ASHINGTON,
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.