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.
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