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.Therefore, I think I should join your opinion in its entirety.Ido so with pleasure.(Blackmun 1988f )Thus, in this case, Brennan could have chosen to write a concurrence; however,he decided that to do so would only serve to confuse the lower courts whilethe result would still be the same.Had Brennan only been concerned withthe vote or outcome in the case he would not have issued the memoranda inthe first place.Had he solely been concerned with expressing his own viewof the law he would not have ultimately decided against writing separately.In short, Brennan s concern for clarity in the law trumped his individualdisagreement with Blackmun.When more than one justice wanted a particular change, it seemsthat Blackmun and Marshall were more likely to accommodate them.InThornburgh v.Abbott (1989), regulations promulgated by the Federal Bureauof Prisons permitted federal prisoners to receive publications from theoutside, but authorized prison officials to reject incoming publications thatwere found to be detrimental to institutional security.Inmates and publish-ers claimed that these regulations violated their First Amendment rightsunder the standard of review enunciated in Procunier v.Martinez (1974).InMartinez, the Court struck down California regulations concerning personalcorrespondence between inmates and non-inmates, reviewing the regulationsunder the following standard:First, the regulation or practice in question must further animportant or substantial government interest unrelated to thesuppression of expression.Prison officials.must show that aregulation authorizing mail censorship furthers one or more of thesubstantial governmental interests of security, order, and rehabilita-tion.Second, the limitation of First Amendment freedoms mustbe no greater than is necessary or essential to the protection ofthe particular governmental interest involved.Thus a restriction oninmate correspondence that furthers an important or substantialinterest of penal administration will nevertheless be invalid if itssweep is unnecessarily broad.(Martinez 1974, 413 14)In Blackmun s first draft, he upheld the regulations, distinguishing the casefrom Martinez.White wrote a memo to Blackmun, stating: I m not surewhere your draft leaves Martinez.But I shall likely be with you unless thereis other writing expressing a cleaner break with Martinez, in which event Potential Concurrences 55I would want to consider that view (Blackmun 1989i).Rehnquist thensent Blackmun a memo, expressing agreement with White. Like Byron, Ihad hoped that this case could be used to limit Martinez more than yourcirculating draft would do.I think that under the principles you enumer-ate in your draft with which I fully agree Martinez should be limited tooutgoing correspondence.Even if you prefer not to decide that in this case,it seems to me that the question should be at least left open. He thensuggested some changes to the opinion. If you can make these changes,or ones accomplishing substantially the same result, I will be happy to join (Blackmun 1989j).Scalia sent a memo to Blackmun, in which he also agreed with White. Though, like Byron, I would prefer to overrule Martinez, I can with oneexception go along with your careful distinguishing of it. He then suggesteda modification of footnote 11 (Blackmun 1989k).Blackmun then responded to the memos:My conference notes are not very helpful as to whether any deci-sion was made concerning the treatment of Martinez.Certainly, atthat time a majority did not express a desire to overrule Martinezin its entirety.At least two of you appear to be ready to take thatstep now.My notes also do not clearly disclose whether therewould be a majority to cut back on Martinez by confining itsapplication to outgoing mail.In an endeavor to bring this to ahead, I am circulating a second draft.It is generally responsiveto the Chief s and Nino s suggestions, but not entirely so becausethey are in partial disagreement.What I have done, however,at the end of Part III of the opinion, is to state flatly that anyMartinez precedent is confined to outgoing mail.I am willingto take that step, and I suspect that the three of you would doso, too.(Blackmun 1989l)Because three justices wanted the opinion to limit or even overrule a particu-lar case, Blackmun, although not agreeing to overrule the case, did limit itsapplication rather than distinguishing it.The memos circulated in this casealso show how the majority opinion writer preemptively accommodates theviews expressed at the conference.In this case, Blackmun s notes were notclear on this issue; thus, he was not able to preemptively accommodate theirconcerns, which led to the suggested changes.If those changes had not beenmade, more than likely the three justices would have written a concurrenceexpressing their views regarding limiting or overruling Martinez.Another case in which more than one justice wanted a particularchange was Adams Fruit Co.v.Barrett (1990).In Adams Fruit Co., the issue 56 Concurring Opinion Writing on the U.S.Supreme Courtwas whether exclusivity provisions in state workers compensation laws barredmigrant workers from bringing suit under the Migrant and Seasonal Agri-cultural Worker Protection Act.18 After Marshall circulated his first draft,O Connor wrote a memo in which she expressed concerns with the first draft.Specifically, [t]he opinion adopts several presumptions which I am inclinedto think are unnecessary and unwarranted. Based on those concerns, sheinformed Marshall that she intended to write separately, although she agreedwith the result (Marshall 1990a).Scalia then wrote a memo in which heexpressed problems with the opinion that prevented him from joining andstated that he would wait for O Connor s concurrence.First, he wrote:I do not recall petitioner s making the argument that, whereCongress authorizes a private right of action to vindicate a fed-eral right, we should generally presume that Congress intends towithdraw the right of action where an alternative state remedyis available. If the argument was made, it is so absurd that itshould not be dignified with refutation.If we do refute it, however,I am not sure I agree that there is an opposite presumption. Federal rights supplement state-created rights unless otherwiseindicated.If that is what you mean by a presumption I guess Iagree, but it seems strange to call it a presumption.In any case,I do not agree that the presumption (if one calls it that) maybe overcome only by clear, express language to the contrary. Itseems to me that this entire discussion needlessly leads us intodifficult terrain.Scalia also expressed the following problem with the first draft:I do not think that an issue of federal pre-emption of state lawis created by a state law that purports to eliminate the effect ofa federal statute (here, supposedly, the Florida workers compexclusivity provision).Rather, I would describe that as an issueof state pre-emption of federal law which is easily resolvedby saying that there is no such thing.Whatever there was topetitioner s failure to pre-empt exclusivity argument could easilyhave been answered by saying that there is no reason to believeFlorida s exclusivity provision was directed at federal law, and thatif it was it would be unconstitutional.Once again, I think weneedlessly traverse difficult terrain.(Marshall 1990b)The next day, White sent a memo to Marshall, agreeing with most ofScalia s views (Marshall 1990c)
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