March 4, 2004
Between Cases, Betting Pools, Kind Notes and Row vs. Wade
ustice Harry A. Blackmun's papers provide a glimpse of the personalities of the justices as they work. Some examples:
WILLIAM H. REHNQUIST Justice Blackmun's files validated the chief justice's reputation as a recreational gambler and lover of games. He set up an elaborate betting pool for the 1992 presidential election, inviting his colleagues to forecast the state-by-state results and awarding extra points for those who made unpopular but successful choices.
"Sandra proved to be positively prescient," Chief Justice Rehnquist announced the day after the election, reporting that Justice Sandra Day O'Connor had won $18.30 and that Justice Blackmun, the only other winner, was ahead by $1.70. "John and I have lost $6.30," he said, referring to Justice Stevens.
On the bench one day, the chief justice also divulged a long-kept secret. During an oral argument, a question arose about someone's middle name. Chief Justice Rehnquist scribbled a note to his colleagues and passed it along. He was not born William Hubbs Rehnquist, the name the world knows him by.
"I was once William D. (Donald) until I changed my middle name in high school to H (Hubbs — my grandmother's maiden name," he wrote.
DAVID H. SOUTER Of the justices on the current court, the one who forged the closest bond with Justice Blackmun was Justice David H. Souter. From their affectionate correspondence, the two Harvard College and Harvard Law School graduates appear to have been kindred souls. Not only were both meticulous, they also shared a love of the northern landscape.
In early 1994, they shared a lunch-hour expedition to the Freer Gallery of Art. Their frequent lunch dates usually meant that Justice Souter would bring a container of yogurt to Justice Blackmun's chambers. Over the summers, he sent Justice Blackmun postcards from the New Hampshire mountains. One year he sent something else: a commercial photograph of two fishermen, one in an inflatable rowboat and the other in hip boots, casting a line. "Row vs. Wade: The Great Western Fishing Controversy," the caption read. "For your collection," Justice Souter wrote.
Before Justice Souter took his seat in 1990, he received a letter of welcome from Justice Blackmun, who wrote: "The years ahead will be happy, rewarding, and exhilarating ones for you, I am sure. Please know that you will be among friends as we struggle together in trying to solve the intractable problems that confront the court."
The following summer, halfway through the court's recess, Justice Souter wrote: "After a month, I'm finally beginning to wind down, and it has taken far longer to relax than I'd expected. In part, I suppose, that is because I've been doing some work, but I think it is also partly due to the necessity of facing yet another unexpected fact, that being home is different from what it used to be. Life has changed, and it does not just switch itself back onto the old track for three summer months."
RUTH BADER GINSBURG Justices Blackmun and Ginsburg overlapped on the Supreme Court for just about a year, when they voted similarly on a number of opinions. But Justice Blackmun knew her even before she became a justice in 1993 because, as a lawyer, she had argued a half-dozen sex discrimination cases before the court.
Later, as an appeals court judge, she gave a law school lecture criticizing the legal basis, though not the outcome, of the Roe v. Wade abortion case. When she was nominated, The Washington Post printed an excerpt from the 1993 lecture. In his files, Justice Blackmun annotated it: "She picks at Roe," adding, "a professor's appraisal 20 years after. One has to be in the heat of the battle to appreciate this. She will be in for it now.
Can she stand up to A.S.?" (A.S. was Justice Antonin Scalia.)
Justice Blackmun had not always been impressed with Justice Ginsburg, his papers show. He regularly recorded brief descriptions of the lawyers who argued before the court, and often graded their performance. In Professor Ginsburg's first argument, he gave her a C-plus and commented, "very precise." In another case, her grade improved to a B, with the comment, "too smart." He often made notes on the attire of both male and female lawyers and described her once as dressed in "in red & red ribbon today." He criticized her brief in one case as "a very lengthy brief filled with emotion." But as she kept winning cases, his tone became less grumpy.
ANTHONY M. KENNEDY Although Justices Kennedy and Blackmun eventually became good friends, their relationship began inauspiciously. The problem was abortion. A year after he joined the court in 1988, Justice Kennedy voted with the majority in Webster v. Reproductive Health Services, a decision that upheld Missouri's restrictive abortion law and provoked Justice Blackmun's strong dissent.
Justice Blackmun's notes from the justices' post-argument conference in the Webster case depict Justice Kennedy as a critic of Roe v. Wade itself.
The decision "continues to do damage to the court" and to the "conception of judges' proper position and role," Justice Blackmun recorded Justice Kennedy as saying.
A year later, they had a prickly exchange over another abortion case. The court upheld an Ohio law requiring parental notice before a teenager could have an abortion. Justice Kennedy wrote the opinion, adding some concluding sentiments of his own. "A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion," he wrote.
The tone, Justice Blackmun felt, was "paternalistic." He circulated a draft of a dissent that accused Justice Kennedy of using "hyperbole that can have but one purpose: to further incite an American press, public and pulpit" on the abortion debate.
Justice Kennedy then sent Justice Blackmun a handwritten letter. "After much hesitation, I decided it would be best for our collegial relation and, I hope, mutual respect to tell you that I harbor deep resentment at your paragraph in the dissenting opinion," he said. "You say my hyperbole is to incite an inflamed public. To write with that purpose would be a violation of my judicial duty. I am still struggling with the whole abortion issue and thought it proper to convey this in what I wrote."
Justice Blackmun replied the next day. "In the thought that it will help to assuage your feelings," he said, he would limit himself to calling the opinion inflammatory in "result" rather than in its purpose "This should help, but, of course, I do not know whether it will," he concluded.
An exchange in Justice Blackmun's files from 1993 shows that by then, any tension between the two had dissipated. A contributing factor was no doubt Justice Kennedy's role in Planned Parenthood v. Casey, which had reaffirmed the right to abortion the previous year. In March 1993, Justice Byron R. White announced his retirement. Justice Kennedy, concerned that Justice Blackmun, then 84, might retire as well, sent this letter:
"My own devotion to the court and its constitutional place have been shaped in most profound ways by your splendid juristic dedication, and you still inspire me to try to do better in my own work.
"It would be a great loss to this institution if Byron's successor were to be deprived of that same instruction. You and Dottie have much to weigh, and I must not intrude, but I considered that the warm relation between us might justify this brief letter. If you were to stay here a while longer, it would influence the court for years to come."
"With admiration and respect, I remain,
Justice Blackmun replied: `Your note was a comfort and affords me much strength," adding, "thanks from my heart." He remained on the court for another year.
ANTONIN SCALIA The two justices, ideological opposites, shared a passion for policing abuses of the language. They kept an Enemies List: the words "parameter" and "viable" were on it. In 1991, Justice Scalia invited Justice Blackmun to join the Chancellor's English Society.
"The mission of the Society is to identify and stamp out illiteracies and barbaric neologism in legal writing — or at least commiserate about them. I am the only other member," he wrote.
They had a more heartfelt exchange some years later. Justice Blackmun reached out, even in retirement, to other justices if he concluded they needed a bit of calming down or cheering up. One such note went to Justice Scalia in July 1996, prompted by some particularly anguished dissenting opinions the justice had issued in the term just concluded.
"I know that this has not been an easy year for you. But it is over with, and next October one will be rejuvenated and a new chapter will unfold. As a group or individually, we cannot get discouraged. May the summer be a good one for you.
Replied Justice Scalia: "You are right that I am more discouraged this year than I have been at the end of any of my previous nine terms up here," Justice Scalia replied. "I am beginning to repeat myself and don't see much use in it any more. I hope I will feel better in the fall. A cheering note from an old colleague — one whom, God knows, I was not always on the same side with — sure does help."
JOHN PAUL STEVENS Now the senior associate justice, he has been viewed throughout his career as a loner on the court, forming his opinions with little concern about whether others come along. But it appears that in some important cases, Justice Stevens, one of the court's most liberal members, has been a much more strategic behind-the-scenes player than commonly assumed.
In 1992, for example, he broke a logjam in a case called United States v. Fordice, on whether Mississippi had done enough to integrate its public university system. Justice White, who had the opinion assignment, and Justice O'Connor, who objected to aspects of his draft, were at an impasse. Justice Stevens intervened, suggesting revisions that the two justices accepted.
At times, he counseled caution. In 1991, during Justice Souter's first term, the court voted to uphold a Reagan administration rule that barred doctors from offering abortion counseling or referral in clinics that received federal money. Justice Blackmun's angry dissent implied that the majority, which included the new justice and Justice O'Connor, had as its ultimate goal the overruling of Roe v. Wade.
Justice Stevens urged restraint. "I think it may be poor strategy to assume that either Sandra and David — and certainly not both — are prepared to overrule Roe v. Wade," he wrote Justice Blackmun.
Justice Blackmun's law clerk recommended deleting the paragraph, but the justice kept it in, accusing the majority of acting in "haste further to restrict the right of every woman to control her reproductive freedom and bodily integrity."
But barely a year later, Justices O'Connor and Souter, along with Justice Kennedy, provided the crucial votes in Planned Parenthood v. Casey to reaffirm Roe v. Wade. Justice Stevens played an important role in the evolution of that 1992 decision. Once the trio had disclosed to Justices Blackmun and Stevens their previously secret plan to preserve Roe, albeit with some new qualifications, Justice Stevens negotiated changes in their proposed opinion to enable himself and Justice Blackmun to join crucial parts, thus providing a five-person opinion for the court instead of a three-justice plurality. Two weeks of intense and ultimately successful negotiations followed.