He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.
What about his liberal opinion for the Court in Stanley? his clerks would ask.
He had meant only to protect people’s privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.
But, a clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” Marshall retorted. He had never said that.
Yes, the clerk insisted.
No, never, Marshall was sure. “Show me.”
The clerk brought the bound opinions.
Marshall read the relevant section.
“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”