Linda Greenhouse - Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey

Becoming Justice Blackmun

LINDA
GREEN HOUSE

Harry Blackmuns

Supreme Court Journey

Times Books
Henry Holt and Company, LLC
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Copyright 2005 by Linda Greenhouse
All rights reserved.
Distributed in Canada by H. B. Fenn and Company Ltd.

Library of Congress Cataloging-in-Publication Data

Greenhouse, Linda.

Becoming Justice Blackmun : Harry Blackmuns Supreme Court journey / Linda Greenhouse.1st ed.

p. cm.

Includes index.

ISBN-13: 978-0-8050-7791-9

ISBN-10: 0-8050-7991-X

1. Blackmun, Harry A. (Harry Andrew), 1908 2. JudgesUnited StatesBiography. 3. United States. Supreme CourtBiography. 4. Constitutional historyUnited States. I. Title.

KF8745.B555G74 2005

347.732634dc22

2004063772

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First Edition 2005
Designed by Fritz Metsch

Printed in the United States of America
1 3 5 7 9 10 8 6 4 2

FOR
GENE AND HANNAH

CONTENTS

PROLOGUE

JUSTICE HARRY A. BLACKMUN gave the country a great gift. At his death, in 1999, five years after retiring from the Supreme Court, he left his vast collection of personal and official papers to the Library of Congress. Five years after that, on March 4, 2004, under the terms of his will, the library opened the collection to the public: more than half a million items, contained in 1,585 boxes that take up more than six hundred feet on the shelves of the librarys Manuscript Division. This book is the story that Blackmuns papers tell of his life, and of the Court on which he served for twenty-four years.

It is neither a conventional biography nor a comprehensive survey of a judicial career. I did not interview family members or former law clerks. I did not try to reconcile his accounts of cases with those contained in the papers of other justices. I made only minimal use of secondary sources, and most of those were my own articles for the New York Times, written during the sixteen years1978 to 1994that my assignment to cover the Supreme Court overlapped his tenure. Instead, my goal was to extract from this immense collectionfrom childhood diaries, personal correspondence, internal Court memos, and drafts of opinions, as well as the transcript of a thirty-eight-hour oral historya coherent narrative of a consequential life that spanned the decades of the twentieth century and left its mark not only on the law but on American society.

The project began in January 2004, when the Blackmun family gave me access to the collection for two months before the public opening so that I could write an article or series of articles for the Times. The familys aim was to enable the kind of methodical journalistic consideration of the material that would not be possible on a frenzied opening day, when the prospect of examining the original files of Roe v. Wade could be expected to attract large crowdsnot only journaliststo the Manuscript Division reading room. The result was a series of articles that appeared over three days in early March 2004. This book is an outgrowth of that project.

In an essay for the Times that accompanied the series, I compared the sensation of entering the reading room to plunging down a rabbit hole into a separate world, so different from the surface where I had spent twenty-five years as an observer of the Supreme Courts public activities. When I returned to the library to begin working on the book, yet another image came to mind. I was standing in front of a huge open-face mine on which seams of precious metals were visible, running in various directions. I was the miner. I could not, as a practical matter, follow every seam, but I could choose the most promising and see where they led.

In addition to writing the majority opinion in Roe v. Wade, the 1973 decision that established a constitutional right to abortion, Blackmun participated in 3,874 Supreme Court rulings. He wrote significant opinions on such varied subjects as the federal income tax, Indian law, antitrust, and the courtroom use of scientific evidence. Many scholars will use the Harry A. Blackmun Collection to illuminate those areas of law. Still others will use the collection to study various aspects of the Courts processes. The Buffalo Law Review, for example, has published an article by Nancy Staudt, a law professor at Washington University in St. Louis, who used the collection to examine the Courts selection of federal tax issues to consider. Under a grant from the National Science Foundation, another Washington University professor, Lee Epstein, is compiling a digital archive of law clerks memoranda advising the justices on which cases to accept. On only one or two days during my summer in the library was I the only researcher exploring the Blackmun papers. In fact, the library staff told me that of the eleven thousand collections housed in the Manuscript Division, the Blackmun collection was the most intensively used from the moment it opened.

So as I worked the mine, I faced many choices of direction and emphasis. I was selective, searching for those subjects that would shed the most light on a career that was also a remarkable personal journey. The seams I chose to follow most closely were abortion, the death penalty, and sex discrimination, as well as Harry Blackmuns complex and fascinating relationship with his boyhood friend Warren E. Burger, who would serve as the fifteenth chief justice of the United States, from 1969 to 1986. Burgers papers, housed at the College of William and Mary in Williamsburg, Virginia, will remain closed until 2026. For the next generation, anyone seeking to understand Burgers life and career will of necessity turn to the Blackmun collection. Its trove of correspondence between the two men stretches over more than sixty years of a relationship that would seem unlikely if depicted in a novel. Anyone interested in the Supreme Court during the last quarter of the twentieth century will turn to the Blackmun collection as well, for many generations to come, thanks to Harry Blackmuns gift.

Becoming Justice Blackmun

MINNESOTA BEGINNINGS

THE LITTLE LEATHER-BOUND book with the odd word Daylogue embossed on the cover contained a page for each day of the year, with places on each page for five entries. It was a five-year diary, in a format that invited pithy observations rather than rambling introspection. It cost $1.50. Perhaps Harry Blackmun requested it for his birthday. Maybe it was a Christmas present. In any event, on December 30, 1919, just weeks past his eleventh birthday, he opened it and began to write.

The act was hardly remarkable. Many children start diaries, keeping them long enough to record their teenage angst and dreams. Soon enough, the dreams having been fulfilled or forgotten, most of those journals lie abandoned in desk drawers or attic trunks. Harry Blackmun kept writing.