As many readers of this blog know, I have argued that in certain circumstances, it makes sense for the Supreme Court to announce murky (or judicially unmanageable) standards when creating new election rules. Such rules, among other things, give the Court flexibility in crafting the best constitutional constraints on election laws.
This past weekend I was at the Library of Congress looking over some of Justice Blackmun’s papers in election law cases. I was particularly interested in the Munro papers, because that case figures prominently in an article I am writing. In any case, I came across this memorandum from Blackmun law clerk (and now Georgetown professor) Chai Feldblum to the Justice, noting some problems with Justice White’s draft opinion in Munro. Feldblum recommended some changes to clarify Justice White’s draft.
At the bottom of the memorandum in pencil (this may be hard to see on the pdf), Justice Blackmun had written “It may be best to leave it somewhat messy.”