Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published in 2001. Yale Law and Policy Review 19 (2): 341-379.

Lee Epstein
Jack Knight


For an institution that takes great pride in following various norms and conventions, the Supreme Court of the United States is notorious for departing from those very norms and conventions when it sees fit or when the circumstances seem to necessitate it. Some incursions occur on a case-by-case basis: "The Rule of Four," dictating that the Court will grant review only to those certiorari petitions that obtain positive votes from four Court members, usually holds but sometimes does not; the principle of stare decisis, declaring that past decisions should guide future ones, appears as a rationale in many opinions but certainly not all. Other departures, once they have occurred, have had more lasting effects, such as the demise of the norm of consensus, under which the justices rarely made public their private disagreements; or the transformation of the junior vote rule, under which the newest member of the Court voted first at Conference, to the norm of seniority, under which the Chief Justice, followed by the Associates in order of seniority, now votes first.

And, yet, in all of these departures one norm seems nearly unflappable; namely, justices should and do not go public with private information about the Court's deliberations over particular cases. To be sure, justices occasionally leave trails in the form of documents found in the personal papers they have deposited in libraries and public institutions but, to the extent that it is up to others to follow the trail, the justice him or herself has not pierced the veil. Also, to be sure, some violations have occurred; leaks on the Court, whether from clerks or the justices themselves, seemed so egregious to Chief Justice Warren E. Burger that he appointed a committee of his colleagues to "to look into the problem." Nonetheless, it is fair to say, whether out of some sense of institutional or personal loyalty, the norm of secrecy is, in fact, a norm to the extent that the vast majority of the Court's members have followed it, continue to do so, and are sanctioned when they do not.

Almost unbroken adherence to this norm for more than a century makes the document contained in this Article so extraordinary. At some point during or perhaps shortly after the Court's private deliberations over Regents of the University of California v. Bakke Justice William J. Brennan, Jr., wrote (in long hand) a 37-page narrative about what was transpiring with the Court. What Brennan planned to do with it, we cannot be absolutely certain. What is clear: His musings on Bakke provide perhaps the most revealing first-hand account of the Court—its inner workings, its personnel, and its deliberative process—ever produced by a justice.

This uniqueness alone makes his narrative worthy of careful study. But there is more: We can hardly imagine a more interesting and important case for analysis. Even though it is fast approaching its 25th anniversary, Bakke continues to resonate with Americans. Scholars and others have produced nearly 20 books dealing with the decision in some significant way; the case name appears in nearly 2,000 law review articles. Every U.S. Court of Appeals has cited Bakke at least once, as have nearly 30 state appellate courts. Attorneys too have managed to work the decision into more than 500 briefs filed on the merits of cases before the U.S. Supreme Court. So too and despite the passage of time, Bakke and affirmative action more generally, have remained high enough on the public's agenda that all presidential contenders, since 1978, have taken a stand on the issue and that not a year has elapsed without some survey appearing on the subject.

What those surveys reveal, of course, is that Americans were and remain divided over whether minorities and women should receive preferential treatment in hiring, promotion, and admission to universities and other areas of American life. What Brennan's narrative reveals is that the justices were divided in ways that the opinions do not necessarily reveal. So, for example, we learn that Thurgood Marshall did not merely dissent from portions of Lewis Powell's plurality opinion; he was, according to Brennan, "livid" over Powell's writing, "which [Marshall] regarded as racist." Brennan's narrative is replete with other examples of a group of Americans - albeit a uniquely situated one - grappling with one of the most complex issues of our times and attempting to persuade each other of the "correctness" of their views.

The narrative itself begins in May of 1978, with Brennan reporting that Justice Harry Blackmun--after months of apparent indecision—finally cast his (initial) vote. This is somewhat unfortunate since awareness of the Court's internal deliberations leading up to Blackmun's vote may be critical to developing a full appreciation of Brennan's story. To fill this gap, we provide, in Part I, a chronology of the CourtÕs internal deliberations over Bakke prior to May 1978, a chronology that we developed from materials located in the private papers of Justices William J. Brennan, Jr., Thurgood Marshall, and Lewis F. Powell, Jr. Other scholars have provided commentary and insights into some of the events denoted below. We do not; rather we lay out the facts and let readers - perhaps via Brennan's insights - reach their own conclusions. Following the chronology, in Part II, we reprint Brennan's narrative in its entirety. Although we have not changed any of his words, we have annotated the document, adding notes to fill in pieces of the story he omitted and to provide readers with full texts of various letters and memoranda to which he refers. Part III houses a brief epilogue.

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