The world (or at least, small portions of the blogosphere) is shocked at the revelations of Blackmun’s papers. Legal Affairs has its exposé; bloggers weigh in on either side (see, e.g., here, here, here, here, here). But on the whole, the charges — Justice Blackmun let his clerks do too much of the work for him — are pretty blasé. Let’s take a moment to discuss a much more interesting hypothetical: What would happen if a Supreme Court Justice’s private memoranda showed an egregious miscarriage of justice in one or more cases?
For example, imagine that a future Justice X’s papers are published and that they reveal egregiously unjust bases for decisions. Let’s posit that there are memos, from the Justice X to his clerk, that state:
“Another habeas? I hate those. They’re all brought by Blacks anyway, and I think that all Blacks are criminals. Write me an order denying it.”
“The plaintiff’s attorney sure looks great in that black skirt. Plus, she flirts with me when I see her around the court. Write me an opinion in favor of plaintiffs.”
“I just talked to my buddy who’s the CEO of XYZ Corp. He said that upholding the lower court in Smith would have a bad effect on the economy. Write me an opinion reversing Smith.”
“I’m tired of dealing with these cases. I’ll tell you what — everything with an odd-numbered docket, just deny. That will make life easier around here.”
Of course, this is not to say that any of these sorts of shenanigans actually take place on the Court. And if they did, one hopes that other Court observers would realize the problem, and it would be addressed sooner rather than later. But let’s assume that our Justice X’s problems do go unnoticed, until after his death and the publication of his papers. What then? What are the res judicata and stare decisis effects of Justice X’s decisions?
I suspect that the result would depend very much on the individual cases. For example, perhaps a habeas applicant who could show that Justice X denied his habeas petition because of overt racial prejudice could be entitled to a new hearing. (But this raises a lot of questions itself. Are judicial memos admissible evidence? What do they show? What if it’s harmless error? What if it’s someone who was executed? What if it’s an alien who was deported? Can the alien reenter the country now?)
Denial of cert is a whole lot trickier. Perhaps Justice X originally denied cert because he didn’t like African Americans, or because he wanted to clear his docket and so he ordered all odd-numbered cert petitions summarily denied. But it’s not at all certain that cert would have been granted in any individual case, even absent the wrongful factors. (Perhaps the correct remedy would be a de novo cert decision, which could itself be a denial if appropriate). There is the added question of who exactly can hear a claim of wrongful denial of cert.
Still trickier would be cases in which Justice X participated, and which have led to further case law development. For example, say that Justice X voted with the majority in an important 5-4 criminal procedure case — a case like Miranda or Apprendi or Booker, leading to broad changes in procedures. If the other four Justices participated in the decision in good faith, should the case nevertheless be considered suspect if it can be shown that Justice X’s vote was due to wrongful reasons? And if so, what is the proper remedy? A rehearing? A new decision? A new circuit split and eventual de novo resolution of the issue? And what happens to cases that are further developments of the original case — the Ring to an Apprendi, so to speak — are they also suspect? What if Justice X did not himself constitute the decisive vote in some of those cases? And finally, how much Casey-style deference ought to be given to decisions, even if they were wrongly decided by at least one Justice?
Is there law on this? (I suspect that there is probably some case law dealing with problems at the lower court level; I don’t know that case law is, and I’m also not sure to what extent, if any, it would translate to the Supreme Court). It’s a fun issue to play with.
And it does show one thing — however bad people may think Justice Blackmun’s memos were, they could have been much, much worse.
Posted by Kaimi Wenger on April 21, 2005 at 03:27 PM
Comments
Well, another thing to consider is what are you going to save? What of the deliberative process will be retained? Post-It notes with scribbled comments? Early opinion drafts? Handwritten edits to a dissent? The simple fact here is that we have all of this data because it was preserved, but was not required to be retained. What is the proper basis for a judicial opinion? If it is a close call and the law is not clear (and if we are at the USSC, it probably is about as clear as mud) then are we going to start second guessing judicial reasoning? Lets say originalism falls out of favor in a few decades and we get papers that reount what decisions were based on originalism … are those now thrown out, too?
Posted by: Joel | Apr 22, 2005 3:55:02 PM
Now that someone has despoiled this horrifyingly challenging hypo with a comment, I’ll jump in: while Brian’s comments seem correct, there may be a systemic need to dump the opinions in order to preserve the court’s legitimacy from outside attack. I can only imagine what the Tom Delays of the world would do if subsequent courts made decisions based on precedent that was created because of the author’s racism or whatever.
Posted by: Paul Gowder | Apr 22, 2005 3:01:30 PM
KDub (& other interested readers)–
I suppose the answer to your question depends on how positivist one is; if the law is just the opinion, then “secret reasons” for deciding, whether invidious or just of the “my law clerk persuaded me” variety, don’t matter. So, to put that problem aside, and still reach what I think is the real nugget of what you’re saying, why not just ask what we should do with Korematsu, or opinions telling us how many generations of idiots are enough, or Holy Trinity’s rationale that “this is a Christian nation.”
I think that makes the answers to your hypotheticals pretty straightforward as a doctrinal question. But maybe very interesting from a Tushnet/Kramer “popular constitutionalism” perspective — do secret reasons, or the secret lives of justices, affect how much other interpreters should defer or respect their judgments?
Posted by: Brian Galle | Apr 22, 2005 1:37:07 PM