Green on Hamdan (Part II): Who’s the Greatest Clerk Ever?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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4 Responses

  1. formerSCOTUSclerk says:

    Craig writes:

    The case was extraordinarily hard, and Stevens assigned himself the opinion, despite knowing that: (i) very talented dissenters would level a slew of pretty good arguments against him, and (ii) Kennedy’s vote has not proven, shall we say, 100% reliable in such cases. Stevens had to be strong enough to fend off the dissents, but not too strong to hold a possibly wobbly fifth vote.

    This isn’t a very helpful perspective, I fear. JPS doesn’t care one bit about whether persuasive arguments are on the other side; it’s not like he is a lawyer’s lawyer objectively looking for the best argument. He had a result he wanted to reach, and he reached it, and presumably no one on his side really cared whether it was a persuasive legal argument or not. And notably, JPS actually didn’t keep AMK’s vote for the whole enchilada.

  2. Eh Nonymous says:


    You didn’t tell us if you were a clerk for O’Connor, and thus extremely sensitive to the context of the case at hand, or if you were a clerk for Thomas, and thus absolutely committed to overturning wrong precedent, no matter how deeply rooted – unless that precedent merely harms civil plaintiffs and criminal defendants. Or possibly you were a lawyer’s lawyer, like Roberts and his clerks. Or possibly you were a clerk for Scalia, who could care less about persuasiveness of his dissents, so long as he has an opportunity to notch up the level of incivility on the court to which he has a lifetime appointment.

    Not that it’s germane to the substance of your comment.

    JPS’s great strength in majority opinions, I feel, is that his legal reasoning is what he uses to rebut dissents. He seldom drops footnotes castigating the dissents for their (typically) weak-minded cavils. :) That’s a job for concurrences.

    When you say that a judge in the majority doesn’t care a whit about the dissent, you are saying that the holding need not make apologies for those who are catcalling from the sidelines. The sidelined judges may have persuasive reasoning, but they are not espousing the Law – unless you are a lawyer’s lawyer type, and believe in a Platonic Ideal of Law.

  3. Steve Vladeck says:

    Craig — Although I’m delighted (and on record as such) at the result here, and at the work of Justice Stevens (who may have won the battle on Ahrens in Rasul only to lose the war in Padilla), I wonder if you’re being a bit too quick-on-the-trigger vis-a-vis Yamashita… You would surely know better than I, but I doubt the late Justice Rutledge would have been content even with a “duly authorized,” “properly constituted” military commission. I always understood Rutledge as preferring that part of Milligan that wasn’t unanimous — that not even _with_ Congress could the government so quickly subject alleged enemies to military process. What I see in Hamdan, in contrast, is the unanimous part of Milligan — the President can’t do it without more from Congress… An important statement, to be sure, and one with which Justice Rutledge would surely have agreed, but I’m not sure it’s quite the vindication of Rutledge’s wonderful dissent…

    Perhaps time will tell.

  4. Bruce says:

    He had a result he wanted to reach, and he reached it, and presumably no one on his side really cared whether it was a persuasive legal argument or not.

    Now that’s a helpful perspective.