The Real Story Behind the Release of Justice Blackmun's Papers and Tapes
What They Reveal, and Do Not Reveal, About the Man and the Court

By EDWARD LAZARUS

Thursday, Mar. 18, 2004

On March 4,the voluminous papers of Justice Harry A. Blackmun became open to the public. Over the week that followed, the New York Times, Washington Post, Los Angeles Times and other major national newspapers ran front-page stories on what the papers revealed. In addition, Nina Totenberg broadcast a five-part NPR series on the papers, and C-Span started airing an extensive and previously sequestered oral history that Justice Blackmun recorded a few years before his death in 1999.

For all the fanfare, however, the real story of the papers and tapes, at least thus far, has been missed: The news is how very little explicit information they contain about either the Supreme Court or Justice Blackmun himself.

Thus, the news stories based on the papers have contained snippets of new information about how particular cases were decided. But they have not yielded what many scholars hoped for: A comprehensive written record of both Blackmun's internal deliberations and the Court's decisional processes.

Justice Blackmun's Personality: Shy, Circumspect, Sincere, and Intense

These expectations were never realistic. Justice Blackmun was a shy and circumspect man. He held strong views about his fellow justices, but he was the kind of person - a Scandinavian of old- fashioned virtue -- who generally kept these views to himself, or let them leak out only in an isolated quip, wry turn of phrase, or mischievous grin.

Blackmun was often disparaging of himself. (For instance, he liked to tell clerkship applicants that he was the least able justice). But he was no Justice Felix Frankfurter or William O. Douglas, penning private diatribes against his colleagues for posthumous release.

Even more important, inside the community of the Court, Blackmun carved out for himself a distinctly solitary existence. From 8am to 9am every morning, Blackmun would breakfast with his clerks in the Court cafeteria. (Clerks also spent some time with the Justice at the end of the day as he packed up for home.)

As a former clerk, I remember these breakfasts fondly. In this hour of casual conversation, Blackmun's deep interest in, and concern for, other people was manifest. He knew the name of every Court employee, including the cooks and gardeners. In most cases, he even knew their children's names - and he asked after them frequently and sincerely.

But as 9 o'clock approached, the Justice's attitude and demeanor changed radically. As he shifted into work mode, Blackmun became unapproachable, a man consumed by a mantle of professional duty that fairly seemed to crush him.

Indeed, Blackmun was so loath to waste a moment of the working day, that he was the only Justice when I was clerking who refused to entertain lunch invitations from clerks in other chambers. I remember many occasions when Blackmun was so deeply lost in the intensity of his own thoughts that he passed me in the hall without even a nod of recognition.

Blackmun's Work Style: Reclusive and Solitary

When working in his office, Blackmun almost uniformly kept his door closed, and his two fantastic secretaries strictly enforced his privacy. They knew a dozen friendly ways to communicate his unwavering desire not to be disturbed.

And as if this sequestering was not sufficient, on most days Blackmun would retreat to the Justices' Library. The Library was a room on the Court's second floor that had been designed for the communal use of all the justices. But in fact, over the years, Blackmun somehow had managed to appropriate it for himself.

Truth be told, Blackmun was extraordinarily beloved by his clerks. But in many other quarters (as reflected, for example, in John Jeffries's biography of Justice Lewis Powell) Blackmun was viewed as a prickly pear.

Blackmun's reclusiveness was also compounded, especially in his later years, by a political isolation on the Court. Once Justices William Brennan and Thurgood Marshall had left the Court, Blackmun was left alone to champion a brand of liberal jurisprudence that many of the other justices, led by Justice Antonin Scalia, held in thinly disguised contempt.

The Significance of Blackmun's Papers: Nuggets that Speak Volumes

It should come as little surprise, then, that Blackmun's papers - at least those of the 500,000 documents that have so far seen the light of day -- reflect his relatively lonely life inside the Court. A smattering of personal notes to other justices have now surfaced. But what is remarkable is about them is not that they exist, but that they are so few. That's especially striking because Blackmun occupied a seat on the Court for 24 years, and seems to have kept almost every piece of paper that crossed his desk.

That said, Blackmun's papers have already yielded some fascinating nuggets. These bits and pieces provide additional evidence for a proposition the truth of which should already be quite clear: Decisional dynamics within the Court do not exactly comport with either popular conception, or with the image projected publicly by the justices themselves.

A Case In Point: The 5-4 Decision To Reaffirm the Heart of Roe v. Wade

Consider, for example, some of the key documents contained in Blackmun's file on the Court's consideration of Planned Parenthood v. Casey. This was the 1992 case that many Court watchers thought would result in the overruling of Roe v. Wade -- Blackmun's most famous opinion. Instead, however, in Casey the Court (by a 5-4 vote) re-affirmed Roe's central precepts.

Previous books about the Court (including my own) had already revealed that the surprising result in Casey stemmed from an 11th-hour change of heart on the part of Justice Anthony Kennedy. Only three years earlier, Kennedy had put himself on record within the Court as calling for Roe to be overruled. But despite Kennedy's previously stated views, Justices Sandra Day O'Connor and David Souter persuaded him to forge a centrist coalition that was committed to a compromise position on Roe - one that re-affirmed its basic holding, but also permitted somewhat greater state regulation of abortion.

Along with Blackmun and Justice John Paul Stevens, the three formed a 5-4 majority. (In dissent were Chief Justice Rehnquist and Justices White, Scalia, and Thomas, who wanted Roe explicitly overruled.)

Justice Kennedy's switch in position has rightly been given prominent coverage in the stories based on Blackmun's papers. The papers contain, for example, the handwritten note that Kennedy sent Blackmun presaging a conversation at which Kennedy would tell Blackmun that he had switched his swing vote.

The note itself is suggestive. One might have thought that these two Justices, whose offices had been right next to each other for six years, would have developed a comfortable working relationship, or at least a relaxed way of communicating. But Kennedy's note - an awkward and stilted request for a face-to-face conversation - is the kind of note one would write to a virtual stranger.

Dated many weeks after the justices took their initial vote in Casey, Kennedy's missive also implicitly confirms that he, O'Connor, and Souter kept their joint enterprise a secret from the rest of the Court until they were far along in their opinion writing. Why these justices felt it necessary to spring a Roe-saving surprise on their colleagues is a mystery well worth exploring. But it does not seem too much to say, at this juncture, that clandestine coalition-building within a small, supposedly deliberative body is not a hallmark of institutional health.

Blackmun's Suspicions that Rehnquist and O'Connor Were Partisan

In any event, Justice Kennedy's note to Blackmun is not nearly as troubling as some other materials in Blackmun's Casey file. In particular, two notes from Justice Blackmun's law clerks to the Justice suggest a deep suspicion on Justice Blackmun's part that Chief Justice William Rehnquist and Justice O'Connor had injected partisan political considerations into the Court's handling of Casey.

The issue was one of timing. The Justices first took up the threshold question of whether they would grant review in Casey on January 9, 1992. Abortion rights advocates had rushed the case to the Court because they wanted to make sure that, if the Court was going to overturn Roe, it did so before the Court's summer recess - thereby making the Court's decision a political issue in the fall presidential election. (It was generally believed that a Court decision overturning Roe would galvanize liberal voters, and thus help Bill Clinton and the Democrats).

Even with Planned Parenthood's expedited filing at the Court, Casey (assuming that the justices granted review) was going to be a tight fit on the Court's spring schedule. Unless the Justices voted to hear the case by the end of January, its consideration would spill over into the next term - meaning that the Court's decision would be delayed until long after the November 1992 election.

The justices like to say publicly that such political considerations play no part in the Court's deliberations. As some may recall, Justice Clarence Thomas, right after the Court decided Bush v. Gore, denied even hearing a political word around the justices' conference table in all the time he'd been at the Court.

As it turns out, however, there were plenty of political words spoken when the Court considered whether and when to take up Casey.

As reflected in the notes from Justice Blackmun's clerks, Chief Justice Rehnquist and Justice O'Connor both spoke up at the January 9 conference expressing their concern about the political effect of deciding Casey before the 1992 election. And at the January 9 conference they succeeded in putting off the vote on whether the Court would grant review in Casey.

This delay - which was interpreted as having partisan motives --created extraordinary consternation in Justice Blackmun's chambers. So much so that, before the justices' next conference on January 16, all five of his clerks signed a note to Blackmun urging him to insist that the Court take an immediate vote on whether to hear Casey. They also urged that if review was indeed granted, that the case be scheduled (as it was) for decision in the spring.

The Missing Bush v. Gore Papers: A Fascinating Lacuna

These intimations regarding the intertwining of partisan thinking and judicial decision-making expose the real tragedy of the Blackmun papers -- namely, that they do not extend to the year 2000 and the Court's decision in Bush v. Gore.

Sadly, we may never know the extent to which the five conservative Justices let partisan thinking color their legal analysis of the Florida recount. Or perhaps we'll get lucky and, someday, another justice will open his or her papers, and they will prove even more revealing than the important new materials the public now possesses as a result of Justice Blackmun's laudable decision to allow the American public to see how this powerful branch of their government actually works.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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