A rare look behind the Supreme Court's veil

Blackmun's notes take us from Roe v. Wade to friend/foe Burger

Harry A. Blackmun is best known as the US Supreme Court justice who authored Roe v. Wade, the landmark decision that established a constitutional right to abortion.

Six other justices joined his majority 1973 opinion. Yet it is Justice Blackmun who is praised or pilloried for what remains one of the most controversial judicial rulings in American history.

There is a reason for it. Harry Blackmun was a sensitive man. Some might even say thin-skinned. And when the inevitable attacks on Roe came and then kept coming, Justice Blackmun took it personally and responded to defend the decision.

Indeed, it became his decision. His embrace and vigorous defense of Roe goes a long way in explaining how a moderate-conservative Republican appointee of President Richard Nixon could end his judicial career 24 years later as one of the most liberal voices on the high court and a darling of the legal left.

"Becoming Justice Blackmun," by Linda Greenhouse, tells two intertwined stories. One involves the lifelong friendship and eventual falling out between Blackmun and Warren Burger, who was Supreme Court chief justice from 1969 to 1986. The second story is of Blackmun's judicial transformation.

The book, written by The New York Times Supreme Court correspondent, is no conventional biography. Instead, it is an engaging journalistic examination of the paper trail left behind by a person who always seemed to be jotting something down.

Blackmun, who died in 1999, bequeathed to the Library of Congress a half-million documents and other items including both personal and professional papers. They occupy more than 600 feet of shelf space and range from childhood diaries and personal letters to confidential correspondence with his law clerks and even other justices.

The Blackmun papers offer a window into one of the nation's most secretive institutions. When the nine justices sit together in conference to consider pending cases, no one else is permitted in the room and discussions are considered confidential. Blackmun's papers include his notes from the conferences he attended during his years on the high court from 1970 to 1994.

"Becoming Justice Blackmun" focuses primarily on Blackmun's work on abortion, the death penalty, and gender discrimination.

It provides new details on how Roe v. Wade became the law of the land. It includes an account of the behind-the-scenes maneuvers that helped prevent Roe from being overturned in the 1992 case Planned Parenthood v. Casey.

And it offers insight into the relationship between Blackmun and his law clerks, which has recently become a source of controversy. Legal historian David Garrow charged in Legal Affairs magazine that Blackmun's papers suggest that the justice granted his law clerks excessively wide latitude over his official work. Garrow calls it "a scandalous abdication of judicial responsibility."

Greenhouse recounts many of the same examples of Blackmun law clerks crafting key parts of landmark decisions, including Roe; suggesting legal strategies; and injecting political calculations into the court's work. But her account is less critical than Garrow's aggressive approach.

Central to "Becoming Justice Blackmun" is the complex relationship between Blackmun and Warren Burger.

The story line is too improbable for a novel. And the term best friends doesn't even begin to explain it.

They met in kindergarten in a working-class neighborhood of St. Paul, Minn. They lived six blocks from each other. Both were excellent students. Both studied law. Blackmun was best man at Burger's wedding. And both served as federal appeals court judges. Burger was named chief justice in 1969. Less than a year later, President Nixon - at Burger's urging - appointed Blackmun to the high court.

At first the two friends voted alike as justices, prompting the press to refer to them as the "Minnesota Twins." Blackmun resented suggestions he was a Burger clone, and their friendship began to slowly unravel over ideological divergence and perceived personal slights.

Just as she documents the thriving relationship between the two younger men earlier through their correspondence, Greenhouse relies on their later correspondence - and work at the high court - to illustrate their gradual estrangement.

The final break came as a result of a 1986 Florida death-penalty case called Darden v. Wainwright. In a dissent, Blackmun criticized Burger as being impatient that Darden's death penalty appeals were taking too long. Burger countered that he and the court's majority had been more than careful and patient in the Darden case. Blackmun responded with a threat. If Burger published his concurrence, Blackmun would add a footnote to his dissent criticizing Burger even more directly.

The exchange is a vivid illustration of unprofessional conduct by two individuals who were entrusted to put aside their personal beliefs and petty differences in service to the nation. Of course, if justices - and other high government officials - always behaved themselves, history wouldn't be nearly as interesting.

Warren Richey is a Monitor staff writer covering the Supreme Court.

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