Dun & Bradstreet Revisited - a Comment on Levine and Wermiel
Nelson, Scott L., Washington Law Review
Lee Levine and Stephen Wermiel's account of the internal history of the Supreme Court's decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Ine} convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court's deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet? I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court's deliberations. That would be both improper and impossible. Improper because a law clerk has a duty of confidentiality both toward his or her Justice and toward the Court as an institution; and impossible because, not having worked on the case myself, I have only fuzzy recollections concerning the many twists and turns the Article describes, and certainly none that match the wealth of detail the authors have gleaned from the documentary record.
I will, however, try to situate the case within the broader context of the issues before the Court during the 1984 Term, which may give the reader a more accurate perspective from which to judge whether the story of Dun & Bradstreet is that of a doctrinal perfect storm or a tempest in a teapot - or, perhaps more likely, something in between. I will also comment on the usefulness of the sources relied on by the authors in creating an accurate picture of the Court's workings. Finally, I will offer some brief observations on the issues in Dun & Bradstreet, the problems it posed for the Court, and the decision's place in the evolution of the Court's First Amendment libel jurisprudence.
I. CONTEXT: THE SUPREME COURT'S 1984 TERM
Levine and Wermiel understandably present Dun & Bradstreet as a story of considerable drama, with large issues, including the fate of New York Times Co. v. Sullivan,3 hanging in the balance. The case's odd history, including its reargument and the apparent change in outcome that transformed Justice Powell's opinion from a dissent to a plurality opinion announcing the Court's judgment, as well as the fundamental issues raised by Justice White's concurrence, lends itself to that portrayal. Such a case, readers of their Article might understandably conclude, must have been one of the focal points of the Term when it was reargued, much like last Term's decision in National Federation of Independent Business v. Sebelius,4 in which the Court upheld the constitutionality of the Affordable Care Act and, according to leaks reported in the press, the Court's deliberations led to considerable rancor among the Justices.
But perhaps not. Sebelius was one of only sixty-four signed opinions issued by the Court in cases briefed and argued on the merits in the October 201 1 Term, and it towered in practical, political, and doctrinal importance over most of the other cases on the Court's docket. That is not to say that there were not other important and interesting cases in the 201 1 Term, but much of the Court's small docket was taken up by small cases, half of which were decided unanimously or with only a single dissent.5
By contrast, in the October 1984 Term, the Court disposed of a whopping 139 cases by signed opinions. And Dun & Bradstreet does not stand out now in retrospect, nor did it stand out at the time, as the leading case of the Term or even close to it. Although the 1984 Term was not dominated by any one landmark case like Sebelius, the Term featured a wealth of important decisions in a wide range of areas, and many of them divided the Court at least as deeply as Dun & Bradstreet did.
A few examples, somewhat arbitrarily chosen, will illustrate the breadth of the business conducted by the Court in the 1984 Term. Criminal procedure and death penalty cases were a major focus of the Burger Court, and the Term featured a number of prominent examples: Oregon v. …