By Stephen B. Burbank[*]
[Editor's Note: This piece is a response to a forthcoming article in the Northwestern University Law Review by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal, titled Ideological Drift on the Supreme Court: Who, When and How Important?, 101 Nw. U. L. Rev. (forthcoming 2007). Last week, we posted an introduction to the piece by Epstein et al., 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]
Long before there was talk of a "Greenhouse effect," there was talk of Harry Blackmun changing color. Or at least there was in the chambers of Chief Justice Warren Burger, where I was a law clerk during the October Term 1974. The inspiration for the image we used to describe the 1974 Term came not from the distinguished journalist, only then beginning her career and not yet covering the Court, but from a book by Charles Reich. Our view of the cause of Blackmun's metamorphosis lacked grounding in a theory more general (or elegant) than the susceptibility, particularly of the insecure, to Irish charm. We had no doubt that Justice Brennan had made Harry Blackmun his project, and we thought (without seeking systematic empirical evidence) that the object of his attentions found them difficult to resist. I well recall my co-clerk's remark upon seeing a letter from Justice Brennan joining, with praise that seemed excessive, an opinion by Justice Blackmun. Noting that the join letter arrived within minutes of the opinion, he speculated that they had passed in the halls.