Detroit JOA Was Barely Approved: Deceased Supreme Court Justice Thurgood Marshall's Papers Reveal Justice Blackmun's Last-Minute Switch against It

Article excerpt

DETROIT'S NEWSPAPER JOINT operating agreement only narrowly won Supreme Court approval in 1989 on a 4-4 tie because justice Harry Blackmun switched at the last minute from approval to opposition, according to the recently released papers of the late Justice Thurgood Marshall.

The papers reveal for the first time how individual justices voted on the operations merger of Knight-Ridder's Detroit Free Press and Gannett's Detroit News -- the largest JOA ever approved.

According to the documents, voting in favor of the JOA were Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia.

Voting to overturn the JOA approval by then U.S. Attorney General Edwin Meese were Justices John Paul Stevens, William Brennan, Marshall and Blackmun.

The papers show that Marshall's opposition was apparently influenced by the advice of his law clerks, while Blackmun was persuaded to switch from approval to opposition by the arguments of Justice Stevens.

The light the papers shines on the justices' thinking on the JOA case -- which was shrouded in secrecy at the time because of the 4-4 vote -- was first reported by Bryan Gruley, a reporter in the Detroit News Washington bureau.

For Gruley -- author of Paper Losses, a book about the long and tangled fight for the Detroit JOA that is to be published in the fall by Grove Press -- there were as many frustrations as revelations in the Marshall papers.

"There's just very little in [Marshall's] files on the JOA," Gruley said.

Nevertheless, Gruley's research did turn up some fascinating nuggets on the process that led to approval.

For one thing, the High Court's own legal staff did not think the justices would even take up the JOA case.

"This does not appear to be the type of issue which the court would review," wrote legal staff members Richard Schickele and Dennis McKinnie on March 15, 1989.

The case arrived at the Supreme Court after many twists and turns. On May 9, 1986, Gannett and Knight-Ridder filed for the JOA. …


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