Helen J. Knowles-Gardner (Institute for Free Speech) has posted Forming an Opinion: The Collegial Crafting (and Co-Authoring) of NAACP v. Alabama ex rel. Patterson (1958) on SSRN. Here is the abstract:
On June 30, 1958, the Supreme Court issued its landmark expressive freedom ruling in NAACP v. Alabama ex rel. Patterson (1958). It was a decision of seismic proportions, with major, long-lasting positive implications for First Amendment freedoms. But who wrote the opinion for the unanimous Court, declaring that Alabama’s demand that the NAACP disclose, to the state, the names and addresses of its Alabama members, was unconstitutional because: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs”? Of course, the official answer to that question is Justice John Marshall Harlan, II. That is what the Court’s printed decision, in Volume 357 of the U.S. Reports, tells us: “MR. JUSTICE HARLAN delivered the opinion of the Court.” The actual answer to the authorial question is far more complex, and far more intriguing.
This Article tells the story of the collegial crafting of Patterson (including discussions of the granting of certiorari, the law clerks’ bench memos, and the oral argument in the case), and shows that Justices Felix Frankfurter and William O. Douglas played an enormously important, and profoundly “creative role” in the opinion-writing process. In fact, such was their influence, that it would not be unreasonable to say that the doctrine that emerged from Patterson was co-created by – and thus, should be co-attributed to – Harlan, Frankfurter, and Douglas.
This Article (which is the fourth part of an extensive research project detailing the history of the NAACP v. Alabama litigation) reaches that conclusion by making extensive use of the opinion drafts, and justices’ memos, that are contained in the archival collections of the papers of all the justices who participated in Patterson.
Recommended.