The Ultimate Dissent

The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.

Therefore, I concur only in part.

“Names Deserving of Consideration for Court Vacancy,” 1962

To prolong the discussion of the John F. Kennedy library, that institution has been quite good about posting interesting documents from the Kennedy Administration online.

One such document, from March 1962, is titled “Names Deserving of Consideration for Court Vacancy.” This memorandum, authored by Ted Sorensen, lists possible candidates for the vacancy on the Supreme Court that was created when Justice Charles Whittaker retired. Ultimately, the nod went to Byron White. (The memo can be found within this batch of posted documents.)

If you’d like, slip back into a “Mad Men” state of mind and take a guess as to who appeared on the list. One hint: the list is divided into four categories: (1) Members of the Administration and the Senate, (2) Members of the Federal Judiciary, (3) Members of the State Judiciary, and (4) Members of the Bar and Academic Community. I’ll post the answers after the jump, along Sorensen’s recommendation to the President.

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Changing One’s Mind

As the years pass, even absent shifts in binding precedent it’s altogether possible that some judges, tasked with evaluating state laws that outlaw gay marriage, simply may change their mind and find a prohibition on the practice unconstitutional, after previously upholding such a ban.

If these judges need rhetorical support for such a volte-face, I recently came across this nice passage by Justice Robert Jackson (did he ever write any other kind?), defending his change of position on a point before the Court:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: ‘My own error, however, can furnish no ground for its being adopted by this Court * * *.’ United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—‘ Ignorance, sir, ignorance.’ But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

McGrath v. Kristensen, 340 U.S. 162, 177-78 (1950) (Jackson, J., concurring).

A quick Westlaw search reveals 15 judicial citations to this passage over the intervening 63 years, indicating that the nation’s judiciary as a whole admits error oh, once every four years or so.

John Roberts on Computer Crime Legislation (1984)

While continuing to procrastinate, I decided that today would represent a terrific day to clean up my office and recycle some old paperwork. While looking through these stacks, I came across this, a memorandum written by Chief Justice John Roberts back when he was a young White House attorney. Like other Roberts memos that I’ve posted before (here, here, and here), I obtained this document on a visit to the Reagan Library last year. For whatever reason, when posting the other documents, I forgot to include this one.

This April 1984 memo addresses a Department of Justice proposal to add new computer crimes to the federal code. I don’t know the precise terms of the proposal, but to my untrained eye, its (loosely described) provisions resemble certain of those found in the Computer Fraud and Abuse Act, a 1980s statute that recently has prompted much controversy.

The memorandum is short and to the point. It contains one nice rhetorical flourish, where Roberts observes that the proposal’s forfeiture provision “is designed to deter the junior high school computer whizzes who break into the Los Alamos computers and do such things as change the targets on all our nuclear missles [sic] to various points in New Jersey.”

If the DOJ’s proposal in fact mirrored the controversial terms of today’s CFAA, I suppose one could infer from Roberts’ lack of objections to the proposal a similar absence of unease with the CFAA’s broad scope. But I am not a CFAA expert, or even particularly familiar with its specific terms; thus I don’t know if the DOJ proposal and the statute are congruent in this respect. Plus, 1984 was a long time ago, and perhaps Roberts’s views have shifted over the years.

“Not all analogies are created equal,” and Florida v. Jardines

The other day, I read an interesting article just published in the journal Neuropsychologia, titled “Not all analogies are created equal: Associative and categorical analogy processing following brain damage.” As a matter of course, this article made me think of the United States Supreme Court’s recent decision in Florida v. Jardines, a “dog sniff” case.

In Florida v. Jardines, the Court (by a 5-4 margin) held that police use of a trained scent dog at the front door of a set-back, single-family residence amounted to a Fourth Amendment “search.” In reaching this conclusion, Justice Scalia’s majority opinion distinguished the circumstances from a situation in which a police officer makes a similar front-door approach as a prelude to a so-called “knock and talk.” To the Jardines majority, homeowners have customarily given their implied consent to the latter type of police contact, such that it is not a “search.” No such consent has been given to the dog-sniff technique, the court reasoned, so it is a “search.”

Fair enough, though I can’t wait for the case that’ll arise once technology gets to the point where police officers can take sense-enhancing pills. As I said, the Jardines case came to mind when I read the article on analogies. The abstract for this article provides as follows (with one technical sentence omitted):

Current research on analogy processing assumes that different conceptual relations are treated similarly. However, just as words and concepts are related in distinct ways, different kinds of analogies may employ distinct types of relationships. An important distinction in how words are related is the difference between associative (dog–bone) and categorical (dog–cat) relations. To test the hypothesis that analogical mapping of different types of relations would have different neural instantiations, we tested patients with left and right hemisphere lesions on their ability to understand two types of analogies, ones expressing an associative relationship and others expressing a categorical relationship. . . . We argue that categorical relations additionally rely on the right hemisphere because they are more difficult, abstract, and fragile, and contain more distant relationships.

As the abstract indicates, the basic point of the article is that “categorical” analogies are more difficult to draw than “associative” analogies are. In making this argument, the authors assert:

the relationships or mappings between words in categorical analogies are qualitatively different than those in associative analogies. Associative relations between two words are
typically based on actual events (a fish swimming in the sea) that can be directly experienced. The two items co-occur in time and space. In this sense such relationships are concrete. Categorical relationships, even those using concrete words, are less concrete than associative ones. They are feature-based, and not all features are equally important in establishing a relationship. Boxes and bottles are both containers, but some features must be ignored (shape, material) while others attended to (function of containment) in order for a relationship to be established.

Anyway, this article’s thesis would seem to have some application to legal combat, in which parties seek to analogize the present case to other matters in which courts have  reached favorable rulings. If the authors are correct, their work suggests that parties often would do well to brainstorm and stress associative analogies, instead of relying exclusively on categorical likenesses. This point would seem to hold particularly true in situations where the disposition will depend in some measure on custom and tradition, as often is the case in Fourth Amendment “was there a search” matters.

For example,the article got me to thinking about how the result in Jardines hinged upon the absence of a good associative analogy (dog sniff-porch) from the prosecution’s standpoint. Both sides made categorical analogies in Jardines, with the defense likening dogs to heat imagers (per Kyllo) and front-porch use of binoculars, and the prosecution analogizing dog sniffs outside a house to dog sniffs outside a car (Caballes) or luggage at an airport (Place). But Justices Scalia’s analysis did not dwell on favorable categorical analogies (though Justice Kagan’s concurring opinion did), and honed instead on whether or not homeowners grant implied consent to law enforcement dog-sniffs — an analysis predicated upon the lack of a ready associative analogy.

As a matter of course, there’s still the old lawyers’ level-of-generality issue to think about in this context. After all, the government prevailed in the overflight cases of the 1980s even though there was only a “look down-airplane” analogy to rely upon, as opposed to “police officer look down-airplane.” But that’s a nuance, and goodness knows no one reads this blog for those sorts of fine points.

I Guess You Had to Be There, But Still Better than the “Harlem Shake”: “The Great Nine” (1890)

From the The New York Morning Journal, February 5, 1890:*

“The Great Nine.”

A Supreme Court song and dance which should have been performed yesterday.

We are the dread judicial nine, who rank high over all,                                                       We sit upon a narrow bench in a little stuffy hall;                                                                   We tinker Constitutions and decisions we reverse,                                                               And when a muddle’s very bad we often make it worse.

For (chorus)

We are the Nine,                                                                                                                   The terrible Nine,                                                                                                        (Privately fond of good dinners and wine;)                                                                         But, dressed in our gowns,                                                                                                     And our most solemn frowns,                                                                                                  Our dignity really is adamantine!

(Here Mr. Justice Harlan danceth a Kentucky reel.)

We are the nine upon whose law the gravest things depend;                                        Some suits, if we were not at hand, would never reach an end;                                      With a whisper we can make the biggest corporations howl;                                            And we fear neither angered House, nor Senatorial scowl;


We are the Nine,                                                                                                                      The eloquent Nine,                                                                                                                 Stronger than Congressmen tho’ they combine;                                                                      Decked in our gowns,                                                                                                         And our mightiest frowns,                                                                                                     Our dignity really is adamantine!

(Here the Chief-Justice performeth a Parisian pirouette.)

Yes, we’re the Nine above whose word no President can go,                                                It really makes us dizzy to think how much we know;                                                           But at times we like amusement, so we take of cards in a deck;                                      And play poker on the Bench while we sample extra sec


We are the Nine,                                                                                                                 The frolicsome Nine,                                                                                                    Merriest when we’re invited to dine;                                                                                     But draped in our gowns,                                                                                                    And stateliest frowns,                                                                                                          Our dignity really is adamantine!

(Here Mr. Justice Field snatcheth a Caifornia fandango.)

Second Chorus.

Oh, yes!                                                                                                                              Our dignity really is adamantine                                                                                Rhadamantine.                                                                                                              McAdamantine!

(Here Mr. Justice Lamar indulgeth in a Mississippi hoe-down, after which all join in a grand walk-around.)

 * I haven’t pulled the microfilm of this newspaper. The song comes from what purports to be a reprint of February 5, 1890 edition of the Morning Journal, as found within William Rehnquist’s papers at the Hoover Institution.

March 30, 2013 UPDATE: Ted Frank has raised the possibility of this song being a modern satire, merely imitating an 1890s routine. Obviously, more research must be done to verify the authenticity of this song, which research will have the ancillary benefit of providing more fodder for future columns. Any feedback from persons with knowledge would be appreciated, and attributed. As matters stand, the evidence still supports the authenticity of the song, but if the facts change, additional reports will assuredly follow.

John Roberts’ French Connection

A few days ago, I posted a bunch of old John Roberts memos from his White House days. Roberts wrote one of these memos in French. I don’t read French, so I appealed to those of you who do for a translation.

Heroic reader Raffi Melkonian of New York stepped up to the plate and provided me with the following:

“Memorandum a: Fred F. Fielding

De: John G. Roberts

A l’egard de: Jacky Reggan

Jacky Reggan, a French singer, has written the President.  Mr. Reggan says that the entire world of show biz is making fun of his name, saying that he’s a relative of the President.  He asks a favor of the President; that the President write a letter.  It would say that the President is not Jacky’s father.

I think that Mr. Reggan is looking for publicity and fame.  It’s not plausible that anyone would think he was the President’s son.  And the cover of his disc shows the White House, so it seems like it’s Jacky who has associated himself with the President (Ms. Strudwick, the best student of French in our office, has listened to the disk, and reports that the disc does not cite the President or the White House).

But, we can’t be sure.  We must do some research.  I recommend that I go to Paris to get an interview with M. Reggan and his friends.  My passport is ready, as always.  I don’t want to go.  But I know that the task is difficult, and someone has to do it.   Alternatively, I recommend that we don’t answer, because I’m afraid that Jacky will employ our answer as publicity.

_____ Go to Paris

_____ No answer

____  See me”

From the Reagan Presidential Library: Glue sniffing? Did you have sex in high school or junior high? Do you buy or sell pornography? The (Draft) Background-Check Questionnaire and Other Documents Relating to the Kennedy Nomination

Today, I’ll share one last set of documents from the Reagan Presidential Library. These materials, which I found among the papers of White House lawyer Arthur Culvahouse, relate to the nomination of Anthony Kennedy to the United States Supreme Court.  

I’ve posted the documents as a single PDF file. The posted papers include a short memo that describes the vetting that had been performed on Kennedy and a memorandum from Culvahouse to President Reagan in advance of the latter’s meeting with Kennedy to screen him as a possible nominee.

If you scroll down several pages, you’ll get to the most interesting of the documents: what appears to be a draft questionnaire, listing the due-diligence background-check questions to be asked to Kennedy (there are actually two such questionnaires; one short and one long). Reading through the lengthier questionnaire, you might start to wonder why anyone would ever want to be a Supreme Court nominee. The questionnaire asks, inter alia:

Relating to Kennedy’s junior-high and high-school years:

Did you have sex in high school or junior high? If so, How often? How many different girls? Where? Were there any pregnancies? Were there any abortions? Did you ever contract venereal disease? Did you use contraceptives?

Did you ever engage in any aberational [sic] sexual activity?

Do you have any bitter friends, e.g., bitter girlfriends?

Did you ever use drugs? Glue sniffing? Parents prescription drugs? Did you attend partires [sic] where drugs were used? (Interestingly, the types of drugs inquired into shifts as the questionnaire moves from Kennedy’s high-school to his college years, and beyond; later versions of this question in the questionnaire substitute marijuana and cocaine for parents’ prescription drugs.)

Relating to Kennedy’s college years:

Were you rejected by any colleges? If so, what was the basis for rejections?

Were you a member of a fraternity? If so, What hazing was there? Were there racial or religious restrictions? What was the fraternity’s reputation? Were there any bizarre rituals? Did the fraternity engage in sexual harassment?

Relating to Kennedy’s law-school years:

What was the most unpleasant or embarassing thing that happened to you while in law school[?]

Relating to Kennedy’s present personal life:

Do you buy or sell pornography?

Have you ever abused your wife?

Have you ever had an extramarital affair?

Has your wife ever had an abortion?


Just in case you thought that the questionnaire was a tiny bit invasive, the question “Have you ever engaged in kinky sex?” does have a line drawn through it, suggesting that Kennedy was spared from having to answer.

From the Reagan Presidential Library: More John Roberts Memos

There are worse ways to spend a couple of hours than browsing through John Roberts’ old memos from his White House counsel days. As a junior staffer in the Reagan Administration, Roberts brightened even the most prosaic report with his Atacama-dry wit, and his legal analysis (and judgment) were almost always extremely impressive.

I don’t believe that any of the Roberts memos that I’ll share below represent heretofore unknown “discoveries.” Indeed, some of the documents that I’ll discuss (and some that I won’twere posted online by the National Archives back in 2005, with the media poring through them at that time. But some of these memos were overlooked during the Roberts nomination process, and in any event, it’s been a while since anyone has taken a look at them. Chief Justice Roberts’ tenure on the bench may have imbued some of these documents with additional meaning. Or not. (You can click on the dates if you want to check out the memos, which I’ve posted online.)

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John Roberts’ Memoranda re: the Intercircuit Tribunal Proposal (1983)

Since I referenced them in a post a few weeks ago, a couple of readers have requested that I post the memoranda that then-Department of Justice attorney John Roberts wrote back in 1983 to White House Counsel Fred Fielding, regarding the proposed Intercircuit Tribunal.  So, without further ado, here they are, as copied from the holdings of the Reagan Presidential Library. (For some perky writing, make sure to check out the first full paragraph of page two within the April 19 memo.)


Rehnquist’s Top-Ten List (1981)

A few posts ago, I mentioned that the William Rehnquist papers at the Hoover Institution include a file folder labeled “Ten Most Important Rehnquist Opinions.” I invited everyone to guess what these opinions were, keeping in mind that the list appears to have been compiled in 1981, and that I have no idea who identified this set as the Ten Most Important Rehnquist Opinions.

Like Rob Fleming, the protagonist in High Fidelity, I’m fascinated by lists, especially rankings. This fixation goes back a while. When I was six, my parents bought me The Book of Comparisons, which ranked things like the world’s tallest and largest buildings, the fastest and slowest animals, and the famous people who had the longest and shortest lifespans. A few years later, on a shelf at the local library I came across The Book of Lists, which pushed the theme into all sorts of strange and occasionally ribald directions. I may be the only child in America who learned about the birds and the bees from The Book of Lists. Which, come to think of it, probably explains a lot.

The Internet, as a medium, has been very good to lists, and to list-making. Hornby’s protagonist notwithstanding, it can be difficult to communicate a list orally. It works much better on film. In real life, you’re probably going to forget one of the entries, or your listener might have problems following the stream of your monologue. Or they might just walk away before you get to Number One (if you’re counting down) or Number Five (if you’re counting up). (Number Five being at least as important as Number One, at least in any subjective ranking scheme, since Number Five does at least as much work as Number one in defining the attributes that you consider to be the most important in your system. Also, there’s probably going to be lots of agreement on Number Ones; less so, on Number Fives. Who was the fifth-best President?) In the event that your listener cares what you’re saying, odds are that they’ll care a little too much, and the conversation will devolve into a heated argument well before the list is complete.

The opportunity cost of a printed page, meanwhile, rarely justifies something as frivolous as a list,* especially a subjective one like ranking like the Five Best Episodes of Season Two of “Community” (#5: “Cooperative Calligraphy” #4: “Epidemiology” #3: “Advanced Dungeons and Dragons” #2: “Conspiracy Theories and Interior Design” #1: “Paradigms of Human Memory”). The two main exceptions to this rule, prior to the Internet, involved (1) periodicals like Cosmopolitan magazine, which are pretty frivolous in the first place and always need grist for the mill; and (2) specialty titles for niche audiences, like Bill James’ annual Baseball Abstracts and Dragon magazine, neither of which is the slightest bit frivolous because the author of this blog apparently suffers from enormous gender bias.

The Internet avoids these problems. The cost of publication is low. For this reason, there is no Bottleneck of Authoritativeness, as there is in print, which limits the number of people who can see their lists published. The permanence of the medium and its aforementioned availability allow for easy discourse; anyone who disagrees with the contents of a list (say, a ranking of the regenerations of Doctor Who) can assess it, come up with alternatives, and communicate their differences to the initial list-maker and whatever broader audience may exist. And to the extent that lists accompanied by explanations tend to go on and on, the Internet permits consumption on a bit-by-bit (ha!) basis and allows easy re-entry whenever the reader wants. These attributes germinated sports columnist Bill Simmons, who has built a successful career out of online columns that mostly consist of obscenely long lists sprinkled with catchphrases.

Where was I? Oh, yes. Back to the Rehnquist opinions. Of all participants (one) in the contest, Professor Orin Kerr got the most right. The list of Top Ten Rehnquist Opinions, per the list, consists of:

Adams v. Williams
Mahan v. Howell
Tollett v. Henderson
Edelman v. Jordan
Huffman v. Pursue
Wainwright v. Sykes
Vermont Yankee Nuclear Power Corp. v. NRDC
Dames & Moore v. Regan
Sumner v. Mata
Parratt v. Taylor

In closing, for no particular reason, here is a throwaway list of my own:

Top Five Prettiest Law School Campuses:

#5 Cornell

#4 Pepperdine

#3 University of Michigan

#2 Washington University / St. Louis

#1: Stetson

* Yes, I understand that year-end “Best of 19XX” lists and pretty much the entire print run of Entertainment Weekly run directly contrary to this assertion. In my defense, I will point out that Entertainment Weekly launched in 1990, just a few years before or after the Internet was created by Switzerland/Stanford/the military/Al Gore.

You Can’t Always Choose Your Talents: William Rehnquist, The Novelist

Earlier today, while on a visit to the Stanford campus, I detoured into the Hoover Institution’s archives to take a quick look at a few of William Rehnquist’s papers.

As some of you may know, the former Chief Justice donated his papers to the Hoover Institution, but most of these documents remain under seal. The terms of his gift to the Institution provided that to the extent that his papers involve Supreme Court cases, they are to remain off-limits until such time as all other Justices on the Court at the time of the case in question have passed away. Accordingly, at the present time only Rehnquist’s personal papers, as well as documents that relate to cases heard by the Court between 1972 and 1974, are open for research.

Happily, I wasn’t especially interested in reading old opinion drafts. What piqued my curiosity, instead, were a few other notations in the Rehnquist papers finding aid. First, I saw that the Rehnquist collection included several of his old law-school notebooks. Might be interesting, I thought. Second, the finding aid indicated that Box 193 of the Rehnquist papers included a folder with the title, “Novel Notes, 1974-1980.” Chief Justice Rehnquist wrote a novel?, I wondered. This I gotta see. Third, there was a folder in Box 88, “Ten most important Rehnquist opinions.” I didn’t (and still don’t) know who identified these opinions, but I thought it might be interesting to see what the folder contained.

Let’s start with the notebooks. A few observations:

(1) It appears that as a young man, Chief Justice Rehnquist liked to gamble. One of the notebooks in Box One of the Rehnquist papers includes a few lists of bets that Rehnquist recently had made. I know that Rehnquist liked to play poker (and the notebook does reference a poker game); it looks like he liked to place bets on football games and horse races, too.

(2) It also appears that Rehnquist liked to doodle, and in particular, that he enjoyed drawing portraits of now-obscure individuals in the margins of his notebooks. So, here’s a word of advice to you kids out there: Don’t pay attention in class, and you eventually will become Chief Justice of the United States Supreme Court.

(3) Rehnquist’s Constitutional Law notes are pretty interesting. (Across his classes, Rehnquist took very good notes.) His Constitutional Law course appears to have spent a considerable amount of time on the Commerce Clause; I’d draw some inferences from his notes on this subject, but this post is already going to be too long. Unfortunately for any hope that Rehnquist’s Con Law notes might shed light on his Plessy v. Feguson memo to Robert Jackson, the notes seem to end right at that very case; on the general subject of equal protection as it relates to public accommodations, all Rehnquist writes is, “Ct has said that segregation per se was not denial of equal protection if accommodations are equal.” (I would not expect much editorializing about the case, in any event; that does not appear to have been Rehnquist’s style as a note-taker.)

Now, let’s move on to the “Novel Notes” folder. The title of this blog post comes from a line in a recent episode of “Mad Men,” in which Don Draper tells his wife, Megan, that a person can’t always choose his or her talents. (Megan wants to be an actress, but her gifts may lie more in advertising.) The implication being, that on balance, a person will be happiest if she chooses a career that exploits her talents, rather than trying to tack against the wind.

I did not know William Rehnquist personally (though I suspect I would have liked him).  I don’t know if he ever wanted to be a novelist, or whether it was just a hobby of his. Review of his novel notes establishes beyond argument, however, that G_d did not put William Rehnquist on earth to write novels.

The Rehnquist papers include outlines and drafts of a novel that Rehnquist tried to write in the mid-1970s, and in all candor, it is not very good. Rehnquist was told as much by the editors to whom his agent sent the manuscript. In one letter to Rehnquist, the agent relayed an editor’s criticism of the writing as “a little stiff,” such that the manuscript “would need a very considerable craftsman/editor to shape it into an acceptable novel for publication.” This editor also commented that “the author insists on telling when [he] ought to be showing or revealing, and there is not enough complexity in the case itself.” In another letter to Rehnquist, the agent reports that a different editor liked the plot, but  ”[w]here he feels the book falls down is in the sheer writing skill.”  Yup, that can be a problem.

I wonder what impact this criticism had on Rehnquist. Here you have an immensely talented man, so successful at one type of writing, basically being told that as a novelist, he’s an incompetent. I suspect that Rehnquist had a sufficiently well-developed sense of humor that he didn’t take these rejections too personally, but maybe they did sting just a little.

Finally, let’s have some fun with the “Ten Most Important Rehnquist Opinions” Folder. I will open up the comments function on this blog for a while to accommodate guesses as to what these 10 opinions are. If someone correctly names six out of the 10 opinions contained within the folder, I will donate $50 to an animal rescue shelter. (And, hey, Brazilian spammers, 6/10 is an inflexible bar, one that I will refuse to modify even if you tell me that my blog “Is very interesting. One of the best ones out there. I really enjoy your points of view.”)

Hint: the “Top 10″ folder within the Rehnquist papers includes ONLY opinions written between 1972 and 1981; my guess is that it was pulled together for some 10-year anniversary of Rehnquist’s appointment to the bench. So Rehnquist’s later ouvre is out, and several of the opinions within the folder are, today, quite obscure. Again, I don’t know who identified these 10 opinions, but it would be interesting if it was Rehnquist himself . . .

From the Library of Congress: Warren Burger Gives Some Advice to Harry Blackmun; William Rehnquist Says Blackmun is a “Meh” Writer

Having shared all of the Reagan Library documents that I saw fit to post, this blog will now markedly change direction . . . and post a series of documents that I recently came across at the Library of Congress. My apologies if such a dramatic switch leads to some whiplash.

For those of you who haven’t been there, the Library of Congress houses an enormous and impressive collection of manuscripts. (Yes, it is possible to have an enormous, but relatively unimpressive, manuscript collection. Give me enough to drink, and I will name names.) One of the Library’s particular strengths is its collection of papers from a large number of United States Supreme Court justices. Among relatively recent justices, Earl Warren, Thurgood Marshall, William Brennan, William O. Douglas, Harry Blackmun, Byron White, and others have given their papers to the Library.

Many, probably most, of these papers have been thoroughly mined by researchers. In some cases, these extractions already have produced articles that fall within an unfortunate genre of law-review submissions that I inexcusably forgot to include in my taxonomy of Suspect Law Review Articles blog post: the “Look What I Found” essay. (I’m not being not entirely fair, here; some authors have built pretty good pieces around archival finds.)

But occasionally, in poring through the files, you can locate something interesting that others have overlooked, or at least haven’t dwelled upon. When working with judges’ papers, more often than not it seems that these late discoveries appear in file folders dedicated not to specific cases (e.g., a judge’s ”Roe v. Wade” case file), which already have been picked clean, but instead to correspondence with law clerks or other, more generic matters. These folders can be pretty extensive and daunting, and haven’t always been perused carefully.

For example, in one such folder I found this memo from William O. Douglas to his OT 1971 clerks. In it, Douglas relates his views regarding the death penalty, advising his clerks that “The question of the death penalty has been a hobby of mine for some years. I have always thought it was extremely unwise as a public policy to enforce it. That of course is a far cry from saying that it is cruel and unusual punishment under the meaning of the Eighth Amendment.”  (In fact, Douglas notes earlier in his memo that “The death penalty has been with us from the very beginning and [it] would require considerable effort to read cruel and unusual punishment in the Eighth Amendment as outlawing it.”) With cases such as Furman v. Georgia looming, Douglas assigned his incoming law clerks a research project that would address “the sociological, penological, psychiatric, and legislative aspects of this whole problem.” Maybe everyone already knows about this memo, or would regard its contents as unsurprising, but I for one found it to be pretty interesting.

In a related story, wow, am I glad that I did not have to undertake that research project.

So, anyway, back to the main point of this post. This past week, when I visited the Library of Congress, I took a peek at a few boxes of folders among the Harry Blackmun papers. Therein, I found: (1) this letter (dated April 20, 1970) from then-National Observer reporter Nina Totenberg to then-nominee Blackmun, thanking him for his recent hospitality during what appears to have been a visit to Stately Blackmun Manor, and apologizing for some errors in a recent Blackmun profile that she had written; and (2) this letter (dated April 27, 1970) from then-Chief Justice Warren Burger to Blackmun, in which Burger gives some pungent advice on how to deal with reporters–especially female reporters. I don’t know if there was a cause-and-effect relationship between the two letters, but Burger’s letter is . . . interesting.  I’ll leave it at that.

But wait, there’s more. I don’t want to have to write a second Blackmun post. I would much rather assess how many years in prison the tri-Lambs would likely have received if they had been prosecuted for their exploits in Revenge of the Nerds, or consider whether it was legit to sentence the Blues Brothers Band to prison along with Jake and Elwood (who definitely deserved it, mission from G_d or no) at the end of The Blues Brothers (on this note, R.I.P., “Duck” Dunn). So I will use this opportunity to share this second set of documents relating to the Blackmun nomination, which I also found fairly interesting.

In them (you’ll have to work past a redacted copy to get to the text, which appears on what presents itself as a retyped duplicate), then-Assistant Attorney General William H. Rehnquist sizes up Blackmun as a possible Supreme Court nominee. Rehnquist describes his future colleague as a “responsible, conservative judge, attuned to the President’s desire that judges ‘interpret, not make the law.’” Rehnquist adds, however, that “I would not say that he is a top-notch writer, and his opinions seem on occasion longer than necessary.”

One wonders if, after Rehnquist joined the Court, Blackmun ever broached the topic of this memo. (Blackmun apparently received a copy, since the caption on the typed version found within his Papers relates that it was retyped in his chambers.)  Probably not, but I’d be interested if anyone ever heard Blackmun and Rehnquist share an inside joke about “top-notch” work.

UPDATE (5/13/2012 @2010 PDT): I originally described Burger’s advice to Blackmun as “shaky,” but I think that’s a bit harsh, too. I must be in a cross mood today. Although Burger certainly uses some regrettable phrases in his letter, a lot of what he writes kinda sorta makes sense. At one point, he’s basically describing the “Greenhouse Effect,” and at another, well, I remember calling up possible interview subjects, back when I interned at “Dateline:NBC,” and leading with, “We just want to understand your side of the story.”  But as a general matter, it’s probably not advisable to go around casually referring to females as, invariably, “the more deadly” sex within any species. Perhaps if Burger had framed his advice a little bit differently, Blackmun would have followed it, instead of . . .

From the Reagan Library: Robert Bork Seriously Just Can’t Buy a Break

This will be the last in a series of posts in which I’ve shared some documents that I uncovered during a recent visit to the Reagan Library. Today, offered for your consideration are a few internal memoranda, dating from 1986 and 1987, that evaluate Robert Bork as a potential nominee to the United States Supreme Court.

The first of these memos, which I suspect (but cannot confirm) was written by an attorney or attorneys at the Department of Justice, was prepared when Judge Bork was being considered for the 1986 round of nominations that led to Antonin Scalia’s appointment as an associate justice and William Rehnquist’s elevation to the chief justice position.

This memo is pretty short. This brevity is understandable, given that President Reagan ultimately did not nominate Bork to the Court in 1986. What the memo lacks in length, however, it more than makes up for in ruthless candor. In its last paragraph, the memo touches upon certain “miscellaneous factors that bear on the desirability of appointing Bork to the Court.” To wit, “First, if [Bork] is passed over for the next opening on the Court, he may be insulted and resign from the District of Columbia Circuit.” OK, even if this comment assumes that Bork is a pretty peevish fellow, it’s a fair point for consideration. What else? Well, the writer touches upon Bork’s role in the “Saturday Night Massacre” (again, fair enough), and then notes, “further, [Bork] is 59 years old, smokes heavily, drinks somewhat and engages in little if any exercise. This indicates that his tenure on the Court may be of a shorter duration than other potential candidates.” Ouch, or as Hank Kingsley would say, hey now. (Just in case you missed the memo-writer’s “hidden message,” allow me to translate: “Bork is fat, old, and he doesn’t take care of himself. He will die soon.”) Bitterly defying this tut-tutting over his personal habits, Mr. Bork is still with us today, at the ripe age of 85.

The second and third memos were prepared in 1987, shortly before President Reagan nominated Bork to fill Lewis Powell’s former spot on the Court. We all know how that turned out. (Hint: not well.) These memos are somewhat longer than the 1986 assessment, and present more thorough analyses of Bork’s approach to judging, and his viability as a candidate for the Court.

The first of the 1987 memos is a summary of the “General Considerations and Confirmability” that surrounded Bork as a Court candidate (similar to the Scalia and Kennedy summaries that I posted a few days ago). The second appears to be another Department of Justice breakdown of Bork’s judicial philosophy (though again, I cannot confirm its provenance), which is significantly more detailed than its 1986 counterpart was.

What’s striking about these memos, in hindsight, is how readily confirmable the authors thought Bork would be. (Other commentators, reflecting on the Bork nomination, have made similar observations.) In assessing Bork’s confirmability, the first of the 1987 memos emphasizes that Bork “is . . . supposed to be a tremendously warm human being and very witty,” as if that matters a whole lot, and relates that “Bork is also described as much more likely to be confirmed by even a Democratic Senate because he is ‘much older and less radical than some of the other alternatives’” (quoting a media report). And in an almost touching display of naive oversimplification and obliviousness, the memo-writer continues, “The media will also be kind to Bork because of his strong support for the First Amendment in a recent libel law decision.”


From the Reagan Library: Questions for President Reagan to Ask Prospective Nominees Rehnquist and Scalia (1986)

Here is another interesting document that I came across at the Reagan Library. It’s a 1986 memo from Counsel Peter Wallison to President Reagan, in advance of interviews Reagan would have with prospective Chief Justice nominee William Rehnquist and Associate Justice nominee Antonin Scalia. Accompanying two lists of suggested questions to be posed to the potential nominees are briefing papers–prepared, I believe, by the Department of Justice–that size up both the personalities and jurisprudence of Rehnquist and Scalia.

Both question sets lean heavily toward “big picture” issues, such as federalism and the relationship among the executive, legislative, and judicial branches.  Probably the most specific proposed question (suggested as to both) was “Should the Supreme Court continue to move away from the decisions of ‘the Warren Court’ in the area of criminal justice and law enforcement, or has a reasonable equilibrium been reached?”

I posted the Scalia DOJ profile, as found within another file in the Reagan Library, last week.  The Rehnquist profile, meanwhile, observes that “by dint of his personal qualities, intellect and cheer cleverness in reshaping erroneous precedent, [Rehnquist] has formed a consensus on an otherwise rudderless Court behind fundamental principles which might well have otherwise been rejected.”  Wallison notes, however, that  ”Rehnquist is 61 years old and questions have been raised about his health and his continuing commitment to the Court’s work. Even if his health is good, he may not be able to serve more than 10 or 15 more years.”