ASHINGTON
— During the six weeks I spent reading Justice Harry A. Blackmun's collected
papers in the Library of Congress, I often felt that I had left the familiar
surface of the earth and plunged down a rabbit hole into a separate world.
It wasn't only that after covering the Supreme Court's public face for
many years I was now immersed in the court's private life. That was the
whole point, after all. It was why I was there, with the permission of the
Blackmun family, who gave The Times an opportunity to examine the papers in
the quiet of January and February before the library opened them to the
world on March 4, the fifth anniversary of Justice Blackmun's death.
No, I felt I had entered another world because, in a literal sense, I
had. The reading room of the Library of Congress's Manuscript Division was
unlike any place I had ever spent time. Walking in there was like entering
the temple of a sect I barely knew existed: before approaching the precious
documents that are the original source material of the country's cultural
and political heritage, a researcher must first strip bare, or nearly so.
All personal possessions, including jackets with pockets, are locked
away. The only paper and pencils allowed are those the staff provides.
Laptop computers are permitted, but they must be opened for inspection upon
entering and leaving. Anyone leaving for a moment, even to make a telephone
call, is checked in and out by a guard much more vigilant than any high
school hall monitor.
It sounds oppressive, but it isn't, really. The rules, the reasons for
which are completely understandable, help create a kind of community of
worshipers at the shrine of the original document. And the shared enterprise
of reading other people's mail - whether it is Walt Whitman's, Margaret
Mead's, Sigmund Freud's or Harry Blackmun's - is mesmerizing. On several
Saturdays, I went to the library to check on one or two items, only to look
up and find that hours had somehow slipped by - a common experience, I
learned.
The Blackmun papers, more than half a million items, are contained in
1,585 boxes. Those numbers were not quite real to me until, in late
December, I received the index to the collection by e-mail. It printed out
to more than 300 pages. I printed copies for myself and Francis J. Lorson,
the recently retired chief deputy clerk of the Supreme Court, who had signed
on as my research assistant.
As we sat in the dining room of Frank's Georgetown town house with the
index spread out on the table, the two months that had loomed before us now
seemed pitifully short. We each searched for a way to express without undue
panic what we were both thinking: now what? Even limiting our search to the
opinions that Justice Blackmun wrote over his 24 years on the court would
not be limited enough. We drew up a road map, listing cases by category, and
got ready to plunge into what looked like very deep water indeed.
We expected the abortion and death penalty files to be both interesting
and important, and of course they were. But the material on Chief Justice
Warren E. Burger was completely unexpected in its range and its revealing
nature. There were two main collections of correspondence between the two
friends, one from their shared early adulthood and the other from their
service on separate federal appeals courts.
During the 16 years they spent together on the Supreme Court (from
Justice Blackmun's arrival in 1970 until Chief Justice Burger's retirement
in 1986) they grew apart in both substance and style. The chief justice
proved to be a heavy-handed manager of an increasingly resentful group of
colleagues, while Justice Blackmun moved rather quickly out of his shadow to
assert his independence and increasingly liberal views. By the end, the two
were communicating, if at all, through crabbed memos.
Having known Chief Justice Burger - remotely, to be sure, but I covered
the court during seven years of his tenure - I never would have imagined him
as the writer of these self-appraising, importuning, sometimes poetic, often
passionate letters to the friend he turned to for professional advice and
emotional reassurance. Reading them was like entering a Victorian epistolary
novel. Of course, I knew in advance the sad final chapter of estrangement,
but the sense of loss and of mutually dashed expectations was palpable in
the bitter silence that followed.
The Burger letters also pointed me to valuable information elsewhere in
the collection. Had I not come upon Harry Blackmun's 1967 letter to Warren
Burger expressing deep regret at having suppressed his real views against
the death penalty in an opinion he had just written for the appeals court
upholding a death sentence, I never would have called for the file on that
case, Pope v. United States.
The file revealed what I came to think of as Justice Blackmun's
"Rosebud,'' at least as far as the death penalty was concerned: the crucial
incident, retrospectively, that made sense of all the rest. It took him an
additional 27 years, but the moment came, almost exactly 10 years ago, when
he gave himself permission to speak his mind at last, explicitly renouncing
the death penalty. Perhaps it freed him to retire, which he did, at 85, a
few months later.
In addition to the serendipitous discoveries, the project gave Frank and
me the chance to satisfy our curiosity about particular cases. Sometimes we
liked what we found, and sometimes we were, frankly, a bit sorry to have
found it. In the former category, definitely, was "Poor Joshua!'' - Justice
Blackmun's exclamation of empathy and dismay in a dissenting opinion in a
1989 case about the rights of a little boy whose father had beaten him
nearly to death. This was such an unusual expression of judicial sentiment
that I had always wondered where it came from.
It came, it turned out, directly from Harry Blackmun, unmediated by any
law clerk, unrevised by any second thoughts. In the file on the case,
DeShaney v. Winnebago County, is Justice Blackmun's draft of the dissent, in
his tiny handwriting on lined paper, almost precisely as it was later
published.
On the other hand, one of Justice Blackmun's most famous passages, from
his endorsement of affirmative action in the Bakke case, turns out not to
have been so original. In his separate opinion in that 1978 case, he wrote:
"In order to get beyond racism, we must first take account of race. There is
no other way.
In his file on the Bakke case is an article on affirmative action by
McGeorge Bundy, published in the November 1977 issue of The Atlantic
Monthly. In the article (which Justice Blackmun marked "Read 5/6/78'' - in
other words, as he was preparing the opinion that was issued the next
month), Bundy, the former national security adviser and Harvard dean, wrote:
"To get past racism, we must here take account of race. There is no other
present way.''
There is no footnote to this source in Justice Blackmun's opinion. Trying
to trace the opinion back through its various drafts, we never could reach a
conclusion on whether the lapse was Justice Blackmun's or a law clerk's. Nor
did we learn whether Mr. Bundy, who died in 1996, ever commented on the
borrowing; it may well be that he was terrifically pleased to have endowed
the affirmative action debate with such a pithy phrase.
As the project moved to the writing stage, I found that I missed the
daily ebb and flow in the reading room: the man with the long gray ponytail
researching the Civil War ("I'm working on a new angle''), the dissertation
writers, the people doing family history, but most of all the helpful and
enthusiastic reference librarians who work there. One, Jeffrey M. Flannery,
took Frank and me on a backstage tour through the shelves one quiet
afternoon. There were George Washington's diaries; the voluminous files of
leaders of the civil rights movement; the papers of Edna St. Vincent Millay;
the papers of Frederick Douglass - 11,000 collections in all.
"When I go home at night,'' Mr. Flannery said, "I like to think that
they're all in there talking to each other.''