Events

Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey

May 19, 2005 // 12:00am

Supreme Court Justice Harry Blackmun (1908-1999) left all of his papers, both personal and those from his tenure on the Supreme Court (1970-1994) to the Library Congress, with a provision that they be made available to the public five years after his death. Linda Greenhouse drew on them, and from the knowledge she gained in covering the Court for over twenty years, for Becoming Justice Blackmun. During the Division of United States Studies' discussion of the book, Greenhouse commented that the Blackmun collection of over half a million documents not only reveals the inner workings of the most powerful court in the United States but also portrays a modest, thoughtful moderate who never intended to become the flashpoint for the Court's most controversial cases on matters such as abortion. Yet he grew to accept and defend his position on these issues.

Blackmun's papers, which Greenhouse described as constituting "chapters of an examined life," chronicle his evolution in great detail. They begin with his boyhood diary, continue with his correspondence with friends and colleagues, and conclude with his extensive notes from his Court years. One of the threads that runs through them, and the one highlighted by Greenhouse, was his lifelong friendship with Chief Justice Warren Burger, who served on the Court from 1969 to 1986. When Blackmun joined the Court, he and Burger were dubbed the "Minnesota Twins," and they both expected that they would support each other on the Court as they had done throughout most of their lives. Greenhouse posits that this mutual expectation made it more difficult for them to overcome their disagreements when they found themselves on opposite sides of various issues. The case that of course became Blackmun's hallmark as well as a major point of contention in the friendship was Roe v. Wade (1973). Burger assigned the writing of the 7-2 opinion for the Court to Blackmun, who in turn became the target for all the accolades and criticisms surrounding the decision. He found himself in the position of having to defend the majority decision and its application in subsequent cases and, according to Greenhouse, he felt abandoned when Burger did not continue to stand with him in the defense.

Greenhouse emphasized that Blackmun was startled at the public's reaction to Roe. While the case is currently viewed as one about women's autonomy, Blackmun's opinion was written as a defense of the autonomy of doctors to treat their patients. It was Blackmun's defense of Roe and its logical extension that gradually led him to adopt the position that abortion was a women's issue. It also led him to other positions quite different from those with which he arrived on the Court. In Harris v. McRae (1980), for example, where the court held the government not responsible for providing poor women with medically necessary abortions through Medicaid, Blackmun was one of the dissenters who argued that the government could not deny the poor one of their constitutionally protected rights. He also became what Greenhouse described as "the father of the modern doctrine of commercial advertising" by writing the majority opinion in Bigelow v. Virginia (1975). That case upheld the right of a newspaper to publish an advertisement for an organization that referred women to clinics and hospitals for abortions.

Judge Merrick Garland described the release of Blackmun's papers to be a great gift to the country but, equally, as creating a possible challenge to future historians of the Supreme Court. Blackmun's extensive correspondence allowed Greenhouse to present the highly personal tale of the tragic Burger-Blackmun friendship that began in boyhood but could not survive their differences as colleagues on the Supreme Court. The notes he took about the justices' discussions of cases contain details that other justices might have preferred to remain private. Garland wondered whether Blackmun's release of his correspondence with his colleagues and his detailed notes of their private conferences will hinder other justices from permitting access to their papers in the future. He agreed with Greenhouse that doctrinal differences accounted for the disintegration of the Burger/Blackmun relationship, as reflected in the statistical analysis compiled by political scientist Joseph F. Kobylka. During the first five years of Blackmun's term, he voted with Burger 87.5 percent of the time; during the next five years, 54.5 percent of the time; and in the next five years, in 32.4 percent of the cases.

Dr. Richard Meserve is a former Blackmun law clerk who later assisted the justice by preparing the legal documents pertaining to the disposition of the justice's papers. Saying that Blackmun would have been pleased with Greenhouse's book, he praised her depiction of the justice and added to it by describing Blackmun's daily work habits. Meserve noted that Blackmun "worried very much about the real implications of the decisions of the court, which may explain the change in trajectory over the course of Blackmun's career." Blackmun never felt comfortable with the death penalty, for example, but during his tenure on the federal Court of Appeals for the 8th Circuit, he did not feel it was his place to express those views. He later regretted not having expressed his misgivings during the appellate years or throughout most of his tenure on the Supreme Court. Dr. Meserve's only reservation about Greenhouse's work is its focus on the most controversial issues during Blackmun's Supreme Court career to the exclusion of most of the other 835 opinions authored by Blackmun. The panelists agreed that Blackmun did indeed leave a rich and varied legal history for analysts and scholars to dissect for years to come.



Drafted by Acacia Reed

Philippa Strum, Director, Division of U.S. Studies 202-691-4147

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