Clerkish Control of Recent Supreme Court Opinions? A Case Study of Justice Kennedy's Opinion in Gonzales vs. Carhart
47 Pages Posted: 6 Oct 2008 Last revised: 16 Nov 2008
Date Written: October 6, 2008
In recent years, several analyses have furthered our understanding of the roles of U.S. Supreme Court clerks. This article applies the insights provided by these works to a case study of some of the language in Justice Kennedy's opinion in Gonzales v. Carhart (2007). The study considers whether both the theory and content of this language were largely the work of one of the crop of clerks who worked for the Justice during the October '06 Term.
Justice Kennedy's vote and his authorship of the majority opinion were unsurprising. However, some of the opinion content was unexpected; its paternalistic approach to abortion rights is inconsistent with the otherwise libertarian arguments that he has employed in previous abortion cases. I hypothesize that this might be explained by the presence, within the quartet of Kennedy's clerks, of an individual who wrote these particular views into the Justice's opinion.
At the end of the day, the name on the opinion in Carhart is Kennedy's. He bears the public burden of shouldering responsibility for the opinion's content. However, recent studies tell us never to underestimate the importance of those who clerk for U.S. Supreme Court Justices. In order to understand Carhart, might we have to accept that it is an example of clerkish control?
This article draws on material from my book: Helen J. Knowles, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (Rowman & Littlefield, forthcoming January 2009)
Keywords: Justice Kennedy, law clerks, U.S. Supreme Court, abortion, jurisprudence, legal theory
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