Blackmun's Papers and the Supreme Court

The late Supreme Court Justice Harry Blackmun left all of his papers to the Library of Congress, as is customary, and asked that they be relased on the 5th anniversary of his death on March 4, 1999. That release was made this week. For avid court watchers like me, this is an opportunity to get a glimpse behind the scenes on the internal working of the court, especially on the interplay of the personalities of the justices. Blackmun was apparently quite the packrat, keeping virtually every scrap of paper that ever crossed his desk and taking voluminous notes on every meeting and conference in his 24 years on the court. I have yet to see any of the original material, but the news reports have some very interesting insights.

Some snippets from the Washington Post article on his papers:

On his infamous decision in Roe v Wade:

Blackmun 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 H. 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.

The files provide a striking self-portrait of Blackmun, the author of the 1973 Roe decision, who was at first oblivious to its potential controversy ("I didn't appreciate it," he said) and then watched as "the roof fell in." The justice was hounded by it for years, buried in mail pro and con, picketed at a speech, wishing it would recede but simultaneously defending the decision from successive challenges. In the end, Blackmun remained defiantly proud of his achievement but aware, as he said, that "I'll carry it to my grave."

On the tendency of judges to become very independent after being appointed to the highest court:

The behind-the-scenes 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.

When he was named to the court in 1970, Blackmun himself was perceived as a cautious appointee; he ended as an unabashed crusader, a frequent ally of liberals William J. Brennan Jr. and 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.

On the sometimes back and forth decision making process on the court:

Kennedy's vote-switching was not unusual for a justice. The Blackmun materials underscore the fluidity of the court's decision-making process. In 1992, for example, Kennedy wrote a draft opinion for a majority in Lee v. Weisman upholding clergy-led graduation prayers in public schools. Then he circulated a note saying his draft looked wrong and joined the other side with Blackmun, who, as the senior justice, then assigned Kennedy to write the decision declaring the practice unconstitutional.

On Chief Justice Warren Burger:

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.

Linda Greenhouse, one of two reporters given advanced access to the Blackmun papers, has a fascinating article on the relationship of Blackmun and Burger, who grew up together in Minnesota.

And this rather amusing note:

Blackmun recounted how, when the justices watched films to determine if they were pornographic, Justice John M. Harlan, who was nearly blind, kept asking his clerk, "What are they doing now?" Upon being told, Harlan would exclaim, "You don't say."

The New York Times had an article up on the papers yesterday, which contains a few interesting tidbits as well. On betting pools:

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 his close friendship with Justice David Souter:

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.

On Scalia and their shared hatred for the abuse of the English language:

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.

I think this illustrates perfectly why I find Scalia to be such a fascinating person despite our obvious ideological differences. Just a delightful phrase and accompanying sense of humor.

I can't wait for more of this sort of thing to be reported on. The interaction of these brilliant men and women in what is, in my opinion, really the last place in government where true intellectuals get to participate, is very fascinating to me.