In a very controversial feature article in Legal Affairs, David Garrow asserts that Justice Blackmun deferred much of his work to his clerks -- possibly to the point where they determined his vote. His analysis of Blackmun's papers includes evidence that Blackmun's signature decision, Roe v Wade, had considerable input in form and direction from his clerks.
Frampton [a clerk] also told Blackmun about an analytical distinction that would prove crucial in the final Roe and Doe opinions. "I have written in, essentially, a limitation of the [abortion] right depending on the time during pregnancy when the abortion is proposed to be performed," Frampton explained. "I have chosen the point of [fetal] viability for this 'turning point' (when state interests become compelling) for several reasons: a) it seems to be the line of most significance to the medical profession, for various purposes; b) it has considerable analytic basis in terms of the state interest as I have articulated it. . . ."This is disputed by others, however, including the Chairman of Legal Affairs, Seth Waxman, who says
"By selecting viability," Bezanson [another clerk] asked Blackmun, "would you not be suggesting that prior to that point no limitations could be placed on abortions (except those permitted in your opinions as they now stand)." Bezanson then offered an analysis that decisively shaped how Roe would balance the woman's right and the state's interests throughout pregnancy...
Like most of this magazine's readers, I never had the privilege to clerk for a Supreme Court justice or to meet Justice Blackmun. But my work before that court and its justices leaves me certain, and saddened, that this issue of Legal Affairs departs from its worthwhile mission.As they say, incoming...