The Blackmun Tapes
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RAY SUAREZ: Now, the significance of the Blackmun tapes and papers, and what they tell us about the workings of the U.S. Supreme Court. We get the assessment of two former insiders.
Pamela Karlan was a law clerk for Justice Blackmun in 1985. She now teaches at Stanford University Law School. John Yoo was a law clerk for Justice Clarence Thomas in 1993, toward the end of Blackmun’s tenure on the bench. He now teaches at Boalt Hall School of Law at the University of California at Berkeley.
Professor Karlan, what’s the significance of the release of Justice Blackmun’s papers? Does it fill in any blanks in the historical record of the court?
PAMELA KARLAN: Well, I think it does because the justice, as you probably know, was a complete pack rat. So he kept drafts of opinions that never got published. He kept drafts of opinions that got changed. And for anyone who’s a historian of the Supreme Court during the last quarter of the 20th century, the papers will allow to you fill in a lot of details about what the court was thinking behind the scenes.
RAY SUAREZ: Those preliminary drafts that get circulated, of the votes that get changed, being able to put together a timeline, an evolution of a final decision, is that useful for the general public? Is it useful for people more than legal scholars or law professors?
PAMELA KARLAN: Well, I think it can give them some insight into the way the court decides cases. I wouldn’t say it would be useful in their everyday lives. But I think it would give them in a lot of ways more confidence about how carefully the court thinks about things before it issues a decision.
RAY SUAREZ: Professor Yoo, is this a moment of discomfort for justices that are still on the bench who are mentioned in these papers and in these notes, and in whose notes appear in Harry Blackmun’s files?
JOHN YOO: I would think so. Again, as you saw when Justice Marshal released his papers so soon after his death, the papers discussed people who were still on the court and discussed issues that could still come before the court. So, of course, obviously Bowers v. Hardwick, which is a good example, you just had Lawrence v. Texas last term, which struck down Bowers and now you have the issue of gay marriage being talked about throughout the country that could come up to the court in the very near future.
So I think it does place some discomfort on them. I think in particular some of the things we’ve seen in the papers that are available on the Internet and in the newspapers about justices switching sides in the course of the cases, justices not so sure about their opinions, and so you see them talking with each other about what to do and flipping sides, I think that’s unusual and people outside the court would probably be surprised to see that because I think they see the justices perhaps as more like a machine, robotic or more distant from that kind of sort of instability decision making, but it actually, as the papers showed, it can happen regularly and sometimes in very important cases.
RAY SUAREZ: Well, what are you saying? Would it be better not to know, to assess the work of the justices but by the opinions and dissents that come out and become public?
JOHN YOO: I think so. I think the danger is if you release the papers too soon after a justice has been on the court, it might be used in ways to try to predict how justices are going to come out in future cases. I think some people in the past have tried to use the Marshal papers in litigation without success. Certainly the Marshal papers have been a field day for scholars. They’ve appeared in a lot of law review and scholarship — trying to figure out why the court did something. But exactly as you put it, the question is shouldn’t we take it at face value the teams themselves and not worry so much about how the decision was arrived at because it’s the opinion itself, which is the law, not the sort of judicial legislative history about how the court got there.
RAY SUAREZ: Professor Karlan, what do you think on that score?
PAMELA KARLAN: Well, I actually think it will increase people’s confidence in the court to realize that the justices look at the cases carefully and sometimes a justice begins writing a decision and realizes he or she can’t write it that way. And I don’t think it diminishes people’s confidence in the outcome to have them realize that justices are careful, justices often are quite humble intellectually. They think about the issues and they agonize with the issues. And I think that increases people’s confidence in the court.
If this were just a mechanical process, I don’t think the court would have the kind of respect that it’s enjoyed for 200 years.
RAY SUAREZ: Professor Karlan, one of the things apart from the legal decisions that I’ve found interesting when going through the papers is how little time the justices actually spend in each other’s company discussing these things, knocking these things back and forth.
They seem to communicate largely in written form and your former boss Harry Blackmun called this “a lonely job despite the fact that we sit as a group of nine.”
PAMELA KARLAN: Well, I think that’s correct, Ray.
I think most of what they do is like running nine tiny little law firms inside the same building, and so they share most of their thoughts in drafts of opinions, although of course one of the things that makes the papers so valuable for the historian or the person who’s interested in the court generally is that Justice Blackmun took extensive notes in the conference room when it is just the nine of them and no one else there. And so I think for historians and people who are interested in the court, it will be really interesting to look at his conference notes.
RAY SUAREZ: Professor Yoo, for a clerk, what does that do to your work life? Are you the people who are often the communicators for your justices?
JOHN YOO: I think that’s a really good point and something that again maybe the public doesn’t see so much of because it is the justice who’s the public face of the chambers but because they are so isolated from each other, as Pam said, they see probably their clerks a lot more than they see other justices and the clerks become the sounding boards, the aid, altar ego of the justices. They often send clerks to negotiate or try to work out deals with other chambers on language and things. A lot of it takes place at clerk-to-clerk discussion. I think that’s all outside the public’s eyes, so I think things change. It’s good to see in the papers — that this is something very important to the functioning of the court — is not something that is really not well known except maybe for people who are just really interested in the court.
RAY SUAREZ: Professor Yoo –
PAMELA KARLAN: Ray, could I say something.
RAY SUAREZ: Go ahead.
PAMELA KARLAN: I was just going to say one thing. In the tape that we just heard of the justice, he talked about a case called Darden against Wainright, which I actually worked on with him. And I think one of the other things you’ll get from the papers and that is important to emphasize is the clerks do a lot of work but the justices really decide the case. And I remember sending the justice a memo about Willie Darden saying well, you know, there are some problems with the trial and with the prosecutor’s summation and the like and I sent the memo in along with some papers to the justice and they were in his office all day. And he came out at the end of the day and said, you know, I think the man didn’t do it. And, you know, I had not focused on that because I was focused very much on some narrow legal questions.
And in most of the cases I worked on, and indeed the more important the case, the more this was true, the justice was making the decisions and the clerks were working on the decisions. The cases where the clerks had the most impact were the most narrow technical interpretations of federal statutes where, until the case got to the Supreme Court, the justices would have had no view of what was going on because it wasn’t an issue they focused on.
RAY SUAREZ: Well, by bringing up Darden v. Wainright, that’s one of the aspects of Harry Blackmun’s career hat has drawn a lot of comment, his refining of his thoughts on the death penalty. What would you want people to remember about that?
PAMELA KARLAN: Well, I think he was always personally against the death penalty, back even to his days on the court of appeals in Minnesota. But I think he began by thinking that the death penalty could be fairly administered and that there was nothing in the Constitution that prohibited it.
I think 24 years on the Supreme Court convinced him, as he said in his interview with Harold, that race and poverty and prosecutorial misconduct and defense counsel incompetence meant that it was too hard to be reliable in cases where the death penalty was at issue, and he just didn’t have any confidence that by tinkering with the machinery of death, we could make it run in a fair fashion.
RAY SUAREZ: Professor Yoo, Harry Blackmun’s final public comments on the death penalty got a lot of attention, but has it changed the direction of the court? When those appeals come from the states are they more likely to be heard, and the current sentiment of the justices, has it changed much?
JOHN YOO: I don’t think so. I mean Justice Blackmun was famous for that statement and the one in Casey where he talked about being, you know sort of a flickering light and sort of … predicting that abortion, for example, would be important in a confirmation successor.
Those kinds of statements I think were very much aimed for a public audience as opposed to the laws. I don’t think that they really had an impact on the other justices or where the court went in terms of the law. They might have had an influence — I certainly think they did — in public discussion of it, although that wasn’t the point of legal opinions, or at least I don’t feel they should be. But I can’t deny that the statements were very powerful ones and repeated in the newspapers and the media and had an impact, I think, on public discussions of those issues.
RAY SUAREZ: Before we go, Professor Karlan, Harry Blackmun said that he felt at the end of his career, that you had to be in the job of justice for a very long time before you got really good at it. Was he right in general terms and was he right when it came to himself?
PAMELA KARLAN: Well, I think he is right in general terms. I don’t think there is any job that really trains you to be a Supreme Court justice. And I think he was right about himself. I think when he first got to the Supreme Court, he was perhaps too tentative in the way he thought about some issues. He hadn’t been exposed to the issues.
One of the shocking things, if you go back and look at his confirmation hearings is he wasn’t asked any questions about the death penalty. He wasn’t asked any questions about abortion because when he was being nominated for the Supreme Court, those didn’t seem as if they would be the big constitutional issues they became. And so I think it takes time to grow into the job and to have confidence in your own judgment and also a sense of when your judgment might be subject to revision.
RAY SUAREZ: Professors, thank you both.