1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his cite-checking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.
According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”
2019—Federal district judge Gray H. Miller rules (in National Coalition for Men v. Selective Service System) that the federal law requiring that only males register for the military draft violates the Equal Protection Clause. A unanimous Fifth Circuit panel will reverse Miller’s ruling on the grounds that it “directly contradicts” the Supreme Court’s 1981 ruling in Rostker v. Goldberg.
2020—In a front-page article in the Los Angeles Times, several “veteran” Democratic appointees on the Ninth Circuit launch anonymous attacks on the supposed lack of collegiality of some of their new colleagues appointed by President Trump. Gee, how collegial of them to do so. And how strange that judges who “refused to be quoted by name” would defend their unattributed attacks by “saying they were not authorized to speak about what goes on behind the scenes.” If they’re not authorized to speak in their own names, on what possible basis do they think that they’re authorized to give anonymous quotes?
Judge Daniel P. Collins is a particular target of the anonymous critics, who complain that he dared to call the panel decision in United States v. Cooley “deeply flawed,” “plagued” by legal error and marked by “confused analysis.” This complaint will prove even more ridiculous a year later, when the Supreme Court, in a brief unanimous opinion written by Justice Breyer, will smack down the panel decision and fully vindicate Collins.