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June 27, 2008

Justice Stevens Should Be Keeping a Closer Eye on His Clerks

David Hardy noticed some factual errors in Justice Stevens' Heller dissent:

Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."

Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.

I'd add that at 41 he refers to:

"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."

Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)

On the next page Perpich says that Congress in 1903 enacted the Dick Act, which created the "National Guard of the Several States."

Certainly they aren't earthshaking mistakes; correcting them wouldn't change Stevens' conclusions. But they do indicate carelessness from him and from his clerks. We all know he's not the first jurist to make small mistakes of fact, or even large ones. But Hardy's post put me in mind of a notable error in one of his more important recent opinions which made a complete mess of international law.

In Hamdan, Stevens wrote the majority opinion which rested in part on the preposterous idea that the U.S. conflict with Al Qaeda is global, but "not of an international character." Later, it turned out that conclusion was taken verbatim from an amicus brief by some law professors who conveniently elided a critical quote from an international law treatise:

Did the Court engage in a deliberate manipulation or distortion of authorities, as it seem to be the case? Well, no, but that actually doesn’t make things any better. To my surprise, I found out that the Court’s miscitation and misquotation of the Commentary in fact fully reproduces the exact same error in citation and the exact same incomplete quotation in an amicus brief on IHL submitted to the Court by Professors Jinks, Goodman and Slaughter (Hamdan at p. 68, amicus brief at p. 19 – please do look for yourself).

This shows beyond any doubt that the Justices (and, worse, their clerks) DID NOT EVEN READ the Commentary on the Additional Protocols which they cited, certainly one of the most authoritative works on the issue in question.

Stevens' mistake is now binding precedent in the United States. Whoops. (Although, to be perfectly honest, I expect Stevens would have come to the same conclusion by other means if he had been aware of the error.)

Anyway, as I was reading through his dissent's version of the Second Amendment's history today, I found myself thinking how much trouble we would be in if Michael Bellesiles hadn't been so thoroughly discredited. Professors can be trouble. Law clerks, too.

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posted by Gabriel Malor at 01:19 AM

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