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Reason
Reason
Politics
Josh Blackman

A Scalia Clerk and A Stevens Clerk from OT 2007 Talk About Heller

District of Columbia v. Heller was decided during the OT 2007 Term. Justice Scalia wrote the majority opinion and Justice John Paul Stevens wrote the principal dissent. In 2019, Justice Stevens wrote an article for the Atlantic charging that Heller was the worst decision of his tenure. And in the essay, he highlighted the role his law clerk, Kate Shaw, played during that case.

Before the argument, I had decided that stare decisis provided a correct and sufficient basis for upholding the challenged gun regulation, but I nonetheless asked my especially competent law clerk, Kate Shaw, to make a thorough study of the merits of the argument that an independent review of the historical materials would lead to the same result. I wanted that specific study to help me decide which argument to feature in my dissent, which I planned to complete and circulate before Scalia completed his opinion for the majority. Shaw convinced me that Miller had been correctly decided; accordingly, I decided to feature both arguments in my dissent, which we were able to circulate on April 28, 2008, five weeks before Scalia circulated the majority opinion on June 2, 2008.

Shaw, now a law professor at Cardozo, wrote an op-ed in the New York Times with John Bash, who clerked for Justice Scalia during OT 2007. I am not aware of any public statement that Justice Scalia made identifying Bash's role in the process. The Op-Ed is titled, "We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong." And the authors acknowledge that they had assisted their bosses with their respective opinions:

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