Blackmun Papers Provide a Peek Inside the Court
Materials Include Videotaped Oral History
By Fred Barbash
Washington Post Staff Writer
Thursday, March 4, 2004; 1:40 PM
A vast new trove of material on the hidden workings of the U.S. Supreme Court becomes available today as the Library of Congress opens the papers of former Justice Harry A. Blackmun, covering 24 years of internal court deliberation on issues such as capital punishment, school prayer and especially abortion.
They provide a striking self-portrait of the author of Roe v. Wade, the 1973 opinion legalizing abortion, in which Blackmun is at first oblivious to its potential controversy ("I didn't appreciate it," he says) and then watched as "the roof fell in." Then he is hounded by it for years, buried in mail pro and con, picketed at a speech, wishing it would recede but simultaneously defending it from successive challenges.
Indeed, at one point in 1992 he was convinced that Roe was doomed when a court majority led by Chief Justice William H. Rehnquist appeared ready to effectively overrule Roe and had a draft opinion already in hand.
The day was saved, from Blackmun's point of view, by Justices Sandra Day O'Connor and David Souter who worked successfully behind the scenes to help persuade an anguished Justice Anthony M. Kennedy to abandon the Rehnquist majority in Planned Parenthood v. Casey.
Blackmun retained the note Kennedy sent him to tell him he was switching. "Dear Harry," it said. "I need to see you as soon as you have a few free moments . . . At least part of what I say should come as welcome news."
In the end, Blackmun remained defiantly proud of his achievement but aware, as he said, that "I'll carry it to my grave."
The first accounts of the Blackmun papers, including some of the story described above, came this morning from extracts published on the Web site of National Public Radio and in the New York Times, which were given exclusive advance access by the keepers of Blackmun's papers. A first-of-its kind transcript of a 38 hour videotaped oral history by Blackmun, released to the general public this morning, was in general circulation by mid-morning. The tape was prepared with the help of one of Blackmun's former clerks, Yale Law School Dean Harold Koh.
Blackmun's papers are among several caches on the modern court, including the papers of the late Justices Thurgood Marshall and Lewis F. Powell, Jr. Blackmun's, released in accord with his wishes exactly five years after his death on March 4, 1999, are considered especially valuable because they include relatively recent material, up to his retirement in 1994, and lots of it. He took copious notes at the justices' closed conferences and kept nearly every scrap of paper that crossed his desk.
The materials show some court members finely tuned to the external political implications of their work. Blackmun, in his oral interview, suggests unhappily that Roe v. Wade was delayed a few days so as not to intrude on Richard Nixon's second inaugural.
The behind the scene account also recalls the lessons learned by presidents since the beginning of the Republic: that justices appointed to life terms can and will do as they please, no matter what they did before. Newly independent, constantly reminded by colleagues (according to Blackmun) of the institutional power of precedent, exposed to the persuasive power of more experienced justices, they go where they will.
Blackmun himself was perceived as a cautious Richard Nixon appointee and ended as an unabashed crusader, a frequent ally of liberals William J. Brennan Jr. and Thurgood Marshall, given to passionate dissent when the court tilted against him. O'Connor, Kennedy and Souter, who prevented the overturning of Roe, were all Republican appointees.
Blackmun recalls in the oral history that Nixon, in pre-appointment chats, made not even a subtle attempt to seek out his views. Instead, Nixon wanted to know what Blackmun was worth financially and whether his wife could resist the Georgetown cocktail party circuit.
Kennedy's vote-switching was not unusual for a justice. The Blackmun materials underscore the fluidity of the court's decision-making process. Indeed, NPR reporter Nina Totenberg recounts how Kennedy wrote a draft opinion for a majority in Lee v. Weisman during the court's 1992 term upholding clergy-led graduation prayers in public schools. Then he circulated a note saying his draft "looked quite wrong," and joined the other side with Blackmun, who, as the senior justice, then assigned Kennedy to write the decision declaring the practice unconstitutional.
But the oral history shows most vividly the extent to which Blackmun was moved above all by his experiences with the abortion cases.
"I never thought that I would be standing against the combined might of the Roman Catholic Church and the Mormon Church and 1600 Pennsylvania Avenue and other forces, with all their respected political power," he says in an excerpt reported by NPR.
"It showed me once again that the Federal Bench is no place to win a popularity contest. . . . I suspect I've been called every possible epithetical name, Hitler, butcher of Dachau, Pontius Pilate, Herod, Murderer, Madman."
The papers generally document Blackmun's conversion on capital punishment, at first considering it a matter for the states to decide, later becoming an out and out opponent, based on his view that the death penalty could not be fairly implemented. A scholarly study suggesting that black people and poor people were more likely to be sentenced to death influenced Blackmun's change of heart, the papers show.
He said in the oral history that he was also influenced by the routine of ruling in the middle of the night on requests for stays of execution. "They nearly always hit us in the dead of night."
"We get these calls to rule. I can't speak for the other justices, but the reality of execution comes into the core of one's living that way." He complained that the pro-capital punishment majority is "close to aggressiveness" on the subject. "They seemed to be . . . rather bored with these cases and their voluminous number of petitions right up until the last minute and wanted to put an end or at least to shrink the availability of review of these cases."
The materials supplement existing accounts of the breach over the years between Blackmun and his boyhood friend, Chief Justice Warren E. Burger, as well as the doubts and discontent among some other justices over Burger's management of the court and his intellectual competence. "The chief obviously cannot control the conference . . . all talking at once," Blackmun wrote one day during the justices' closed conference.
The tension, by Blackmun's account, was there from his first years on the court, and continued as the justices were considering the Nixon tapes case, in which the White House was contesting a 1974 court order that it turn over secretly recorded conversations about the Watergate scandal to a special prosecutor.
Burger, as previously reported in "The Brethren" by Bob Woodward and Scott Armstrong, had assigned the case to himself but seemed unable to bring it off.
Other justices, impatient by Blackmun's account, then prepared their own draft, assigning Blackmun to rewrite Burger's statement of the facts of the case. "They were restless and wanted something to do and were dissatisfied with his initial drafts," Blackmun said in the oral history.
"One would say there was a palace revolution. . . . The other chambers were waiting with great anxiety to get it out."
Burger, Blackmun recalled, "was upset and understandably so . . . because very little of his opinion" was being accepted. . . . It was the kind of situation ready made for resentment and misunderstanding. . . . As I recall . . . I think he came in and talked with me at one time. He wasn't very happy about it."
Blackmun, in his oral history, recalls his mother warning him about his what might happen to his friendship with Burger. "She said 'Harry, you're gonna disagree at times and it may affect your friendship adversely. You should be prepared for it.' Well, I thought this was a lot of foolishness," Blackmun says, "but she was never more right."
In fact, Blackmun recounts playful exchanges and note-passing with almost all the other members of the court, save Burger.
Blackmun's collection shows the extraordinary labor involved in mustering a majority on some decisions, with dozens of proposed changes in wording flying back and forth among the justices over a single paragraph or a single word and the occasional frustrations of some justices about the process.
" . . . At some point," Kennedy writes in a memo contained in the Blackmun files and quoted by Totenberg, "an opinion author is tempted to scream 'stop making improvements!' "
Koh, the former clerk who is most familiar with the collection, said that Blackmun did indeed change significantly over time. "What changed for him," Koh said in an interview, "was not his sense of injustice but his view of the capacity of judges to remedy it. You have a clear sense that he felt he found his own voice over the years" and acquired "a readiness to admit mistakes if he hadn't gotten it right the first time."
" . . . I think he started to see far more clearly than he had before that there are many ways in which private and public institutions fail" in fulfilling their duties. "What is the role of the judge in that circumstance?"
Blackmun believed, Koh said, that the judge's role was "to force those institutions to live up to their obligations."
Asked if Blackmun regretted any major decisions, Koh said that there is "a sense that pervades the oral history of someone who's at peace with his career. The issues he had cared about the most were in an equilibrium that he thought was correct."
Koh's decision to give advance access to the Blackmun papers to NPR and the New York Times has sparked some controversy among competing news organizations and scholars.
Koh said he and a committee of former Blackmun clerks were anxious to avoid a crush of fragmentary stories pulled hurriedly from the files. He said they looked at proposals submitted by journalists for exclusive advance access and chose "on the merits" in a way they thought Justice Blackmun would like.
Now, he said, the papers are available to all.
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