Justice Alito's Note in the Yale Law Journal

Lots of discussion of late of Michelle Obama's senior thesis (digging pretty deep it seems to me for a story, but heck I love it when we actually read what others have written and take their ideas seriously).  That's the marrow of intellectual history.  You heard it here at the facultylounge last night--and you can read Elizabeth Redden's excellent article on it in this morning's insidehighereducation. 

Well, given all this focus on student writings, it may now be time to reflect on Justice Alito's note in the Yale Law Journal.  I wrote about it a couple of years ago at propertyprof.  My post was inspired by Ben Barros' Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and How the Supreme Court got to Kelo with Its Eyes Wide Open.  Ben uses notes from the Justices' conferences in Berman and Midkiff to understand what the justices thought they were doing.  As an approach to legal history, reading judges' papers has much to recommend it.  Barros goes a little beyond, I think, purely legal history questions: he's interested not just in what the justices thought they were doing.  He's interested in how that might affect our thinking in subsequent cases.  And his paper suggests that Kelo's in line with Berman and Midkiff.

Alito's Note in the Yale Law Journal employed a similar methodology.  Alito read the justices' notes in the "release time" cases (separation clause challenges to schools' giving release time to students to attend religious instruction).  Alito had a very fine reconstruction of what the justices thought they were doing.  And it was more limited than how subsequent cases interpreted what the justices thought they were doing.  From that, I read Alito as suggesting that subsequent interpretations of those cases ought to be limited.  Pretty interesting methodology for reading precedent, actually: we should go behind what the justices wrote to further limit their opinions.

I thought when I read Alito's Note that it might get some play in his confirmation hearing, because I think that is a window into his thinking (at least as a student).  Pretty interesting to think that Alito was writing advocacy-oriented legal history at the same time that Robert Cover was writing advocacy-oriented legal history (of a more liberal, though not necessarily so) kind.  Alito published his Note in the same year that Cover published Justice Accused: Anti-Slavery and the Judicial Process.  Wow--lots of exciting ideas in circulation in New Haven in 1975.  I wonder what Laura Kalman would have to say about this?

Now, I'm a huge fan of student works; some of my most memorable and enjoyable moments are working with students on their notes.  And I've been real fortunate to supervise some terrific ones on property in the last few years, including Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law. I'm skeptical of how much we can read into a student's jurisprudence, thought I think they may give us a sense of a person's thinking.

So I asked Mr. Justice Alito about this last year when he was in Tuscaloosa for a talk.  Could we draw any inferences from his note.  He didn't think so.

Alfred Brophy

Comments

[Adam Mossoff]

Great post, Al, and really fascinating stuff! But I ask: Why should we restrict our historical research to only the Justices' personal papers?

At a recent conference on regulatory takings, the clerk who worked on the Penn Central case for Justice Brennan -- the official "author" of the opinion -- offered his take on the meaning of the now-famous legal test handed down by Brennan in that case. As reported in a recent article:

"David Carpenter, Justice Brennan's lead clerk on Penn Central, has explained that Penn Central was meant to be written in the narrower argument-framing fashion. On a 2003 retrospective panel on Penn Central, he said he 'thought Justice Brennan was making some modest efforts to bring a little content to an area of law that was . . . then quite formalist and in disarray,' that he was trying 'not [to] say very much before [he] started work on the draft and [that] in fact after it was circulated, Justice Stewart’s clerk read it and said he was pretty sure it [wouldn’t] say anything at all.'"

Eric R. Claeys, The Penn Central Test and Tensions in Liberal Political Theory, 30 Harv. Env. L. Rev. 339, 343 (2006).

This makes me wonder: should legal historians also consider the clerks who've "assisted" in writing Supreme Court opinions in figuring out what the opinion was intended to do?

[Al]

All most interesting, Adam.

I think historians benefit (greatly) by looking at all sorts of sources, including papers of law clerks, to understand what was happening with a case. You'll recall discussion, for instance, of the roles Alexander Bickel and William Rehnquist in _Brown_.

I'm more skeptical, though, of the project of interpreting precedent in light of back stories. That is, I worry about allowing multiple, non-public sources to change how we interpret precedent. Seems to me that as a legal matter we ought to be relying on what the justices have said is their opinion. There's a lot that can and ought to be said on this.