The Brains Behind Blackmun
Harry Blackmun's papers reveal that, more than any justice in memory,
he gave his law clerks control over his thinking and writing when he was
on the Supreme Court.
I
HARRY A. BLACKMUN SERVED ON THE UNITED STATES SUPREME COURT for almost
a quarter of a century, beginning in 1970 after his selection by President
Richard Nixon and ending in 1994 with his retirement at age 85. When
Blackmun's papers were opened to public inspection in March 2004, five
years after his death, laudatory news stories highlighted his evolution
toward a more compassionate jurisprudence. Those accounts contrasted
sharply with coverage at the outset of Blackmun's Supreme Court career,
when critics dismissed him as Chief Justice Warren Burger's "Minnesota
Twin," made fun of his excessive interest in trivia, and viewed his early
record on the court as anything but sensitive to society's least
fortunate. Yet a far more troubling story emerges from the pages of
Blackmun's papers, one that remains almost wholly unreported.
It is the story of a justice who ceded to his law clerks much greater
control over his official work than did any of the other 15 justices from
the last half-century whose papers are publicly available. Whether any
current justices are similarly abdicating their responsibilities will not
be known until their case files are opened in the future.
Blackmun's clerks played substantial roles in producing his opinions as
early as 1971, when the landmark abortion cases Roe v. Wade and
Doe v. Bolton first came before the court. But Blackmun's comments and
case files show his clerks' involvement in his work increasing
substantially during the 1980s and early 1990s. In Blackmun's final term
of 1993-94, his clerks were almost wholly responsible for his famous
denunciation of capital punishment in his dissent in Callins v. Collins.
This degree of clerk involvement is indefensible. Decades ago, Justice
Louis D. Brandeis declared that "the reason the public thinks so much of
the Justices of the Supreme Court is that they are almost the only people
in Washington who do their own work." Today, no knowledgeable observer of
the court would make a similar claim. As late as 1940, most clerks acted
primarily as secretaries. In some cases a clerk might contribute an
important footnote to an opinion, but not until Justice Frank Murphy and
Chief Justice Fred Vinson joined the court in the 1940s did clerks take
the lead in writing opinions and sometimes determine a justice's vote. As
the number of clerks increased from two to three and, finally, to four, so
did their involvement in their justice's work. Some of the best-known
opinions of such renowned former justices as Felix Frankfurter and John M.
Harlan II were written almost entirely by their clerks. Judge Alex
Kozinski of the U.S. Court of Appeals, Ninth Circuit, who clerked for
then-Judge Anthony Kennedy and for Chief Justice Burger, admits that "few
judges draft their own opinions from scratch." More significantly,
Kozinski also acknowledges "the pressure to give away essential pieces of
your job." Unfortunately, as Kozinski notes, "the only guarantee one can
have that judges are not rubber-stamping their law clerks' work product is
each judge's sense of personal responsibility."
In the case of Harry Blackmun, that sense of personal responsibility
appears to have been sadly lacking. Blackmun's case files, including those
for many of his best-known opinions, are replete with examples of law
clerks doing far more than drafting the justice's opinions. In several of
Blackmun's most notable cases, the records indicate that the justice was
less familiar with the substance of his opinions than he should have been.
In addition, many memos to Blackmun from his clerks reflect a lack of
deference that contrasts sharply with the respectful tone of clerks' memos
to contemporary justices, including the late Thurgood Marshall, whose case
files became publicly available upon his death in 1993. Some memos to
Blackmun explicitly demean and insult other justices and suggest that
Blackmun, unlike Marshall and Justices William J. Brennan and Lewis F.
Powell, condoned such comments. Perhaps the picture the Blackmun Papers
paint does not reflect practices in any current justice's chambers. Yet
Blackmun's case files offer a powerful and poignant warning to present and
future justices that the failure to closely supervise young clerks can
damage the court's reputation and undermine its authority.
II
BLACKMUN'S AUTHORSHIP OF ROE V. WADE and Doe v. Bolton
became the signature event of his 24 years on the court. The pair of cases
challenging anti-abortion statutes in Texas and Georgia was decided during
Blackmun's third term as a justice. Yet even then, Blackmun allowed his
clerks to play influential roles not only in drafting the two opinions but
also in honing the constitutional standards that made the two cases
famous.
Even before Roe and Doe arrived at the court, Blackmun was
clearly comfortable with interpreting the Constitution to protect women's
access to abortion. Writing to himself just prior to the oral argument in
United States v. Vuitch, the court's first abortion case, in
January 1971, Blackmun noted that the 1965 case Griswold v. Connecticut,
which upheld the right of married couples to use contraceptives, and the
1969 case Stanley v. Georgia, which protected the possession of
pornography in the home, "afford potent precedence in the privacy field. I
may have to push myself a bit, but I would not be offended by the
extension of privacy concepts to the point presented by the present case."
At conference, however, the justices decided Vuitch on grounds that
allowed them to avoid the constitutional privacy issue.
When Blackmun began preparing for Roe's initial oral argument in
December 1971, his notes about the case reiterated his comments about
Vuitch. "A fundamental personal liberty is involved here—right to
receive medical care," he wrote. "Much precedent for this sort of
thing—Griswold et al." After argument and the justices' private
conference, Burger assigned Blackmun to write the opinions in Roe
and Doe.
Law clerk John T. Rich, who now practices law in Washington, D.C.,
prepared a long memo for Blackmun summarizing the issues in Roe.
After a first draft of the Roe opinion was completed in mid-May
1972, Rich gave Blackmun a forceful, 13-page list of recommended changes.
Doe was the responsibility of Rich's co-clerk, George Frampton, who
is now a New York lawyer. By mid-May, Frampton had a draft opinion ready
for distribution. While not as assertive as Rich, Frampton nonetheless
told Blackmun that the opinion should more clearly state that it was
affirming the lower court's decision to void several restrictions on
abortion in the Georgia statute. "I feel even more strongly now that you
should make explicit what the opinion presupposes by approving the
decision of the court below as far as it went." But both drafts were held
in abeyance after a majority of the court, at Blackmun's urging, scheduled
Roe and Doe for reargument during the following term, when a
full bench that included Powell and William Rehnquist—who had joined the
court after the initial arguments—could decide the two cases.
Over the summer, while Blackmun visited the Mayo Clinic's library in
Rochester, Minn., to research the medical aspects of abortion, Rich and
Frampton did substantial work on the draft opinions before their
clerkships ended in early August. In mid-July, Frampton informed Blackmun
that "after thinking about the overall structure of the opinions, John and
I have concluded that there is a strong argument for leaving the Texas
case to go off on vagueness," meaning that in Roe the court would
void the Texas statute as too vague, and Doe would become the more
constitutionally significant opinion. Frampton wanted the opinions to
provide "a comprehensive prescription" for how states should revise their
abortion laws, and on August 11, 1972, he sent Blackmun revised drafts of
both Doe and Roe, as well as advice on strategy.
I want to urge you again to circulate your revised draft before oral
argument," Frampton wrote to Blackmun. "[I]t will nail down your keeping
the assignment, it should influence questions and thinking at oral
argument, and it might well influence voting. It will also put a premium
on getting the cases handed down quickly. . . .
Frampton also told Blackmun about an analytical distinction that would
prove crucial in the final Roe and Doe opinions. "I have
written in, essentially, a limitation of the [abortion] right depending on
the time during pregnancy when the abortion is proposed to be performed,"
Frampton explained. "I have chosen the point of [fetal] viability for this
'turning point' (when state interests become compelling) for several
reasons: a) it seems to be the line of most significance to the medical
profession, for various purposes; b) it has considerable analytic basis in
terms of the state interest as I have articulated it. . . ."
He also highlighted another addition. "I have included a section designed
to show in greater detail that neither the law nor any other discipline
has really arrived at a consensus about the beginning of life." But
Frampton confessed that, as to constitutional privacy analysis, "I would
have liked to do more here, but I really didn't have time at the end," and
he regretted the deficiency. "Since the opinion does use this right
throughout, and since it is a new application of it, I think considerable
explanation is required in addition to what the circulated draft
contained—which was little more than one sentence plus a string cite in
[the] text."
After the two cases were argued again in October 1972, Blackmun prepared
for the conference, assuming that they would remain his responsibility. "I
am revising and expanding the proposed opinions that commanded a
majority," he jotted to himself. "I have a lot of personal investment," he
added, and "It is not a happy assignment—[I] will be excoriated." The task
of handling both Roe and Doe had passed to new law clerk
Randall Bezanson, who now teaches law at the University of Iowa. In a
November 29 memo to Blackmun, Bezanson questioned Frampton's selection of
viability as the point at which the right to an abortion should be
limited, a choice that Powell had also recommended.
"By selecting viability," Bezanson asked Blackmun, "would you not be
suggesting that prior to that point no limitations could be placed on
abortions (except those permitted in your opinions as they now stand)."
Bezanson then offered an analysis that decisively shaped how Roe
would balance the woman's right and the state's interests throughout
pregnancy:
Let's assume that prior to the end of the first trimester no
limitations could be placed on abortion, as your opinion now provides.
And assume that after viability the state's interest becomes
sufficiently compelling to prevent abortions except in limited
circumstances—preserving the life of the mother, or her health as
narrowly defined in a statute. I am still of the opinion that during the
'interim' period between the end of the first trimester and viability
(about 6 months), the state might impose some greater restrictions
relating to medical dangers posed by the operation, e.g., the operation
would have to be performed in a hospital, as opposed to a clinic close
to a hospital, and the like. One of the positive attributes of your
approach, as I see it, is that it leaves the state free to place
increasing restrictions on abortions over the period of gestation if
those restrictions are narrowly tailored to state interests. Justice
Powell's suggestion seems to view the relevant state interests too
narrowly, and disregards the state's interest in assuring that the
medical procedures employed will be safe. Your opinion, as I view it,
rests on two state interest[s], which become compelling in varying
degrees over time, and not simultaneously: the state's interest in
preserving the life of the fetus (here the most logical cutoff, as
Justice Powell suggests, is viability), and the state's interests in
assuring that the abortion procedure is safe and adequately protects the
health of the patient (it is this interest to which I think Justice
Powell gives too little weight). The fetus is pretty large at 4 or 5 or
6 months, although it may not be 'viable.' I would imagine, and your
opinion suggests to me, that the medical risks which attend abortion of
a fetus increase as the size of the fetus increases. Thus the state's
interests may increase vis-á-vis this factor before 'viability.'
While the first trimester is, as you admit, an arbitrary cutoff, I
don't think that it is all that arbitrary, and I would not want to
prejudge a state's interests during the 'interim' period between the end
of the first trimester and viability at this time. I would stand by your
original position, subject to minor change, and leave the question of what
legitimate interests a state might have of requiring greater protection
through higher medical standards to another case.
Blackmun adopted all of Bezanson's recommendations in a December 4, 1972
letter to Powell. One week later, while on the bench during oral argument,
Powell passed Blackmun a note that read, "I will join your present opinion
and so I leave entirely to you whether to address the 'viability' issue."
Marshall and Brennan concurred, prompting Bezanson to advise that the
opinion should go ahead and "articulate the two state interests, and the
point at which they assume increasing significance. With respect to the
state's interest in preserving the safety of the operation and the
conditions surrounding it, regulation might be permissible somewhere
between the end of the 1st trimester (if that is the cut-off selected) and
'viability' or beyond. But with respect to the state's interest in
preserving fetal life, the opinion might, for example, indicate that only
after 'viability' does this interest become sufficiently compelling to
support regulation in furtherance of this interest."
The majority opinions in Roe v. Wade and Doe v. Bolton came
down on January 22, 1973, and owed a great amount of their substance and
language to Frampton and Bezanson. The Roe opinion declared that,
"[w]ith respect to the State's important and legitimate interest in
potential life, the 'compelling' point is at viability," a statement that
clearly echoed Frampton's August memo. As Blackmun acknowledged in a 1995
oral history interview with former clerk Harold H. Koh, who is now dean of
Yale Law School, Frampton was the clerk who "did the major work on Roe
. . . a lot of good, solid work on the opinion."
Yet what stands out most in the work of Blackmun's clerks on Roe
and Doe is not the remarkable extent of their contributions, but
the unusually assertive and forceful manner in which the clerks voiced
their views to Blackmun. Although no one has reviewed every one of
Blackmun's case file folders, the behavior of Blackmun's clerks in
preparing the Roe and Doe decisions was the first
significant example of conduct that formed a clear pattern after the
mid-1980s. While Blackmun's clerks made historically significant and
perhaps decisive contributions to Roe and Doe, in later
years they exerted even greater influence on opinions in landmark cases.
III
WRITING ROE V. WADE SIGNIFICANTLY AFFECTED BLACKMUN'S
SELF-PERCEPTION. As public criticism of the decision continued after 1973,
Blackmun became so preoccupied with Roe that a tone of self-pity
crept into his personal notes whenever a new abortion case came before the
court. In 1976, while Blackmun was contemplating a statute that authorized
abortions only when a woman's life was in danger, he jotted, "It seems to
me that this is 'playing God' just as much as my detractors accuse me of
doing in the critical letters that have come in." He anticipated being
"chewed upon at length during these abortion arguments" when the case was
heard, and he later expressed dread about a case involving the right to
use contraceptives. "Here we are again in a general area in which I have
already had too much to say by way of opinions of the Court." Late in 1978
Blackmun again made the same point. "More A[bortion]," he noted. "I grow
weary of these. . . . Wish we had not taken the case."
Yet Blackmun also seemed oddly detached from the doctrinal issues
underlying Roe. In the 1980s, when Roe's privacy analysis
became central to constitutional arguments for gay rights, Blackmun's
reactions were puzzling. In a New York case, he initially voted with the
four most conservative justices to hear arguments, but shifted sides and
helped dismiss the case because he wanted to wait for one that directly
addressed the "deviant sex issue." In 1986, Bowers v. Hardwick did
just that. Michael Hardwick had been arrested under Georgia's antisodomy
law for having oral sex in his bedroom with another man. At first the
justices seemed ready to strike down the statute by a vote of 5 to 4, with
Powell among the majority. But Powell, a consistent supporter of Roe,
changed his vote after deciding that the constitutional right to privacy
should not cover gay sex. Powell's switch meant that the court would
uphold the statute, turning what would have been a majority opinion by
Blackmun into a dissent. Clerk Pamela Karlan, now a professor at Stanford
Law School, took the lead in preparing the dissent, which argued that "the
right of an individual to conduct intimate relationships in the intimacy
of his or her own home seems to me to be the heart of the Constitution's
protection of privacy."
When the court was ready to announce the Bowers ruling, Karlan
played a decisive role in determining the timing. "I've thought a bit
about your announcing the dissent from the bench," she wrote to Blackmun,
"and I think you should do it. The majority's treatment is a disgrace and
it's well worth making clear to everyone what the case is really about."
She added: "As for timing, whether you want to announce the dissent or
not, I think Friday [June 27, 1986] is a bad day to have the case brought
down. A summer Friday and Saturday are probably the least likely time for
people to take notice of what the Court has done. I would press, if I were
you, for Monday instead." Just as Karlan recommended, the announcement of
Bowers v. Hardwick was held over until Monday, June 30, 1986.
In his 1995 oral history, Blackmun recalled that, in Bowers, Karlan
"did a lot of very effective writing, and I owe a lot to her and her
ability in getting that dissent out. She felt very strongly about it, and
I think is correct in her approach to it. I think the dissent is correct."
Even nine years after the case, Blackmun's phrasing seems strange,
particularly his statement that Karlan was "correct in her approach." The
words imply that Karlan not only wrote the opinion, but also conceived the
substance and structure of its argument. Even odder was Blackmun's answer
to a question about the relationship between Roe and Bowers.
Did Blackmun's position in Roe, Koh asked, lead him to the
Bowers dissent? "Never thought about that one, but maybe they go
together," Blackmun responded. That was an astounding answer for someone
who had ostensibly written a landmark dissent that explicitly relied on
Roe's constitutional privacy analysis. Blackmun's own statements
reflect a remarkable lack of personal involvement in one of the most
notable opinions of his career.
Perhaps Blackmun was tired on the day of that conversation. Maybe he was
losing his memory or mental acuity, although no such deterioration is
apparent from the video recordings or transcripts of his lengthy
interviews with Koh. Alternatively, perhaps Blackmun, particularly in
light of his apparent characterization of the Bowers dissent as
Karlan's, never had thought much about the connection between Bowers
and Roe. In another interview five months later, Koh again asked
about Bowers: "Did you see it as an explicit link to Roe v. Wade
and the right-to-privacy arguments in Roe v. Wade?" Blackmun
answered, "No, I would hesitate to say that I did."
But when Koh subsequently asked Blackmun to identify his "best opinion,"
the retired justice replied, "the dissent in Bowers." Blackmun's
readiness to anoint Bowers as his most significant work is not
necessarily surprising, but it again underscores the oddity of his
responses to Koh's questions about the dissent. Any justice who could
readily identify his foremost piece of work presumably would have
reflected long and hard on its legal bases and precedents.
In another of his 1995 oral history interviews with Blackmun, Koh asked
the former justice whether there was "a different style of operating with
your law clerks on the Supreme Court than on the Court of Appeals [for the
Eighth Circuit]," where Blackmun served as a judge from 1959 until 1970.
"Well, it certainly was true in my case," Blackmun answered, "but that
again was a matter of evolution. It wasn't a sudden different operation.
As we went along and I felt more comfortable, particularly more
comfortable with the new sets of clerks [each term], I think their
assignments and their production came along in different ways and always
became more helpful to me as the years went by." "More helpful to me as
the years went by" is a phrase crucial to understanding what happened
during Blackmun's 24 years on the Supreme Court. Although Karlan's role in
Bowers, like Frampton's and Bezanson's contributions to Roe,
was remarkably substantive, the Blackmun Papers suggest that, from the
late 1980s until Blackmun's retirement in 1994, the extent of his clerks'
influence on his most notable opinions increased even further.
IV
IN THE SPRING OF 1989, LAW CLERK EDWARD LAZARUS, now a lawyer and legal
columnist based in Los Angeles, wrote most of Blackmun's outspoken dissent
in the abortion case of Webster v. Reproductive Health Services,
although Blackmun himself drafted two paragraphs. Lazarus kept Blackmun
apprised of his writing, and when it was almost complete, he told
Blackmun, "I hope you like what I have drafted. . . ." Lazarus also
provided Blackmun with archly sardonic comments about other justices, like
one note reporting that "The expected circulation from SOC [Sandra
O'Connor] has been delayed until sometime later this afternoon.
Apparently, her tennis game with [First Lady] Barbara Bush this morning,
and her luncheon appointment, have precluded her final pre-circulation
review."
The following year, clerk Anne Dupre, who now teaches at the University of
Georgia Law School, performed yeoman service in the 1989 term's two
notable abortion cases, Hodgson v. Minnesota and Ohio v. Akron
Center for Reproductive Health. Dupre closely monitored developments
in other chambers and advised Blackmun on how to deal with other justices.
In one memo to Blackmun, she wrote:
WJB's [William J. Brennan's] clerk has informed me that WJB is
considering sending the attached memo to JPS [John Paul Stevens]. He
wanted to check with you to see what you thought, but did not feel up to
a telephone call. (His clerk says WJB is feeling somewhat better, but is
still weak). I have been talking a great deal to WJB's clerk since TM's
[Thurgood Marshall's] concurrence and dissent was circulated. I think it
is a good idea to ask for these changes so that JPS can get as many
votes as possible for his opinion. As I stated in a previous memo, I do
not think it is good strategy to be too combative with JPS in this case.
SOC's [Sandra O'Connor's] clerk does not think that these changes will
scare off SOC who, from what I hear, is still on board, but will write
separately.
Also in the 1989 term, clerk Martha Matthews, who now directs the
domestic violence clinic at the University of Southern California Law
School, had extensive conversations with clerks in other chambers while
opinions were being drafted in Cruzan v. Director, Missouri Department
of Health, a landmark "right to die" case to which she was assigned.
When Brennan's dissent in the case was first circulated in late May 1990,
almost six months after Cruzan was argued, Matthews informed
Blackmun that "It covers all the points I think are important (I worked
fairly closely with J. Brennan's clerk in drafting this). I do not really
know what your views are on this case, but I can see no reason not to join
this—with one exception." She added, "I do not know whether you have
special concerns or thoughts about the case that might prompt you to write
a separate dissent as well. If so, perhaps I could help draft something?"
It is extraordinary for a clerk to acknowledge that she did "not really
know" her justice's views on one of the term's most significant cases long
after it was argued. It indicates that Blackmun had offered Matthews no
substantive guidance on Cruzan and it suggests that, by the spring
of 1990, he was giving his clerks little explicit direction in the court's
most notable cases.
V
DURING THE 1991 TERM, TWO OF THE DECADE'S PREMIER CASES, Lee v. Weisman
and Planned Parenthood of Southeastern Pennsylvania v. Casey,
came before the court. Clerks Molly McUsic (who is now a senior fellow at
a Maryland-based conservation foundation) and Stephanie Dangel (who is now
a lawyer in Pennsylvania) played notable roles in both cases. In Lee,
which involved a challenge to a prayer at a public school graduation
ceremony, McUsic recommended with great reluctance that Blackmun join
Justice Kennedy's draft of a majority opinion. It contained some "very
troubling" sentences, McUsic told Blackmun, but it was probably "the only
version that could capture a majority. I do not think I could draft
anything that would please Justice Kennedy, unless it was as narrow as
this. Justice Souter might be able to, but there is no way to know."
McUsic's choice of words suggested that in Souter's chambers, unlike in
Blackmun's, the justice did at least some of the drafting.
McUsic also took the lead in handling Planned Parenthood v. Casey,
an abortion case that most observers believed could lead to Roe's
demise because the recent replacement of Marshall with conservative
Justice Clarence Thomas would create an anti-abortion majority. "The
prospect of this case being heard has gripped the attention of the outside
world," McUsic told Blackmun. "If you believe there are enough votes on
the Court now to overturn Roe, it would be better to do it this
year before the election and give women the opportunity to vote their
outrage. The only harm would be that Roe would be overturned sooner
rather than later. While under usual circumstances that harm would be
enough to avoid hearing the case for as long as possible, the November
Presidential elections may tip the scale in favor of hearing this case."
McUsic explained her thinking. "Assuming DHS [David H. Souter] sits on the
fence and declines to vote to overrule, there are now just 5 votes to do
so. But CJ [Rehnquist] and/or BRW [Byron R. White] could decide to step
down. (BRW has yet to select clerks for next year). With the worsening
economy, a new President could also be elected" and replace Rehnquist or
White with a pro-choice nominee.
Stephanie Dangel, who would take over from McUsic on Casey, soon
chimed in. "Peter Rubin, DHS' [David H. Souter's] clerk, claims that DHS
is trying to write the question" on which the court would grant certiorari
"in such [a] way as to avoid overruling Roe. . . . Peter says he
has confirmed this with his boss . . . [and] says that DHS' desire for
more time is due to his hope that he would have the summer to think about
this question. Unlike the Chief and SOC [Sandra O'Connor], DHS is not
concerned about the election."
One week later, Blackmun's clerks gave him a joint memo recommending that
he vote to hear Casey. "Moreover, we feel strongly that the case
should be heard this spring," they wrote, "and that you should oppose
efforts to relist the case any further," because such efforts would delay
it until the fall. The clerks also drafted a dissent to relisting, writing
that "We should conduct our business above the fray of politics," but the
draft was put aside when the court granted certiorari on January 21.
Casey was argued on April 22, 1992, and at the justices' private
conference there appeared to be five votes for upholding Pennsylvania's
anti-abortion law. Chief Justice Rehnquist assigned himself the majority
opinion and circulated an initial draft on May 27. Not until May 30 did
Kennedy, ostensibly a member of Rehnquist's narrow majority, inform
Blackmun that he and Justices O'Connor and Souter had secretly been
preparing an opinion that would reaffirm Roe's core. Four days
later, the three justices circulated their draft.
Dangel recommended that a separate opinion from Blackmun put "the best
possible spin" on the three justices' joint draft. Explaining that there
was "a real need for something short and snappy that summarizes just what
has happened in this case," Dangel told Blackmun, "I wanted to give you a
brief summary of the approach I am taking in my draft. (I have cleared the
approach with your other clerks, together with JPS's [John Paul Stevens's]
clerk.) Pl[ea]se let me know if you think I'm headed down the wrong
track."
Dangel confessed that she was "somewhat ambivalent about what has happened
in this case," for while "there is much to be admired in the formation of
the troika and the substance of their opinion, . . . given the middle
ground that they have taken, I fear the decision may have the effect of
removing abortion from the political agenda just long enough to ensure the
re-election of Pres. Bush and the appointment of another nominee from whom
the Far Right will be sure to exact a promise to overrule Roe."
Sketching a three-part outline, Dangel explained that the specifics of the
third section "cannot be worked out until AS [Antonin Scalia] has
circulated his monstrosity" of a dissent. She explained that "while there
may be something to cheer in the troika's opinion, there is much more to
fear from the right. And the difference between the two positions is a
single vote—a single vote that is up for grabs in the coming election. As
you have no doubt gathered, this opinion is more rhetoric than research."
Dangel concluded by telling Blackmun, "I plan to give you a draft of this
opinion late Thursday or early Friday," but she added, "I think it is
preferable to circulate after the conference on Friday," since the
opinion "should ruffle some feathers on the right" and it would be "better
to give them a few days to cool off before you have to meet with them
again." She gave Blackmun a partial draft on Sunday, explaining that it
was incomplete in part because "the evil nino [Scalia] has yet to
circulate."
Revisions continued during the ensuing week, with Dangel telling Blackmun
that "[t]he one 'substantive' decision you will have to make is whether
you want to go with an ending that links the future of reproductive rights
to the upcoming election (or confirmation process) in the manner that my
earlier draft did. It's pretty radical. . . ." A day later, Dangel
notified Blackmun that she had changed the ending so that "it now reads
less as a battle cry, and more as a lament," and she followed up with
another memo reporting that a Stevens clerk had said the Blackmun opinion
would further politicize the decision. "I hope you don't feel that we were
pressuring you too much on the final section of this opinion. You
certainly should not include it if you feel uncomfortable," Dangel wrote.
She added, however, that "this is not just about abortion or this Term,"
because "the Justices who get appointed in the next few years are going to
make up the Court for most of my life!"
Dangel closed by remarking that "while this is completely inappropriate, I
cannot help [but] be disappointed with JPS [John Paul Stevens]" both in
Casey and in two other cases where he diverged from Blackmun. "The
people of America need someone to tell them the truth. And, as the author
of Roe, I think you're the only person who can do it." Later that
day, Dangel informed Blackmun that Kennedy had had a clerk pass along his
concern about how the Blackmun draft referred to Rehnquist simply as "the
Chief." "While I have my doubts as to whether he deserves to be call[ed]
'Justice' on this one," Dangel told Blackmun, "I guess there's no need to
ruffle feathers needlessly."
The partisan politics evident in McUsic's and Dangel's memos should not
have been tolerated by any justice, liberal or conservative, and no
similarly intemperate statements appear in clerks' memos to Brennan,
Marshall, or Powell. In addition, the hostile and sometimes harshly
sarcastic references to other justices—and Blackmun's failure to stop such
comments—appear to indicate that the justice himself lacked respect for
some of his colleagues.
VI
Just how disengaged Blackmun was during his final term on the court is
highlighted by the story of his dissent in the 1994 death penalty case of
Callins v. Collins. In the summer of 1993, clerk Andrew Schapiro,
who now practices law in New York, wrote Blackmun a memo: "You have on
occasion this Term expressed frustration with the Court's capital
jurisprudence, and have suggested more generally that the death penalty
itself may be invalid. . . . I want to outline briefly in this memo why I
believe the time has come to abandon the effort to craft a constitutional
death penalty." He explained that "twenty years of applying the Eighth
Amendment to the death penalty has demonstrated that the rationalizing
enterprise has failed. Efforts to fine-tune the machinery of death cannot
succeed, because a process sufficiently accurate with respect to
individual circumstances requires so much discretion as to be unacceptably
arbitrary."
One week later, Blackmun noted on Schapiro's memo that incoming clerk
Michelle Alexander, who now teaches at Stanford Law School, "will expand &
see what she comes up with." In late October, Alexander gave Blackmun a
memo saying, "here is the death penalty dissent," which "has been written
for Gary Graham," a Texas death row inmate whose appeal the court had
rebuffed earlier that year. "I believe that his case would provide an
excellent vehicle for your dissent," Alexander said, but it "can be
revised with little difficulty to account for the circumstances of any
capital case." She explained: "There are numerous approaches that could be
taken in this dissent, and I have chosen but one of them. After lengthy
and helpful discussions with my co-clerks, we are of the opinion that this
approach is the most persuasive and intellectually honest. You may, of
course, disagree."
"This is a very personal dissent," Alexander continued, "and I have
struggled to adopt your 'voice' to the best of my ability. I have tried to
put myself in your shoes and write a dissent that would reflect the wisdom
you have gained, and the frustration you have endured, as a result of
twenty years of enforcing the death penalty on this Court. I recognize,
though, that my writing style may be different than yours, and that I have
no intimate familiarity with the evolution of your jurisprudence."
But all indications are that Blackmun was entirely happy with Alexander's
work. Several weeks later, Alexander gave Blackmun a note that read, "This
morning at breakfast you mentioned that you would like to release the
death penalty dissent by the end of the calendar year. I think that is
wise," because several pending cases offered appropriate opportunities. In
particular, "there is little chance that a better vehicle for your dissent
will come along before the end of the year" than Schlup v. Delo, an
"extraordinary" capital case. In closing, she stated, "I would love to
hear your thoughts."
Schlup was postponed, however, and Alexander reported that she had
reviewed all petitioners with scheduled execution dates. "I recommend that
you plan to release your dissent when Malcolm Rent Johnson is executed on
January 31," she wrote. Alexander once again concluded her note by saying,
"I'd love to hear your thoughts." One week later, with Johnson's execution
indefinitely delayed, Alexander advised that "[i]nstead of searching for
the ideal vehicle for the dissent, the dissent should be tailored for
any death case," so that it simply could be issued whenever the next
execution occurred. Two days later, she told Blackmun that she had revised
the existing draft to remove the Gary Graham references, but explained, "I
have not altered any of the cites. It is therefore unnecessary for
you to recheck the cites for accuracy."
BY MID-FEBRUARY IT APPEARED CERTAIN that the next execution would be of
Texas death row inmate Bruce Callins on February 22. Alexander told
Blackmun that "I think it's important to vote to grant all the capital
cases that are on the same order list as Callins" when that list was
considered at the justices' February 18 conference. Those orders would be
issued publicly on the following Tuesday, and "[t]hat means that your
dissent will be released on February 22, the night of Callins' execution."
Alexander emphasized that "this is an excellent arrangement," since "your
dissent from the denial of cert will be released within hours of Callins'
execution. Remember to state at the conference tomorrow that you vote to
grant Callins' cert pet[itio]n and that you will circulate a statement
dissenting from the denial of cert in the afternoon."
Blackmun's Callins dissent, highlighted by his declaration that "I
no longer shall tinker with the machinery of death," was issued on
February 22, and less than six weeks later, on April 6, Blackmun announced
his retirement, effective after the end of the term. Readers of
Alexander's and Schapiro's memos may rightly wonder who was functioning as
a justice, and who as a clerk. Alexander twice told Blackmun, "I would
love to hear your thoughts" about the opinion, yet her memos suggest that
Blackmun was most concerned with whether he should "recheck the cites."
No public evidence exists that Blackmun experienced the type of mental
decrepitude that marred the final terms of Justices Hugo L. Black, William
O. Douglas, and Thurgood Marshall, as detailed in several scholarly
studies of the justices' lives. Nor is there any evidence that a clerk
ever determined or altered any of Blackmun's votes in a case, as did occur
with Justice Frank Murphy in the 1940s, or that Blackmun ever voted while
failing to understand what he was doing, as Marshall's case files reveal
that he did on at least one occasion. But what transpired in Blackmun's
chambers, especially after 1990, was nonetheless a scandalous abdication
of judicial responsibility.
Harry Blackmun will be remembered first and foremost as the author of
Roe v. Wade, just as Thurgood Marshall will be remembered as the
Supreme Court's first African-American justice. Yet in the annals of
Supreme Court history, Marshall unfortunately will also be remembered as a
justice who overstayed his time on the bench. Likewise, Blackmun must now
be seen not only as a justice who evolved toward a more compassionate
jurisprudence but as a justice who increasingly ceded far too much of his
judicial authority to his clerks.
David J. Garrow writes frequently about U.S. Supreme Court
history and is the author of Liberty and Sexuality and
Bearing the Cross, a Pulitzer Prize-winning biography of Martin
Luther King, Jr.