Academic journal article Proceedings of the American Philosophical Society

The Blackmun Papers1

Academic journal article Proceedings of the American Philosophical Society

The Blackmun Papers1

Article excerpt

Documents Reveal the Evolution of a Justice1

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 eighty-three 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 twenty-four-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 twentieth 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.3 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.4

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 Professor 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. …

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