The Brains Behind Blackmun By David J. Garrow
Readers Respond: Justice Blackmun
Unbecoming Justice Blackmun By William Saletan
A Measure of Truth By Kermit Roosevelt
The Federalist Capers By Roderick M. Hills, Jr.
A Dirty Little Secret By Eric Redman
Justice on the Half Shell By Aaron Kuriloff
The Prince of Darknet By Joseph D. Lasica
A Measure of Truth
Walker Eliot's Supreme Court clerkship: An excerpt from the forthcoming novel In the Shadow of the Law.
WHEN YOU GET OUT OF HERE, WALKER ELIOT'S CIVIL PROCEDURE PROFESSOR had told his class, you will be capable of inflicting immense harm on people. You will be sharp and uncompromising; your minds will have been forged into lethal weapons. You will be lawyers. Use that power wisely. Nonsense, thought Walker. He didn't feel like a weapon; he felt like an explorer, pushing the borders of the map, like a suitor, eager to learn every detail about his beloved. This was discovery, not invention; of course there were right answers.
After graduation he went on to a clerkship on the federal court of appeals for the District of Columbia Circuit, and there he found vindication. The questions the cases presented were every bit as complicated as the exams his professors had dreamed up, but his judges didn't ask for arguments on both sides.
The idea that law is just what judges say is fine for lawyers, Walker thought. It's fine for law professors. They can say, in talking about how a case should be decided, that they're only forecasting what the courts will do. But that attitude doesn't get you far as a judge. And not as a law clerk either. Judge Andrews didn't hire me to predict his behavior.
Walker worked out the issues from the ground up. He ignored the parties' briefs; he traced the applicable doctrines back through hundreds of years of decisions, untangling the skein of opinions until the authorities had been reconciled, until the answers lay clear and irrefutable. From his Capitol Hill apartment he walked to the courthouse on Fourth and Constitution, feeling the empire of the law spread around him, passing through his body like gamma rays, ordering the world like a magnetic field. All of it unseen, but visible to the mind. Walker closed his eyes and there it was, the streaming code of statutes, amendments, and repeals; judicial decisions spawning other lines of authority, interpreting, distinguishing, overruling; the law's endless conversation with itself. Judge Andrews looked into Walker's small office with an expression of polite curiosity, surveying the sea of papers around the desk, the stacks of 19th-century treatises. He listened to Walker's breathless recitations, nodding, and explained that he'd reached the same conclusion, though typically by a somewhat shorter route.
They agreed on everything, and not because of ideology. Andrews was an efficiency-minded libertarian; Walker was basically uninterested in politics. But they agreed on the law, just as they'd have agreed on a question of mathematics. Twice, the other judges on the panel hadn't; twice Walker had been set to work drafting a dissent. And twice the others had read what the Andrews chambers circulated and had changed their minds, signing on to his opinion. It was the exercise of judgment, not will; it was the rule of law. The D.C. Circuit was heaven, Walker thought at times, the perfection of reason.
In his sober moments, he knew it wasn't. Heaven was where the gods lived. It was six blocks away, at One First Street, Northeast, a plaza with clear-running fountains, a building with marble pillars and great bronze doors. The Supreme Court.
Walker had applied for a Supreme Court clerkship without really thinking. It was when the invitations to interview began to come his way that he first considered the prospect seriously, and then he was troubled. He knew that the court posed problems for his vision of the world. Walker had left law school convinced of the law's abstract purity. His appellate clerkship had only strengthened his belief. The appellate courts ironed out wrinkles in the law, and Walker had warmed to the task, explaining Supreme Court decisions, instructing the trial courts, glossing the authoritative texts. But the Supreme Court was bound by nothing, not even its earlier decisions, which it could overrule if it chose. It was engaged in a fundamentally different venture, with no fixed points by which to navigate. It made the law.
This was not something Walker was sure he wanted to be a part of. Being able to discern the right answer, to deduce it from certain unquestionable givensthat was power of sorts. Being able to make an answer right was a greater power, something altogether different, and that was the power for the court. It smacked of the godlike, and Walker did not want to be a god. There were principles out there, Walker believed. Beyond the malleable words, the cases to be dissected and distinguished, there was something else. There was the law. But that was not a perspective the court could take, at least not always. It came down to this, Walker thought: Gods have nothing to believe in. How do you decide, he wondered, when whatever you say will be right?
In the interviews he hid his misgivings. He talked of his admiration for Oliver Wendell Holmes and the great judge Learned Hand; he discussed the finer points of the court's recent opinions. And he was hired, in the end, by Marshall Arlen, the court's oldest justice, a holdover from the earlier days, a man plucked from the Mississippi governor's office to serve with Blackmun and Brennan and Douglas.
The clerkship began in July. The city was hot; when it rained, steam rose from the pavements and the streets smelled like a swimming pool. On his first day of work, Walker showed up in a suit, sweat clinging to his ribs and his heart jumping inside him. He had to admit, he was a little scared. Scared by what the job might do to him, what it might call upon him to do.
But the first weeks were a relaxing introduction. Most of the justices had left D.C. to escape the heat, and the clerks dressed casually and played basketball in the upstairs gym. The summer months were downtime before the arguments started up again in October, and with no cases to be decided, the workload was relatively light. Walker processed the cert petitions (requests for the court to hear a case), writing summary memos to spare the justices the work of reading each petition, and learned quickly how to pick the few credible ones from the heap of those that never should have been filed. Over lunches in the clerk dining room, separated from the public cafeteria by soundproofed glass doors, he got to know the other clerks and picked up what institutional wisdom he could from the holdovers who'd be there until August.
Walker had read the clerkship memoirs; he'd heard about cabals and conspiracies, clerk shouting matches late at night in the red-carpeted hallways and vicious fouls on the basketball court. The summer offered none of this. There were strong personalities among the clerks, certainly, and peculiar eccentrics. One had tried to walk through the bronze doors on his first day of work, unaware of the clerks' side entrance. The doors were locked, of course; he'd lost his balance on the marble steps and eventually made his way to the orientation sessions scuffed and bruised, his scraped palm spotting the forms he filled out. The intake supervisor was amused. "No need to sign it in blood," she said. "We're not a law firm here." And there were some clerks identifiable by ideology, crew-cut conservatives from Chicago, liberal throwbacks from the appellate courts in California. Their grounds of disagreement were already staked out; their arguments readied for deployment when the opportunity arose. For the moment, though, it felt friendly, even familial.
The executions were harder. These still went on in the summer, heedless of the court's calendar. The states scheduled them; at the court a permanent employee known as the death clerk made up a list and circulated it to the various chambers each week. There the law clerks read it and prepared. Each justice was responsible for certain states, and that justice's chambers took the leading role in overseeing executions in those states. Running the execution, the clerks called it, though it didn't mean they were involved in anything more than coordinating the court's review.
Walker didn't like executions. No one did, he suspected; the facts were invariably depressing and the process macabre. The late-night vigils, the hours waiting in the deserted building for some lower court to act so that the lawyers could make the final appeal, raising arguments the clerks had hashed out days before and almost always rejected. Some of the clerks took it harder than others. Some felt compromised simply by participating, by the fact that they'd been the one to report the vote, to give the go-ahead. For days afterward they would be pale and withdrawn. Walker lacked that visceral reaction; if the people wanted the death penalty, they could have it. But he disliked the court's involvement in what was usually a fact-driven question, and worse, an emotional one, divisive for reasons of policy more than law. It should have been left to the lower federal courts, he thought; it was a needless strain. But the clerks generally worked through the issues cooperatively, and the occasional arguments about the fairness of state procedures did not disturb Walker.
It was the merits work, the cases the court actually decided, that scared him. The reason there were right answers at the appellate level, he'd realized, was largely that the lower courts were bound to follow the decisions of the Supreme Court. Those decisions mediated between the intangible law and the thousands of courts around the country. They were the clanking armor that housed the hidden spirit, unquestionable and authoritative as a plate of steel. For practical purposes, for the lower courts, they were the law itself.
But not for the Supreme Court, which knew the law directly and could shape it as it wished. That was the problem; that was the seed of doubt. A lower court that tried to twist the law could be slapped down, its judgment reversed. The Supreme Court guarded the law from all others. But from the high court there was no appeal; for its wrongs there was no remedy. Nothing could protect the law from the court, and Walker looked for vandals in its marble halls.
Justice Arlen returned in September, seeming an unlikely ravager. Small and cheerful, he arrived punctually in the mornings and took a midafternoon coffee break to regale his clerks with tales of the older days, his Southern accent swelling as the memories poured forth. The work ahead would be difficult at times, he told them, but he had confidence in their abilities and confidence in the court. Walker wasn't sure, but as Arlen's four clerks looked over the argument calendar and divided the cases among themselves, he began to relax. Many of the cases, it turned out, were actually quite easy. Many of the splits among the federal circuits were the product of errors that were relatively obvious. Walker could spot them; so could the other clerks; so could the justices. The Supreme Court was unanimous almost half the time.
In December Walker drafted his first opinion. Arlen struck paragraphs in a looping cursive hand, added new sections, inserted phrases. At the third draft he nodded approval from behind his desk. "You're learning," he said. "Most clerks write as though they aren't individuals; they try to sound like the law itself. They fear to be present in the opinion; they want to suggest that there's no person at work, no intellect, just the mechanical functioning of the law. That's why they resort to the legalisms, the jargon. But individuality and objectivity are not incompatible. And the law is not mechanical. It needs human intelligence to give it life."
Walker felt a deep satisfaction. At the D.C. Circuit, he had explained the law as it existed, but now he was at work fixing it, correcting mistakes. And more: He was bringing it into being, extending and making tangible the promise and implication of earlier decision. The law could not create itself, but no more did he create it; it existed independent of his will, waiting for the light of reason to reveal.
WINTER DRAPED THE COURT'S MARBLE IN SNOW; the morning sun was blinding. The clerks played football outside, before an audience of nine carefully constructed snowmen. There were dissents now, especially in the constitutional cases; the clerks carried the drafts down the red-carpeted hallways, past the marble busts of former justices, to each justice's chambers. The majority opinion was revised in response, footnotes added. New versions circulated, and the process began again.
Walker drafted his share of dissents and, unlike at the D.C. Circuit, they did not become majorities. He accepted this. The words of the Constitution by themselves left many cases unresolved. Reaching an answer required a theory, or at least an interpretive methodology, and on these matters the justices differed. Arlen did not compromise to troll for swing votes; he would not shade the facts to avoid a difficult issue that might fracture his majority. Left to his own designs, Walker might have. If the facts threatened the law, he thought, so much the worse for them. The court was not there for the facts. But Arlen did not write for the other justices; he wrote for himself, or for history. "There's more to this job than counting to five," he said. Walker admired that. He admired his justice; he respected the others. They were wrong at times, he thought, but not knowingly. And he liked the other clerks, who still played basketball together and gathered for weekly happy hours at the court's interior courtyards. It might not have been heaven, but for Walker it was close to paradise.
It wasn't until March that Walker encountered a problem case. It stopped him cold. He read the briefs again, and then once more; he embarked on his usual forays into the doctrinal history. The papers welled around him, the books piled up. And after it all his mind retained the same neutral, appraising cast it had had at the start, the same curiosity about what the right answer was. Walker rapped his knuckles against his head, perplexed. Usually at this stage he brimmed with passion, determined to vindicate the correct rule of law, outraged at the chicanery of the lawyers who argued otherwise and the idiocy of the judges who believed them. But he had no reaction to this case.
He moved on to the next one, worried that something had broken within him. Mathematicians may lose their powers in an instant. But his blood boiled reassuringly: The Seventh Circuit had failed to grasp the difference between exhaustion and procedural default. "Not me, then," he thought. He returned to the problem case. There were tools of legal analysis, canons of interpretation, modalities of argument. Text, structure, doctrine, history, the scalpels law school had trained him to wield. None made an impression. For a week the briefs lay on his desk, the case crouched within his mind, squat and obdurate, impenetrable. He consulted with the clerks in the chambers. "Tough case," said one. "But it's a stupid law." And another: "You know subsection (d)(3) was actually inserted by a senator who hoped the whole thing would get voted down." Walker stopped his ears. These were extralegal considerations, irrelevant, impure. Still he could make no headway. Finally he went to see Justice Arlen and confessed his failure.
Arlen looked at him in amusement, half hidden behind the large mahogany desk. The justice's chambers were well lit and modern in their furnishings; despite his age, Arlen was one of the first to embrace new technology. Nonetheless, there hung around him an air of the ancient and the inscrutable. From the wall peered down a portrait of former Justice Hugo Black, a native Alabaman and one of Arlen's inspirations.
"You think that legal reasoning gives no answer," said Arlen softly. "Perhaps it does not."
Judgment, thought Walker, not will. But when judgment runs out, what then? "So, it's a gap," he said. "The court is going to have to make law here."
Arlen gave him a cryptic smile. He leaned back and laced his fingers over his small belly. "There are no gaps in the law, Walker. There are only answers we have not yet found. It may be that you cannot see an answer here. Perhaps if we waited it would become clear; perhaps progress in another direction, in other cases, would shed some light on this one. But we do not have that luxury; we must decide it now.
"So we decide the case. That is what judges do. But it does not mean we make the law. We have the power to make the law if we choose, but our duty is to the truth, and power is not the measure of truth."
Interesting but unhelpful, thought Walker, wondering what he'd stumbled into. With his elfin smile and small goatee, the justice resembled a sprite perched on a toadstool. "But how do you decide?" he asked.
Arlen raised his eyebrows. In earlier pictures Walker had seen thick white curls on the man's head; now years of intellectual focus had burned them away and Arlen's skull rose, a gleaming sun over receding fog. "As a judge does. Or a clerk. Judging is not a mechanical process, Walker. A computer could not do it. But you are a human, and you have resources. Value-free adjudication is an illusion, and a dangerous one. Too often it allows the judge to blind himself to his own values and deny their influence. Choose the right values, and they can be acknowledged openly."
Walker returned to his desk, still wondering. A judge's values were not supposed to enter into decisions; that was the point of the elevation of judgment over will, the ideal of the rule of law and not of men. So what value could Arlen be suggesting? Not the ones his fellow clerks had offered, surely; not the desire to help out a sympathetic litigant or frustrate the operation of a malicious statute. A judge could not favor a party or impose his vision of wise policy. A legitimate value would have to be one implicit in the nature of legal reasoning itself.
Walker turned back to the analytic tools that had failed him, considering them not in application to the case but in their collective nature, seeking a unifying quality. An idea began to dawn in his mind. There is a purpose here, he thought; there is a theme. The interpretive canons, the principles of adjudication, were in large part aesthetic. They demanded doctrinal coherence, elegance, harmony between different lines of cases.
That's adjudication, he thought. Choosing the interpretation that shows the law in its best light, that makes it most beautiful. And that's what a computer cannot do.
Walker nodded rapidly, his mind gathering speed. A computer cannot make aesthetic judgments, he thought; a computer cannot love. The permissible value is love for the law, the desire to make it beautiful. And that value identifies the correct answer. The measure of truth is beauty, and where judgment runs out we turn to love. This is the meaning of the oath we swear, that pledge of fidelity to the law.
He sighed aloud, and the clerk who shared his office looked up from her computer. Walker did not notice. He was overcome by revelation, and his heart was lost all over again, to the law not in its majesty and omniscience but in its limits and its frailty. He saw now what breathed inside the armor of the court's opinions, the ghost in the machine. He saw the law not as an all-encompassing matrix but as a finite vulnerable creature that needed him, that grew within his mind and for its perfection required his love. "You," said Walker. "I favor only you."
Rachel glanced over without moving her head. Like most of the other clerks, she had come to the conclusion that there was something very strange about Walker. Addressing the air was only slightly beyond the range of his usual behavior. She cleared her throat cautiously. "Do you want to make another pot of coffee?" she asked. Walker did not hear. He was communing with the ineffable, as happy as he'd ever been.