Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
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WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
IV. ACT IV—DEFENDING SULLIVAN AND REGRETTING GERTZ On March 4, 1985, still recuperating and “handicapped here in the apartment without books and face-to-face discussion with Justices as well as” his clerks, Powell dictated a “MEMO TO MYSELF,” in which he once again attempted to sort out his options.446 In it, he made a telling, albeit private, concession: As I view it now, my opinion in Gertz is an example of overwriting a Court opinion. I said much that was unnecessary to a decision of that case. A large part of Gertz is dicta.447 Thus, Powell found himself “left in something of a dilemma particularly in view of what I wrote (perhaps unnecessarily) in Gertz.”448 A.
The Contours of Compromise
As Powell continued to assess his options, his clerk talked to Rehnquist’s and confirmed that Rehnquist was asking Powell “to drop entirely the private expression prong of your ‘private expression on a matter of private concern’ test,” which Powell’s law clerk reminded him makes Rehnquist’s “position practically identical” to White’s.449 On March 7, therefore, Powell sketched out by hand the contours of a “possible compromise.”450 He could, he wrote, “de-emphasize” his previous reliance on the concept of “private expression,” retain his “emphasis on ‘private concern’ but leave open when expression may be viewed as public.”451 Thus, in Greenmoss Builders, “where there was no public interest in the [New York Times] sense, I’d reach [the] same result if D&B had circulated to 1000 customers.”452 Such a narrow holding, Powell thought, would leave open the question of constitutional protection in a case in which “the D&B report to 1000 had said the only bank in town was bankrupt,” which would presumably be a matter of
446. Personal Memorandum of Justice Powell 1 (Mar. 4, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 447. Id. at 1–2. 448. Id. at 5. 449. Memorandum from Daniel Ortiz for Justice Powell 1 (Mar. 5, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 450. Personal notes of Justice Powell (Mar. 7, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 451. Id. 452. Id.