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:
"Dear Harry,
"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,
"Yours, Tony."
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.
"Dear Nino:
"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.
"Sincerely,
"H"
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. |