the effort to ensure that the judge's opinions are consistent with the "judge's prior decisions." Again, I think this is common. But I suspect that for many or most clerks, depending on how much their judge either does his or her own writing or cares at all about that writing showing something of his or her own character, personality, language, style, and so on, the goal is not just doctrinal consistency but consistency of character and style. (A judge might, after all, prefer a more formal, impersonal, bureaucratic style. That's a stylistic choice too, but easier to copy without any insight into that judge and only indirectly revealing of the judge's personality.)

At some point, I would think, it can be easy for even a sincere and conscientious law clerk to stop channeling Judge X, and start portraying or enacting "Judge X"--a kind of fictionalized ideal of what they imagine that judge to be, not false but not entirely true, not quite the real thing but more of a biopic version based on real events. Judicial tributes and other monuments built by former law clerks suggest that this goes on long after they have gone on to other things. But it may start before they ever start their clerkship, if they wanted to clerk for the judge precisely because of who he or she ostensibly "is" and if they are inculcated into that iconic understanding of the judge by mentors and former clerks and by what they read about him or her. This slippage between wanting to represent the "real" judge and channeling or creating the iconic "judge" is made more likely by the very youth and inexperience of the law clerk and by an elite legal culture that is steeped in judicial hero-worship. And, as Sarah Barringer Gordon noted in her contribution to an excellent symposium on judicial biography, that tendency is also more likely if the judge is seen by the law clerk as a leading figure in an ongoing legal and political conflict in which the clerk is deeply invested, and in which it is useful both to construct your judge as a legend and, perhaps, to believe that legend. (The editor in The Man Who Shot Liberty Valance learns the truth, and understands that it is true, but tears up the story and prints the legend. Imagine going a step further and conditioning oneself to believe against the evidence that the legend is the truth. Surely we do this to ourselves all the time, especially when things like primaries and confirmation hearings roll around.) The shift from the real judge-X to "Judge X" may be strategic or unconscious, or strategic at first and then subject to a process of internalization and motivated reasoning. It may happen without the judge's contribution or with the judge's connivance, or may be a collateral but inevitable consequence of the judge hiring the kinds of people who do indeed see themselves as doing battle for the forces of good. In any event, my basic suggestion is that while Tushnet's description of "personal stare decisis" is more narrow and doctrinal, I suspect that many law clerks see "personal stare decisis" as involving more than that--as involving some attempt to channel the judge as a living personality--and that it easy to shift from this to "channeling" an idealized version of that judge.

My goal is to raise questions about this, not to criticize it or offer recommendations. It is relevant if we really do care about authenticity, or if we think that a judge's opinions are a reflection of and draw sustenance and authority from his or her authentic self. But we may not, or may question the firmness of the distinction between the judge as an actual person, the judge as an idealized or iconic presentation, and the judge's work as a "project." About the only conclusion I can draw is that all this is deeply imbricated in our strange American legal culture, its hero worship, its connection to political conflict, its smallness in elite circles, and its tendency to meld substance and personality.

Let me note that given his use of quotation marks around words like "judge" and his borrowing from Dane of the word "project," Tushnet is surely well aware of these issues--as is Dane. And Tushnet, wisely and as is his wont, has offered a far narrower intervention than mine--a genuine "supplemental note." As is my wont, I have taken someone else's footnote and built an essay on it. I prefer Tushnet's approach, and sane readers surely will as well. But I find the general issue interesting and provocative of many questions, and find that the seemingly little things are often the very things that reveal greater underlying questions about a whole enterprise and are immensely fun to tease out.               

Posted by Paul Horwitz on February 20, 2020 at 11:43 AM in Paul Horwitz | Permalink


You're taking comments again? On whether there's something wrong with the Marshall method, a part of Tushnet's post you don't quote relates a story where a clerk wrote and published an opinion in which "Marshall" believed that new rules shouldn't get retroactive effect in habeas, after "Marshall" had previously opined otherwise. Tushnet says this was a deviation from the personal stare decisis norm, but was it Marshall or "Marshall" who opined that new rules should have retroactive effect in habeas in the first place, and how much freedom did clerks have within the bounds of that norm if something like that could happen? I think there is something wrong, wholly apart from the concerns about moral authority you raise, with actually delegating major decisions to law clerks, who weren't appointed by presidents, confirmed by the Senate, lack life tenure, much experience, etc.

Posted by: Asher Steinberg | Feb 20, 2020 4:31:45 PM

Circumnavigated Constitution,

Of course, this is because, they typically clean the mess, left behind, by legislators (without blaming the latter. That's life). They don't have any other choice. They must prevail in given case. And if legislator, couldn't handle it right,and left unsolved issues, or vacuum, they must sail away, but, not that far, as you think.

Go and read my first comment here, only yesterday posted, you would understand the meaning of cleaning the mess. Here, you know what, having second one, I shall cite it here:

" Interesting, but the idea that " the founders knew how to authorize and limit delegation when they intended to " is really unreasonable with all due respect. Subjective intent, can't solve problems or issues occurring in real life. Not only cultural, social, technological changes, but, even when observing things at the outset, it is, or wasn't reasonable. Just two negligible illustrations:

The fourth amendment provides, that no search without reasonable cause or suspicion, or without warrant indeed, shall be carried out. Yet, even at the time, had to be violated, in light of the need, to conduct unconstitutional searches in borders. No suspicion, no warrant, how to search on one person or his baggage or whatever he would carry on him, while crossing borders ? This is a warranted exception, not mentioned by the founders.

Or, take immunity of the president. If immunity has been granted to Congressmen ( speech and debate) one may argue, that if they new how to grant immunity, then, the president, can't enjoy any immunity. Is it so? Recently you have posted on it indeed. "

End of quotation:

This is the constitutional legislator,and mess left behind. And, negligible illustrations, I could unfold here, illustrations from the ordinary one, trust your Christ, you wouldn't believe what you read.

That's what it is.


Posted by: El roam | Feb 20, 2020 2:16:47 PM

El Roam:

"they are bound by very narrow and complicated legal paths, that's why contraception, anal sex, and abortion have never been protected by the supreme court"

I hate to take you to the future of 1965, but the courts have protected all kinds of unenumerated rights. They don't just sail to lands the founders never knew, but they go in ships that hadn't even been built.

Posted by: Circumnavigated Constitution | Feb 20, 2020 1:57:23 PM

Interesting, but, there is that wrongful perception about judges and their work. The judge himself, is a sort of clerk. We tend to attribute to judges, personal characters or authenticity, but all this is basically wrong, or at least, exaggerated. Why is that ? Several reasons, just some few:

First, since they deal with fatal issues, fatal decisions sealing by this, fates of so many persons and firms and entities, one may or might think, that it is him, personally so, but it is not. why ? To the second one:

Their work consists on such meticulous, careful, hectic, awfully disciplined practice, that they get lost, in the legal structures they must build. They are rather attached or bound by: codes, jurisprudence, legal texts, endless lines of argumentation, that finally, their personal view is rather lost ( differentiated from professional identity ). It is not, like one author of a book, who is free, to sail away, and reach whatever land he wishes, but rather, from the starting point, they are bound by very narrow and complicated legal paths.

Finally, reasoning is one thing. But, guiding reasoning, well, that is a hell of different animal. His reasoning must guide others ( lower courts, lawyers, public officials etc). He can't afford, any personal style or view. It must be clear, conclusive, persuasive, and practical indeed,and all, in very specific well recognized wording and language.

So, there is no need, nor for any mystification of judges and their job, neither demystifying it. Since, it is something else. But typically, most of us, don't really read and understand rulings. This is problematic. Ruling, and the persons and work behind it.


Posted by: El roam | Feb 20, 2020 12:58:40 PM

So if the supreme court's opinions are really written by the 36 clerks and not the 9 justices, does that mean we already have 36 justices (or 45)?

If so, how many more do we need to "pack the court"? Were the court's opinions more liberty-centered (rather than regulation-centered) when there were fewer clerks?

Is it the same with the house of representatives? Do all their assitants actually write the laws? Does that mean that there are actually a thousand representatives?

Posted by: Ghost Justice | Feb 20, 2020 12:05:20 PM

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