Book Discussion -- Harry A. Blackmun: The Outsider Justice
Tinsley E. Yarbrough, Distinguished Research Professor of Political Science, East Carolina University, author; commentators John Ferren, Senior Judge, District of Columbia Court of Appeals, and former Fellow, Woodrow Wilson Center; Richard Lazarus, Professor of Law and Faculty Director of the Supreme Court Institute, Georgetown University Law Center.
When Justice Harry A. Blackmun took his seat on the Supreme Court of the United States in 1970, he joined a court presided over by Chief Justice Warren Burger, Blackmun's close childhood friend. The two men's votes on the Court during Blackmun's first years there were so similar that the media soon dubbed them the "Minnesota Twins" (they both grew up in that state). Within a few years, however, Blackmun struck out on a notably different jurisprudential path and the friendship soured. The question addressed by Tinsley Yarbrough in Harry A. Blackmun: The Outside Justice, which was discussed in a session convened by the Division of United States Studies, was what accounted for this development in Justice Blackmun's jurisprudence.
Blackmun felt "almost desperate" and overwhelmed by a feeling of inadequacy when he took his seat on the Court, Yarbrough reported. The new Justice had gone to Harvard College and Harvard Law School, and had fashioned a successful career as a lawyer and appeals court judge. He had, however, grown up in a financially unstable home with a frequently unemployed father and an emotionally fragile mother. His insecure childhood left Blackmun considering himself one of society's outsiders, someone who did not "belong," and that perception, Yarbrough said, colored his jurisprudence.
Blackmun's childhood resulted not only in his great self-doubt and his empathy for underdogs but, Yarbrough believes, also affected his style on the Court. During Blackmun's early years on the Court he spent an enormous amount of time on writing opinions, sometimes exasperating his colleagues and leading his law clerks to offer to write initial drafts for him. He accepted the offer, and the clerks' drafting of opinions became the way the Blackmun chambers operated.
That did not mean, however, that Blackmun's opinions reflected the thinking of the clerks rather than of the justice. Although his clerks were unaware of it, Blackmun taped summaries of cases to himself, thinking through his approach to them. He regularly told his clerks what the various justices had said in the conferences at which the Court votes after hearing cases, and let them know as well what his reactions were to the other justices' comments. In addition, he interacted extensively with his clerks – having breakfast with them every morning, for example. The result, Yarbrough said, was that the clerks knew where Blackmun stood on every case before they were asked to draft opinions. Blackmun then went to work on the drafts so that the opinions became collaborative endeavors.
In part because of the fame that followed his writing the opinion for the Court in Roe v. Wade (1973), Blackmun became a very public figure. He participated in high-level conferences at the Aspen Institute every year and gave numerous media interviews. He also struck out on a judicial path that demonstrated his concern for women, sexual minorities, and consumers, which differentiated him from Chief Justice Burger.
Judge Ferren agreed with Professor Yarbrough's description of Blackmun's approach to writing judicial opinions, noting that the physical act of writing an opinion does not necessarily mean that the writer supplies the intellectual thought behind the opinion. Justices of an earlier era had fewer clerks and drafted their own opinions. (Each justice was entitled to one clerk in the early decades of the twentieth century, two after 1948, three from 1970 on, and has been entitled to four since 1978. The increase is particularly interesting in light of the fact that while the Court handed down rulings in over 170 cases per year in the late 1980s, it is currently disposing of only about 80 a year.). The justices' opinion writing is now a "joint venture with their law clerks." The justices, however, supply the overall thinking that goes into them. The only time a clerk may be given a relatively free hand is when he or she drafts an opinion for a unanimous court in a relatively uncontentious case, because in such instances the clerk knows that all the justices have agreed on what the thinking conveyed in the opinion should be.
Continuing the discussion of opinion writing, Richard Lazarus noted that today, only Chief Justice John Roberts and Associate Justice David Souter write their opinions out in longhand – which does not imply, however, that their clerks do not give them drafts. Turning to the substance of Blackmun's opinions, Lazarus praised the Justice not only for his approach to reproductive freedom and commercial speech but for his early championing of environmental protection. He commended Prof. Yarbrough for a book that makes clear that even champions such as Blackmun have foibles and that Blackmun suffered from what Lazarus saw as a great absence of joy in his life. The book also indicates that, with his empathy for the underdog and his overwhelming feeling of inferiority, Blackmun played something of a loner's role on the Court.
The panelists and audience then engaged in a discussion of the factors – ideological and personal as well as intellectual – that may help explain why justices hand down the decisions that they do, and the factors that might be considered by a president before making a nomination to the nation's highest tribunal.
Philippa Strum, Director, Division of U.S. Studies 202-691-4129