How The NSA’s Sausage Got Made

Whether you’re a fan of Judge Richard Leon’s or Judge William Pauley’s opinion on the [un]constitutionality of the NSA’s spying on every American’s telephony metadata, the Supreme Court opinion in Smith v. Maryland stood at the crux of the ruling.  The majority opinion in the 1979 case was written by Justice Harry Blackmun. Or at least, signed off by him.

Via baby lawprof, Josh Blackman, comes a most extraordinary bit of inside info:

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This opinion, now the critical linchpin of the future of privacy for American society, was not only written by the judge’s clerk, but written hastily, without much effort (as befit the case) and, well, cavalierly.  According to Josh, this wasn’t unusual.

[I]t was fairly common for Justice Blackmun to delegate the task of writing opinions entirely to the clerk.

As we ponder the great mysteries of how our law became so terribly convoluted (and I mean that in the sense of “fucked up,” but I prefer not to use such language so I won’t), add to the equation that opinions that determine the constitutional rights of hundreds of millions of people for generations, if not forever, come from the minds and hands of twenty-something law clerks, the ones we hated in law school who were doomed to edit law reviews, who may or may not have experienced the joys of sex.

So the future of human privacy required little more than some common sense and a straightforward application of Katz, Miller and White (Oxford comma omitted because I reject its existence)?  Unless the underlying purpose of the Supreme Court is to assure in perpetuity that law enforcement’s ability to access our every thought is protected, there is nothing straightforward about it.  And as for common sense, don’t even go there.

Should you wonder what became of this law clerk who thought the opinion in Smith was so unworthy of his time and effort, “AGL” is Albert G. Lauber, a United States Tax Judge and adjunct prawf at Georgetown law school. Yes, that would be the same school where Bill Otis also shapes young minds as an adjunct.

But this all happened ages ago, in 1979 when disco, Huckapoo shirts and Jordache jeans were all the rage.  And it serves as the foundation for the decisions that will determine whether the United States of America will enjoy the blessings of privacy ever again.

H/T Marilou Auer

14 comments on “How The NSA’s Sausage Got Made

    1. SHG Post author

      Disgusting? Outrageous? Unsurprising? I really don’t know how to react to one of the nine most powerful people in this nation delegating his authority to kids who have yet to grow pubic hair.

  1. bmaz

    I’ve known from talking to them that SCOTUS clerks carried a great deal of input, but this is off the charts freaking ridiculous.

    1. SHG Post author

      Not too long ago, I wrote about the nature and influence of law clerks on circuit opinions. It was a reflection about having children without the real-world experience of a gnat affecting the lives of real people. It was not a flattering post.

      A handful responded that they were just there to serve the judge and wielded no real influence, the company line. While it may be true for many judges, it was never true for all and even for the many, the input of clerks remains a blight beyond their comprehension.

      1. Jeff Gamso

        I’ve clerked in both state and federal trial courts, both for an individual judge and in a pool. I wasn’t a kid, but I was a new and then somewhat new lawyer. From what I’ve seen and experienced, I can say that even when clerks didn’t have too much influence, they (we, I) had too much influence. Of course, some judges relied more and some less on the clerks. It would depend on the case and the clerk and the judge. But even when it wasn’t much, it was almost always too much.

        I can’t say we made much law of consequence except to the parties (these were trial courts, after all), but we affected real people and real businesses. And once in a while . . . .

  2. John Barleycorn

    Without Disco where would modern age DJ’s get their remix cuts from?

    Without huckapoo shirts would WKRP in Cincinnati have had the run it did?

    Did Farrah Fawcett ever do Jordache jean commercials?

    1. SHG Post author

      Very deep and philosophical questions. It almost makes the 70′s not seem like a terrible waste of a decade.

        1. John Barleycorn

          Kidney stones and a waste?

          Buckle up lads the 70′s are coming back and it’s going to be fun, fun, fun.

          Besides this time around the clerks have Google and Wikipedia to assist with the straight forward application of common sense delegated to them.

          If that doesn’t work out according to plan there is still a one in five chance they will stumble on the Simple Justice archives.

          I would hope this possibility alone keeps our esteemed host blogging away for another ten years.

          It is anyone’s guess how far off the reservation the boldest and brightest clerks will stray in the New 70′s.

  3. Marc R

    SHG,

    This (the one I’m writing this second) should be updated for your #1 blawg post of the year (yes it’s a comment not a blawg post). I’ve separately emailed you my Lexis password, a copy of last quarter’s UVA LR, a few porn links, and the Des Moines phone book. It’s pretty straightforward. Everything else should be at your local Jaguar dealership.

    M

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