Tuesday, April 19, 2005
Via the Volokh Conspiracy, David Garrow concludes that Justice Blackmun became merely a clerk to his clerks in his final years on the Court. In support he relies primarily on a few notes from one clerk:
[Clerk Michelle] Alexander gave Blackmun a note that read, "This morning at breakfast you mentioned that you would like to release the death penalty dissent by the end of the calendar year. I think that is wise," because several pending cases offered appropriate opportunities. In particular, "there is little chance that a better vehicle for your dissent will come along before the end of the year" than Schlup v. Delo, an "extraordinary" capital case. In closing, she stated, "I would love to hear your thoughts."

Schlup was postponed, however, and Alexander reported that she had reviewed all petitioners with scheduled execution dates. "I recommend that you plan to release your dissent when Malcolm Rent Johnson is executed on January 31," she wrote. Alexander once again concluded her note by saying, "I'd love to hear your thoughts." One week later, with Johnson's execution indefinitely delayed, Alexander advised that "[i]nstead of searching for the ideal vehicle for the dissent, the dissent should be tailored for any death case," so that it simply could be issued whenever the next execution occurred. Two days later, she told Blackmun that she had revised the existing draft to remove the Gary Graham references, but explained, "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."[WOW!!] . . .

Readers of Alexander's and [clerk Andrew] Schapiro's memos may rightly wonder who was functioning as a justice, and who as a clerk. Alexander twice told Blackmun, "I would love to hear your thoughts" about the opinion, yet her memos suggest that Blackmun was most concerned with whether he should "recheck the cites."

I know nothing about the author of this article, David Garrow, but I strongly suspect he is not a lawyer, or certainly was never an associate at a large law firm (where you work for many masters so to speak). I think the notes are ambiguous at best. I work with many partners that are, how should I say, anal about citations or other similar details. Certain partners (or people more generally) have pet peeves and things they focus on in their work product. So I would be inclined to let them know that the citations didn't change so that they wouldn't have to double check them (or more likely, so that they wouldn't ask me if they had changed - you learn to anticipate questions which may be exactly what this note is doing).

The rest of the note - for example the "I think that is wise," comment is properly respectful and a bit brown nosing at the same time. It is something a good associate would write to a partner. And the "I would love to hear your thoughts," is similar to the way almost all associate to partner communications end - asking for any comments/input or whatever from the partner.

In short, the conclusions reached based on these notes are specious at best.
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