The New York Times In America
 
March 4, 2004

THE BLACKMUN PAPERS

Documents Reveal the Evolution of a Supreme Court Justice

By LINDA GREENHOUSE
 

 

WASHINGTON, March 3 — In the spring of 1992, Justice Harry A. Blackmun's struggle to preserve the right to abortion he had articulated for the Supreme Court two decades earlier was headed for bitter failure.

Five justices had voted in a closed-door conference to uphold provisions in a restrictive Pennsylvania abortion law. Roe v. Wade was in peril.

Then, suddenly, everything changed. A letter from Justice Anthony M. Kennedy, whom Justice Blackmun had long since written off as a potential ally, arrived at his chambers.

"Dear Harry," the letter began. "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news."

It would be another month before the nation learned the news that Justice Kennedy delivered in person the next day: a trio of Republican-appointed justices had secretly formed a team to preserve the right to abortion. After the meeting, Justice Blackmun picked up a pink memo pad and scribbled, "Roe sound."

The news was a gift that brought vindication, and not only because Justice Blackmun knew he would be remembered for the opinion he had produced at the start of his Supreme Court career. In ways he could not have predicted, the experience of writing and then defending Roe v. Wade had changed him, launching the middle-aged Nixon appointee on a journey that now found him, at 83 and nearing retirement, the most liberal member of the Supreme Court.

He had been a central figure at a time of transition, someone who first curbed the liberalism lingering from the Warren court, then acted as a brake on the rising conservative forces of the Burger and Rehnquist courts.

It was a remarkable evolution, the outline of which is apparent from the official record of votes and opinions in the thousands of cases that came before the court during his 24-year tenure. But Justice Blackmun left behind much more. He had collected more than a half-million letters, notes, memos and journals that provide a fuller portrait of him and offer insights into the life of the court during the last quarter of the 20th century.

After retiring in 1994, he gave the papers to the Library of Congress on the condition that they remain closed for five years after his death, a restriction that expires Thursday. That unusually short period allows the public to learn his views of colleagues still on the bench, something justices do not often permit. The New York Times got an advance look at the documents.

They disclose behind-the-scenes shifts during decision-making and the origins of important rulings, including Roe v. Wade. The papers show the disarray of the Burger court and the relative calm of the Rehnquist court. They also tell a very human story: how the long friendship between Warren Burger and Harry Blackmun could not survive the cauldron of their joint service on the nation's highest court.

And they help explain one man's journey. Justice Blackmun did not simply stand still while the court around him became more conservative. His movement across the court's spectrum was not just relative, but absolute; while the court went in one direction, he went in another.

A dissenter from the court's 1972 decision that struck down all existing death penalty laws, he ended his career in 1994 with a ringing denunciation of capital punishment that left him as the court's sole categorical dissenter on the issue. His papers contain the record of a painful episode in his pre-Supreme Court judicial career, when he yielded to collegial pressure and withdrew remarks indicating his personal opposition to the death penalty.

His regret was lasting; his parting statement on the issue — "From this day forward, I no longer shall tinker with the machinery of death" — may have been a long-delayed expiation.

At first a skeptical bystander while the court wrestled with whether to expand constitutional protection for women's rights — in his private notes, he disparaged a brief filed in a sex discrimination case by Prof. Ruth Bader Ginsburg as "filled with emotion" — he eventually enlisted in the cause and expressed the hope that his work had contributed to "the progress of the emancipation of women."

Although he kept a journal of sorts and compiled sketchy notes for a memoir, which are included in his papers, Justice Blackmun never settled on a narrative that explained his own life. "I feel as though I have been a cork on a fast-moving stream propelled by forces over which I had little control," he wrote in notes for a speech at the Aspen Institute in Colorado after his retirement.

Yet in that same draft, he also suggested that in grappling with the ideas that came his way, he had been something more than a passive participant in the education of Harry Blackmun. "There is a broad education to be gained in constitutional philosophy when one comes to the Supreme Court," he wrote.

Shaped by Roe v. Wade

A political scientist, Joseph F. Kobylka of Southern Methodist University, who has been working on a biography of Justice Blackmun, sees Roe v. Wade as a catalyst for many of the changes in Justice Blackmun's approach to issues. Their correspondence and some of Professor Kobylka's draft chapters are among the papers.

The effort of defending the right to abortion in an increasingly hostile climate made Justice Blackmun more sensitive to women's rights and to equality claims in general, Professor Kobylka has written. Similarly, he argues, Roe v. Wade also turned Justice Blackmun into a strong defender of free speech; his first opinion for the court in the area of commercial speech, a landmark decision, found First Amendment protection for a Virginia newspaper publisher who printed an advertisement for an abortion referral service that was then illegal.

"He was not a man with a generalized philosophy," Prof. Richard Epstein of the University of Chicago said of Justice Blackmun. "He was an absolute straight shooter who thought that hard work would get him to the right place."

Among the papers — contained in more than 1,500 boxes — are memos Justice Blackmun dictated to himself while preparing to hear arguments, revealing his responses to the cases. He also took notes at the justices' closed-door conferences after arguments and kept an "opinion log" as cases moved through the decision-making process, showing the court at work in real time. He even kept notes the justices passed along the bench during arguments ("V.P. Agnew Just Resigned!! Mets 2 Reds 0.")

One of the surprises in the papers is the revelation that Justice Kennedy changed his mind midway through another major case in 1992. That case, Lee v. Weisman, challenged the constitutionality of clergy-led prayers at public school graduations.

Assigned by Chief Justice Rehnquist to write the opinion for a 5-to-4 majority upholding the prayers, Justice Kennedy informed Justice Blackmun, who was one of the four dissenters, that after several months "my draft looked quite wrong." His new draft, declaring the prayers unconstitutional, became the opinion for the new 5-to-4 majority.

While Justice Blackmun played an important role in the court's decisions on free speech, religion, and federalism, research for this article focused on the evolution of his views on abortion and the death penalty, the areas for which he was best known.

His years on the court spanned a tumultuous period. He arrived in June 1970; 16 years after Brown v. Board of Education, the court was still dealing with the legacy of segregation. The Bakke case and the subtleties of the debate on affirmative action lay ahead. So did Watergate and its dramatic clash of presidential and judicial power. So did recognition of sex discrimination as a constitutional harm.

On the court, the old liberal order was vanishing. Chief Justice Earl Warren had retired a year earlier. Justice Hugo L. Black would be gone in little more than a year, William O. Douglas in five. It would be more than two decades before a Democratic president would have a chance to make a Supreme Court nomination.

By the time he joined the court, the seat vacated by Justice Abe Fortas had been empty for more than a year. Harry Blackmun was President Nixon's third choice, "Old No. 3," as he liked to call himself.

At 61, with 11 years on a federal appeals court behind him, he was neither inexperienced nor unsophisticated. But the transition was difficult, and an early incident shook his confidence. He was laboring over some of his first dissenting opinions when Justice Black complained that Justice Blackmun's failure to deliver them was holding up the announcement of decisions in two cases.

"I think it would not be inappropriate, without criticizing anyone on the Court, to state that I believe we are further behind in handing down opinions at this time of year than we have ever been since I became a justice, more than 33 years ago," the 84-year-old Black wrote on Jan. 11, 1971.

He distributed his letter to the other justices. In an institution where ritual politeness is the norm for internal communications, this was a stinging rebuke from an iconic figure. He also misspelled his new colleague's name as "Blackman." After the new justice replied defensively, Justice Black backed off.

Confronting Capital Punishment

A number of death penalty cases were working their way toward the court, and as his second term was barely under way, Justice Blackmun had to confront a question that troubled him throughout his judicial career: how to reconcile his personal opposition to capital punishment with his vision of the role of a judge. It was to be the great challenge of his decades on the court, and he struggled over it more than he did over abortion.

His papers from his tenure on the United States Court of Appeals for the Eighth Circuit tell of the first time he dealt with the issue. The case was Pope v. United States, a murder case that had fascinated the Midwest. Duane Pope was not a hardened criminal but a college football star, raised on a Kansas farm, who days after his graduation robbed a bank and killed three people. All seven appeals court judges voted in 1967 to uphold his conviction and death sentence. The opinion fell to Judge Blackmun.

To his draft, he added a concluding paragraph expressing doubt about the suitability of the sentence and about capital punishment in general. Perhaps executive clemency would be appropriate, he said.

The paragraph caused a stir inside the court. Two judges called it "gratuitous." Judge Blackmun removed it, but he was deeply wounded. "I strongly feel that the characterization by two of you that that paragraph is `gratuitous' is unfair," he wrote. "The paragraph was written out of a feeling of sincerity and conviction on my part."

The others then took offense, with one suggesting that Justice Blackmun had accused him of unfairness. The conflict passed after another judge intervened. But Justice Blackmun was left with regret.

Seven months later, he recounted the episode in a letter to his friend, Warren Burger. "I continue to kick myself for withdrawing my comment about capital punishment," he said. "In retrospect, I suppose it was expediency, namely to avoid a hoedown on the court. Yet, I was right about it and one never should compromise when one is right."

Now, on the Supreme Court, he faced the issue again. "I am, of course, on record as opposing the death penalty as a policy matter," he wrote in a 1972 memo to himself as the court was preparing to rule that all existing death penalty laws were unconstitutional. "I meant to say it in the Pope opinion for the Eighth Circuit, but this was withdrawn by the urging of a majority of the court." He still believed, as he wrote in his dissenting opinion, that the question was one for legislators rather than judges.

Four years later, Justice Blackmun went along when the court reauthorized the death penalty. By the mid-1980's, though, more and more appeals for last-minute stays of execution were reaching the court. How to handle these requests became an urgent matter in the summer of 1985 as Florida was preparing to execute Willie Darden, convicted of robbing and murdering a furniture store owner.

Justice Blackmun joined three others in providing the necessary four votes to hear Mr. Darden's appeal. But a fifth vote, necessary to grant the stay, was lacking. For a sickening few hours, plans moved along to execute someone whose appeal the court deemed worthy of attention. With hours to spare, a reluctant Justice Lewis F. Powell Jr. offered the fifth vote for a stay.

Justice Blackmun's file documents the bitter clash that resulted. The next day, Justice Powell called for a change in the court's rules to avoid what he called manipulation in capital cases. It should take five justices, not the usual "rule of four," to hear such an appeal, he said.

Justice William J. Brennan Jr. countered that it should take only four, not the usual five, to grant a stay of execution. As tempers and rhetoric became more heated, Justice Rehnquist intervened. Perhaps the Darden case would prove unusual, he said, adding that "I would prefer to wait and see what happens" in future cases.

The court did not change its rules, but the Darden case troubled Justice Blackmun. He became a regular dissenter as the court upheld death sentences and supported restrictions on access by state death-row inmates to federal court review.

Thanks From Death Row

In the summer of 1993, a law clerk suggested that the time had come to declare publicly an "abolitionist position." In a memo that traced Justice Blackmun's evolution on the issue, the clerk, Andrew Schapiro, wrote: "Efforts to fine-tune the machinery of death cannot succeed."

With Justice Blackmun's authorization, his clerks took on the project, not yet aware that it would be his last term. They were looking for a suitable case, a death-sentence appeal that a majority would predictably vote to deny. Justice Blackmun would file the statement as a dissenting opinion.

After a search of several months, the case the clerks selected was an appeal from a Texas inmate, Bruce E. Callins, sentenced to death for killing a man in a bar. Its very ordinariness commended it.

Adopting his law clerks' language, Justice Blackmun delivered his denunciation of the death penalty: Efforts to administer the death penalty fairly and consistently were "doomed to failure," as the court would realize some day, he said, adding: "I may not live to see that day, but I have faith that eventually it will arrive."

After the opinion was released on Feb. 21, 1994, a frail Justice Brennan, the passionate death penalty opponent who had retired four years earlier, called to thank Justice Blackmun for "the present."

A letter arrived several months later, painstakingly printed on lined yellow paper. "Dear Sir: I felt such a overpowering need to write you & thank you for reaching the decision you did on my case," Mr. Callins began. "I cannot imagine what you must have went through in reaching such a major decision." He said he hoped that Justice Blackmun was "at peace within yourself for doing as you did."

Mr. Callins was executed by lethal injection three years later. His sister, Nadeline Robinson, wrote to inform Justice Blackmun. "He had mentioned your name to me with great respect for you as an individual," she said.

Although abortion would prove to be a more troubling issue for the court as a whole, it posed considerably less of a personal challenge for Justice Blackmun. After 10 years as general counsel to the Mayo Clinic, he viewed the laws that criminalized abortion laws as many in the medical profession did: as a threat to good medical practice, a public health problem that drove desperate women into harm's way.

"Certainly a good faith medical judgment must be a defense to any charge" under the District of Columbia's criminal abortion statute, Justice Blackmun wrote in a memo to himself as an early challenge to that law was pending.

The records of Roe v. Wade itself, available in the papers of several other justices who were on the court in 1973, have been mined by scholars.

While the Blackmun papers illuminate his own role and offer some fascinating detail, they do not change the basic narrative.

However, his files on the District of Columbia case shed new light on Justice Blackmun's readiness, earlier than has been recognized, to embrace the right to privacy as the foundation for the right to abortion. That case, United States v. Vuitch, began as a challenge to the District of Columbia's criminal abortion statute. It was decided in 1971 without addressing the ultimate constitutional issue, and so has been largely forgotten in the long shadow that Roe v. Wade cast.

As was his habit, Justice Blackmun dictated a memo to himself while he was preparing to hear the argument in the case. "Here we go in the abortion field," he began, reflecting the justices' awareness that abortion cases were steadily making their way to the court's door.

In the memo, he reviewed the court's recent precedents establishing a right to privacy for the use of birth control and the private possession of pornography.

These cases "afford potent precedence in the privacy field," he wrote, adding: "I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented in the present case." In his final sentence, he said: "I think I could go along with any reasonable interpretation of the problem on principles of privacy."

An Unhappy Assignment

It is clear from the Roe v. Wade file that the justices hadn't anticipated the firestorm to come. After the retirements of Justices Black and John M. Harlan, the court was two members short in the fall of 1971 when it was time to schedule Roe v. Wade for argument. Chief Justice Burger appointed Justice Blackmun to a screening committee to decide which cases could be argued as scheduled, and which were so controversial that they should be held for a full court.

While Roe v. Wade was a candidate for deferral, "we didn't set it aside," Justice Blackmun recalled in the 1995 oral history that is part of his collected papers. "I don't know why we didn't set it aside. I think probably the implication, the obvious implication, is that we didn't think it was that important at that time."

Following the first argument, and after a vigorous internal debate, the court decided that Roe v. Wade should be heard by nine justices. Justices Rehnquist and Powell had joined the court by the time the case was reargued in October 1972.

Justice Blackmun made notes to himself in connection with the justices' post-argument conference. It is not clear whether they were his prepared talking points, or whether he made them after the discussion. (The abbreviations he used are rendered as complete words in this article.)

Clearly, the atmosphere surrounding abortion had darkened over the summer. "It is not a happy assignment — will be excoriated," he wrote.

He then sketched his thoughts for the eventual opinion, in a format strikingly like the final product. "The right to privacy as exemplified in the decided cases here. This is broad enough to encompass the decision whether to terminate a pregnancy. . . . But, despite the arguments, the right is not absolute. There is a point at which another interest is involved — life or the potential of life. . . . I avoid any determination as to when life begins. Therefore, a balancing of interests."

The notes end with these reflections on the likely impact of the decision:

"1. A majority of state statutes go down the drain.

2. It will be an unsettled period for a while.

3. But most state legislatures will be meeting in `73.

4. Any point in withholding the mandate? To 4/1."

This last point raised the prospect of delaying the ruling's effective date until the following April to give states time to adjust.

By late December, five justices — Powell, Brennan, Thurgood Marshall, Douglas, and Potter Stewart — had joined Justice Blackmun's proposed opinion. Chief Justice Burger had indicated he agreed but frustrated the others by delaying signing on for another month. In his oral history, Justice Blackmun speculated that the delay was designed to push the announcement of the decision past President Nixon's second inauguration on Jan. 20, 1973, so as not to upstage or embarrass the president. On Jan. 22, the ruling was issued, with only Justices Byron R. White and Rehnquist dissenting.

In the deadpan style he used in a running "chronology of significant events" he maintained throughout his years on the court, he recorded the ruling. "Abortion decision down — L.B.J. dies," he wrote for Jan. 22. The next day, reflecting official Catholic reaction, he wrote: "abortion flak — 3 Cardinals — Vatican — Rochester wires!" The last item referred to a telegram sent by the Mayo Clinic.

The ruling was to change his life and galvanize the country. He received thousands of angry letters, so many that the library kept only a small sample.

From 1973 on, Justice Blackmun dedicated himself to preserving Roe v. Wade as the comfortable 7-to-2 majority dwindled. He was wary when Justices Sandra Day O'Connor, Anthony Kennedy and David Souter arrived on the court, worried that they would ultimately overturn the right to abortion. When he lost cases, he wrote furious dissents in a deeply personal style, the evolution of which the papers document.

As it turned out in the Planned Parenthood v. Casey decision, it was that new generation of justices who made the right secure.

In his oral history, conducted by one of his former law clerks, Prof. Harold Hongju Koh of Yale Law School, Justice Blackmun pronounced himself content with his role in defending the right to abortion and satisfied that Casey had preserved it.

At the end of the interviews, Professor Koh asked whether writing Roe v. Wade "was a piece of good luck or bad luck."

He had wondered about that himself, Justice Blackmun replied. Then the 87-year-old retired justice said: "For me personally it probably was a matter of more good luck than bad. I think one grows in controversy."

 

Research assistance for this article was provided by Francis J. Lorson and Stephanie K. Wood.