As a general rule, it seems to me that former Supreme Court law clerks, across the ideological spectrum, do an admirable job of resisting the temptation to score political points by purporting to know how the justices for whom they once worked would have ruled on issues in current controversy.
Unfortunately, law professor Robert V. Percival, a former law clerk to Justice Byron White, recently succumbed to that temptation in a particularly egregious way when he wrote a letter to the Wall Street Journal asserting that Justice White, who dissented in Roe v. Wade, would not have wanted to see Roe overturned. Given that White himself called for Roe to be overturned in 1986 and voted again for it to be overturned right near the end of his tenure on the Court in 1992, Percival’s assertion is difficult to take seriously.
I’m pleased to see that the Wall Street Journal has published an excellent letter that takes issue with Percival. I take the liberty of reproducing the similar letter that I submitted:
Law professor Robert Percival claims that Justice Byron White would have opposed the overturning of Roe v. Wade. But whatever insight Percival’s clerkship might have given him into White’s thinking is overwhelmed by a fact that Percival conveniently ignores: White in fact voted to overturn Roe in the 1992 decision in Planned Parenthood v. Casey, more than a decade after Percival’s clerkship.
Percival is also at odds with White when he contends that Roe “wasn’t a political decision.” In his dissent in Roe, White famously slammed the decision as “an exercise of raw judicial power.”