Unintended Consequences

Unintended Consequences

The story of Supreme Court Justice Harry Blackmun illustrates the value of a truly independent judiciary.


In the spring of 1970 Richard Nixon was having trouble filling a vacancy on the Supreme Court. His first two choices, both Southern conservatives, had been voted down in the Senate. Smarting from these defeats, the Administration turned to an old childhood friend of Chief Justice Warren Burger, whom Nixon had appointed a year earlier. He was a 61-year-old Midwesterner named Harry Blackmun. Assistant Attorney General William Rehnquist had vetted Blackmun’s record as an appellate judge and found him to be “conservative-to-moderate in both criminal law and civil rights.” In April Nixon met with his third-choice candidate in the Oval Office.

Among Blackmun’s papers, from which Linda Greenhouse has crafted her highly readable story of his career on the Supreme Court, there is a dictation he made to his file about the meeting. As the interview ended, Blackmun recounts, Nixon “took my arm…and led me to the window overlooking the Rose Garden. He said, Judge, when you come down here, you will be completely independent. That is the way it should be.”

It is difficult to imagine that at the time either man foresaw just how accurate the President’s words would turn out to be. The fact was, a Republican President, preparing to run against legalization of abortion in his re-election campaign, had just nominated a man who less than three years later would write the Roe v. Wade decision, and who over the course of the next two decades would become the most liberal voice on the Supreme Court. As the country prepares for what promises to be a major battle to fill the seat that Chief Justice Rehnquist is expected to retire from later this year, Greenhouse, who has covered the Supreme Court for the New York Times since 1978, has given us a very timely account of how this transformation took place and of how a Justice who was at first suspicious of feminism became an ardent defender of gender equality and women’s rights.

Upon his retirement in 1994, Blackmun, who it turns out was quite a pack rat, arranged for all 1,585 boxes of his papers–from childhood diaries to draft opinions to notes passed down the bench from other Justices–to be donated to the Library of Congress and opened to the public five years after his death, which came in 1999. Anticipating intense interest in the abortion cases in particular, the Blackmun family gave Greenhouse a two-month head start in the archive. The result was a series of three feature articles that ran in the Times last year covering Roe and its legacy, Blackmun’s evolving view of the constitutional status of the death penalty and, finally, the story of his lifelong friendship with Chief Justice Burger. Becoming Justice Blackmun is essentially a book-length treatment of these same three subjects, and thus, as its author readily admits, is neither a full biography nor a complete account of a judicial career. (Friends and foes of Blackmun, have no fear; such tomes are well under way.)

In many ways, the most narratively compelling portion of the book takes place before Blackmun even reaches the Court. In the same lucid, economical prose that distinguishes her reporting in the Times, Greenhouse tells the story of Blackmun’s upbringing in a modest household in St. Paul and his career in private practice. Surprisingly enough, what emerges is a portrait of a cautious man, held back at times by financial worries and hesitant at nearly every step to take risks. There is little indication of the person who would eventually disagree so starkly and repeatedly with his old childhood friend Burger, who grew up in the same moderate Republican climate of opinion that Blackmun did.

After attending the same kindergarten, the two went to different schools but remained close friends throughout adolescence and young adulthood. While Burger stayed in Minnesota for college and law school, Blackmun won a scholarship to Harvard College and went on to Harvard Law School. Upon returning to Minnesota during the early years of the Depression, he found his father’s business failing and had to lend him money from his law clerk’s salary.

“I will hand it over,” he said in his diary, of the $300 his father requested in 1933, “but it wrecks my own plans…and absolutely upsets any plans that I may ever have had of getting married.” This was overstatement, but the young Blackmun, influenced by the economic times, his family’s circumstances and perhaps his mother’s depression, took a consistently cautious view of his own prospects, turning down an offer in the Roosevelt Labor Department just as the New Deal was getting under way and remaining in a lower-paid position at a Minneapolis firm in order to build up financial security. Indeed, he waited nearly a decade, until after he had made partner, to marry. In 1949 he began a nine-year stint as chief counsel at the Mayo Clinic, a period he later described as the happiest of his professional life.

Burger, meanwhile, long active in Republican circles, moved to Washington in 1953 to join Eisenhower’s Justice Department, and three years later he was appointed to the US Court of Appeals for the Washington, DC, Circuit, often a stepping stone to the Supreme Court. Describing them as “phonies” and “mediocrities,” Burger complained in letters to Blackmun about the Justices then on the highest Court, who, under Earl Warren’s leadership, were handing down one landmark decision after another strengthening the rights of the accused against state prosecutors. Always more politically ambitious than Blackmun, Burger worked hard to position himself for a Supreme Court nomination, finally succeeding in 1969.

After Blackmun’s own appointment in 1970, his mother warned him that his relationship with Burger would inevitably change. “Mother, it just can’t,” he recalls saying. “We’ve been friends for a long time.”

“Well, you wait and see,” she told him.

In his first several terms, he voted with the Chief Justice so consistently that they were dubbed “the Minnesota Twins,” much to Blackmun’s irritation. Liberals on the Court like Thurgood Marshall, William O. Douglas and William Brennan viewed him as another foot soldier in Nixon’s campaign to reverse the march of the Warren Court. When he dissented, along with Burger, in the Pentagon Papers case, arguing against the New York Times‘s right to publish the McNamara archive, a postcard from Minneapolis arrived: “The 2 Nixon appointees from Dayton Bluff Elem. School jump thru the hoop like 2 trained poodles.”

The two men would vote on the same side of another landmark opinion, though this time not in line with the policies of the man who had appointed them. In September 1971, facing health problems, Justices Hugo Black and John Harlan both resigned, leaving the Court at seven. Two abortion cases had already been accepted for argument later that fall. At the conference after oral arguments, a tentative majority of the diminished Court emerged to strike down both the Texas law challenged in Roe v. Wade, which allowed for abortion only to save the life of the mother, and the Georgia law challenged in Doe v. Bolton, which had a broader range of exceptions. Burger and Blackmun, both of whom agreed that the Texas law was unconstitutional, thought the Georgia law might stand. Essentially breaking Court protocol, Burger assigned both opinions to Blackmun, though the Chief appeared to be in the majority in only one of them. (By tradition, if the Chief is in the majority, he assigns the opinion; when he is in dissent, the senior Associate Justice in the majority does the assigning.)

Greenhouse suggests that in doing this Burger was relying on Blackmun to produce a narrow, perhaps even technical decision, which might avoid the issue of a constitutional right to abortion and cause the least controversy. Blackmun, always a slow writer, took until May to circulate a draft. By then, however, his initial impressions had changed, and he favored striking both the Texas and Georgia laws. (He had concluded that the right to abortion fell within the larger right to privacy that had been established in two earlier cases involving laws banning the use and sale of contraceptives.) At this stage of the proceedings, Doe v. Bolton was still the lead opinion, in which he set forth the proposition that the choice to have an abortion was “within the scope of personal rights protected by the Ninth and Fourteenth Amendments.” His first draft of Roe focused on a jurisdictional issue and barely mentioned the right to abortion. Given the mixed response to his first effort by the other Justices–many found it poorly reasoned and insufficiently rooted in existing constitutional doctrine–and the approaching end of the term, Blackmun asked that the cases be held over for reargument. The suggestion faced stiff opposition from Douglas; if the cases were reargued, Nixon’s new appointees–Lewis Powell and Rehnquist–would have a vote, and he feared the decisions would go the other way. Douglas also doubted Blackmun’s commitment to the outcome and worried that he might change his mind over the summer. About the latter, Douglas couldn’t have been more wrong. The delay only deepened and strengthened Blackmun’s commitment to his position.

While much of this history has been told before, notably in Bob Woodward and Scott Armstrong’s 1979 court classic The Brethren (which is being reissued this summer to coincide with public interest in the coming confirmation battle), what Greenhouse has given us through a study of Blackmun’s papers is a fuller sense of his thought as it developed. During the summer recess before reargument, he returned to the Mayo Clinic library and did extensive research on the history of abortion regulation, learning, apparently for the first time, that most state laws dated only to the mid- to late nineteenth century. Most interesting, perhaps, is an article Greenhouse found in Blackmun’s Mayo Clinic research file: a Washington Post column written by pollster George Gallup titled “Abortion Seen Up to Woman, Doctor.” The piece began with the line, “Two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.”

Forests have been felled to print all the jeremiads on Roe as an arrogant, elitist assertion of what Byron White in his dissent called “raw judicial power,” most of these relying on the evidence that thirty-seven states banned abortion at the time. And in what has since become the standard center-liberal line of attack, Justice Ruth Bader Ginsburg, before going on the Court, criticized the decision for removing the controversy from the political process at an inopportunely early point in the national debate. A criticism less often leveled is that the opinion’s author may in fact have been spurred on by that other famously antidemocratic element–public sentiment, i.e., a solid majority at the very time the decision was handed down, favoring a woman’s right to choose.

The Supreme Court’s role is obviously not to translate public opinion into legal doctrine. As a matter of design, it’s the branch of government that faces what the legal scholar John Hart Ely called “the counter-majoritarian difficulty,” one of whose facets is the protection of minority rights against a hostile public. And yet, in an era when we have what amounts to a counter-majoritarian legislature in the form of a Senate whose Republican majority represents fewer citizens than the Democratic opposition, it’s not immediately obvious that the federal judiciary is in fact our least representative branch. When well-funded intensity of preference writes the legislation and prevails over less-organized but nonetheless majority sentiment on everything from tax cuts to environmental policy, those in need of protection in the political process may no longer be the “discreet and insular minorities” the Supreme Court famously identified as requiring it but the diffuse majorities whom geography and the Electoral College have demoted to onlookers in the procession of their own national life. The awkward fact for antiabortion groups was and remains that in the case of Roe v. Wade, the Supreme Court and a majority of the citizenry were more or less in agreement.

We’ll never know with certainty what place such public sentiment had in Harry Blackmun’s thinking, or that of the six Justices who joined his opinion, but Blackmun’s own experience clearly played a role. For one, at the Mayo Clinic he had been counsel to doctors, who were the legally culpable parties under the criminal statutes. He was also the father of a young woman who several years earlier had become pregnant at 19 (something Woodward and Armstrong either did not know or chose not to mention). Rather than have an abortion, she dropped out of college and married her boyfriend, only to end up miscarrying several months later and eventually divorcing her husband. In the far more detailed and historically grounded draft of Roe that emerged in the fall of 1972, Blackmun began his opinion by acknowledging “our awareness of the sensitive and emotional nature of the abortion controversy.” Among those things that he recognizes might influence a person’s view, along with religion and philosophy, is “one’s exposure to the raw edges of human existence.” One imagines that his daughter’s experience was just such an exposure for Blackmun.

As it turned out, Nixon’s new appointee Powell, a lawyer from the conservative establishment of Virginia, was also aware of such raw edges. His father-in-law and both of his brothers-in-law were obstetricians. As Woodward and Armstrong put it, “Powell had heard all the horrifying stories of unsanitary butchers and coat-hanger abortions.” Much to his colleagues’ surprise, he joined Blackmun’s opinion.

By early January 1973, a final draft encompassing the suggestions of other Justices was complete. White and Rehnquist had written their dissents. The only person preventing the decision from being handed down was Chief Justice Burger. He would join the opinion, but said he hadn’t yet decided if he would write a separate concurrence. Several Justices, including Blackmun, suspected his delay was intentional. Burger was scheduled to administer Nixon’s second oath of office, and preferred not to arrive onstage as the Chief who had just signed off on the legalization of abortion. In his eventual three-paragraph concurrence, he wrote, “Plainly, the Court today rejects any claim that the Constitution requires abortion on demand,” parroting the exact phrase Nixon had used in his campaign. Two days after the inauguration, on January 22, Blackmun read his summary of Roe v. Wade from the bench. The news of Lyndon Johnson’s death that same day drowned out the story in the next day’s papers. News traveled nonetheless. Later that same week Blackmun flew to a speaking engagement in Iowa. He was met by several dozen antiabortion protesters. As Greenhouse aptly puts it, “The rest of Harry Blackmun’s life had begun.”

Given the way Greenhouse describes Burger and Blackmun’s friendship before they joined the Court–particularly her discussion of the sometimes tortured letters and notes Burger sent back to Minneapolis, hinting at his bleak state of mind–it’s tempting to imagine the generally pompous Chief Justice as Henry II and Blackmun as his Thomas à Becket, a lifetime friend appointed to power who turns out to be the thorn of conscience in the king’s side. Clearly Burger was involved in getting his old friend nominated in the wake of Nixon’s two failures in the Senate. He wanted an ally to help execute the plans he had for a the post-Warren era on the Court.

One of the consequences, however, of Greenhouse’s purposefully limited approach (she relied almost solely on Blackmun’s archive, choosing not to interview family or former clerks) is that once the two men are together in the same building and their personal, written correspondence dwindles, the story line drifts, quite literally, into the margins. We are told that on one of Burger’s drafts concerning involuntary commitment to mental institutions, Blackmun scrawled caustically, “The expert in psych!” and graded the opinion a “C-minus.” Elsewhere, the attitudes of Blackmun’s clerks, as evidenced by notes to their boss, are used to indicate the diminishing respect he had for his old friend. “The Chief’s opinion has come round,” one writes. “Like the Bourbons, he forgets nothing and learns nothing.” But in the clubbish confines of the Supreme Court, where each case may require a new alliance, no henchmen are sent to rough up the troublesome friend gone too liberal. A surface peace prevails.

But Blackmun did become a liberal, defying not only his old friend’s expectations but quite possibly his own. Like the more recent case of Justice David Souter, Blackmun began in one camp and ended up in another. Voting with Burger in 87 percent of cases handed down in his first five years on the Court, by his last five Blackmun voted with Brennan and Marshall well over 90 percent of the time. While one can partly account for this by noting that the Court became steadily more conservative around him, a shift in voting pattern this dramatic indicates that by the time Blackmun reached his mid-70s and 80s, his view of the legal landscape had fundamentally altered. For one thing, Roe came under increasing attack in the Reagan years. Greenhouse describes the ever more tenuous alliances that protected the decision from being overruled, as well as the growing bitterness voiced on both sides of the debate within the Court. While she never makes this argument explicitly, the totality of the evidence she presents suggests that at least part of Blackmun’s transformation came as a result of feeling personally identified with (and blamed for) his earlier decision. Blackmun had a reputation for being rather thin-skinned and sensitive to criticism, a point Woodward and Armstrong are more explicit about than Greenhouse. Reading the two books together, however, one can begin to piece together the way Blackmun’s shift leftward is also, in an odd sense, his digging in his heels. When Sandra Day O’Connor dissented from the Court’s striking down of Pennsylvania’s “informed consent” provisions in 1985, Blackmun discounted her arguments, noting on her draft: “She is just against abortion.”

In Roe, Blackmun had based his argument on the right of the physician to make a medical decision free of state interference. He declined to adopt as his central premise the feminist argument that abortion is anchored in a woman’s right to personal autonomy. The more forcefully Roe was attacked, however, the closer Blackmun drew to the feminist line of reasoning. In 1992 came Planned Parenthood v. Casey, in which it seemed the conservatives finally had the votes to overturn Roe. But Justices Souter, O’Connor and Kennedy were unwilling to go that far. While dispensing with the trimester system and the fundamentality of the constitutional right to abortion, they joined the liberal wing of the Court to uphold the basic premise that states could not outlaw the practice.

In a separate opinion, and in striking contrast to his earlier logic, Blackmun wrote, “By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course.”

Nor was Blackmun’s new emphasis on personal autonomy limited to abortion. In 1986 he wrote a prescient dissent in Bowers v. Hardwick, the decision upholding a Georgia sodomy statute, saying, “What the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others” (he did not live to see this view vindicated, and Bowers overturned, in 2003). Completing his migration toward the liberal end of the judicial spectrum, Blackmun also finally came out in opposition to the death penalty. For decades, he had refrained from imposing his personal opposition to the death penalty on the states, considering it the legislature’s province. But in his last year on the bench, after growing frustration with the limitations the Rehnquist Court had placed on habeas corpus review, Blackmun decided that a lethal punishment that “remains fraught with arbitrariness, discrimination, caprice, and mistake” could no longer pass constitutional muster. A line in this dissent, drafted by a clerk and edited by Blackmun, became one of his most memorable: “From this day forward, I no longer shall tinker with the machinery of death.”

It will take further study in the voluminous archive and interviews with clerks and contemporaries to fully access Harry Blackmun’s life and tenure on the Court. (The May-June issue of Legal Affairs features an explosive article by the historian David Garrow, “The Brains Behind Blackmun,” which raises questions about the degree of the late Justice’s reliance on his clerks’ work in his final years; former clerks have in turn come forward to dispute Garrow’s assertions.) Because of Blackmun’s authorship of the single most controversial decision in the modern history of the Supreme Court, his legacy is bound to be fought over tooth and nail.

But if there is one thing we can say for certain at this juncture, and that Greenhouse’s book illustrates, it is the value of a truly independent judiciary–i.e., a system in which a man’s or woman’s intellect and conscience, as applied to the interpretation of text and doctrine, is allowed to grow and develop free of the ideological tether of his or her appointor. This is a value it is easy for liberals to appreciate in the case of men like Harry Blackmun and David Souter. But if we want to avoid real judicial tyranny, rather than the illusion of it lately conjured by conservatives, it is a value that must be defended with equal vigor when a judge’s views move in the opposite direction. That is the content of a patriotism motivated by the ideal of a government of separate and equal powers.

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