Thank you for sharing!

Your article was successfully shared with the contacts you provided.
By March 5, the initial flow of journalists and scholars eager to view the late Justice Harry Blackmun’s papers at the Library of Congress had slowed to a trickle. The special pressroom the library had set up for the unveiling a day earlier was empty, and only a few researchers in the manuscript reading room were requesting Blackmun files. But the quick drop-off does nothing to diminish the long-term importance of the storehouse of information about the Court’s cases and its everyday life contained in Blackmun’s exhaustively detailed papers. Now the more in-depth study that Blackmun’s papers invite will get under way on a range of subjects. Initial forays into the files indicate that Blackmun, who retired from the Court in 1994 after 24 years as a justice, cooperated extensively with the authors of the controversial 1979 book The Brethren and that the Court in his time was the scene of numerous vote changes that altered the outcome of major cases. In 1992, shifts by Justice Anthony Kennedy turned Planned Parenthood v. Casey from an anti-abortion ruling to one that upheld Roe v. Wade and changed Lee v. Weisman from a decision that upheld middle school graduation prayers into one that found such prayers violate the First Amendment’s establishment clause. Kennedy’s switch in Casey was first reported soon after the ruling was issued, but the disclosure on the religion case appears fresh. Among the more than 530,000 documents released March 4 was Blackmun’s FBI file, which details the investigation into the 1985 episode in which a bullet crashed through a window in Blackmun’s Arlington, Va., apartment. The Federal Bureau of Investigation concluded that the bullet had been fired from across the Potomac River in Georgetown, and that its downward trajectory made the chances it was aimed at Blackmun specifically “very remote.” Scholars, journalists, and “line sitters” began waiting outside the Library of Congress Madison Building at 6 a.m., and by the time the doors opened at 8:30, more than 30 people were waiting for access. Blackmun, who died in 1999, directed that his papers be made public on the fifth anniversary of his death. The New York Times and National Public Radio were given exclusive early access, and their reports began appearing Thursday morning. But that did not discourage other journalists from mining the files for items of interest. Minneapolis Star-Tribune reporter Rob Hotakainen arrived at 7 a.m. in search of “Minnesota tidbits” from the justice who lived most of his early life in St. Paul. He was not disappointed. Blackmun’s file on The Brethren was a popular destination because of the continuing mystery over who offered the book’s authors behind-the-scenes insights into the Court under late Chief Justice Warren Burger. The book caused a furor, and Burger among others complained that clerks and justices had revealed self-serving secrets in violation of their obligations to keep Court deliberations private. Blackmun himself has pinpointed the late Justice Potter Stewart as the primary source for authors Bob Woodward and Scott Armstrong, but Blackmun’s files confirm that he, too, was a willing source. Memos in the file indicate that Blackmun spoke more than once with Armstrong and encouraged former clerks to do the same — though through his secretary he warned one clerk that “he should not underestimate Scott Armstrong as he is a very smart reporter.” Several former clerks contacted Blackmun after being approached by the authors in 1978 to find out if Blackmun wanted them to decline. But Blackmun sent word that he approved of their talking with the authors. In one memo, an unnamed aide to Blackmun reported calling one of the justice’s clerks to say that “the other clerks have talked to Scott Armstrong as well as the justice himself, and that the justice has no objection to his seeing Mr. Armstrong.” Armstrong last week confirmed that Blackmun spoke with him. “We divided up the justices, and he was one of mine.” But Armstrong, now executive director of the D.C.-based Information Trust, said, “I don’t feel comfortable saying what he did or did not do.” The file on the 1994 case Callins v. Collins, in which Blackmun declared his opposition to the death penalty, offered revealing details of the justice’s decision-making process. Clerks apparently wrote virtually all of the opinion in advance, leaving blank spaces and waiting for the appropriate death penalty case. At one point, the blanks were filled in for Texas death row prisoner Gary Graham, whose case had become a cause c�l�bre. But it was ultimately filed in a more routine case as a dissent from the denial of review for another Texas inmate, Bruce Callins. “From this day forward, I no longer shall tinker with the machinery of death,” Blackmun’s dissent declared. In Casey, Kennedy’s turnabout saved Roe v. Wade — Blackmun’s most famous opinion, declaring in 1973 that women have the right to abortions. When the justices took their first vote in a private conference on Casey, Kennedy voted to overturn Roe. But he later switched and joined Justices Sandra Day O’Connor and David Souter in a “troika” writing a joint opinion that preserved the abortion right with some restrictions. But in Blackmun’s chambers, the development was viewed with suspicion by at least one clerk, Stephanie Dangel, who was handling the case for him. “Given the middle ground that they have taken,” she wrote Blackmun, “I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of President Bush and the appointment of another nominee from whom the far right will be sure to exact a promise to overrule Roe.“ President George H.W. Bush was defeated by Bill Clinton in November 1992, and Clinton appointed two justices — Ruth Bader Ginsburg and Stephen Breyer — who support Roe. In another memo on Casey, Dangel reported to Blackmun that Kennedy objected to Blackmun’s reference to Chief Justice William Rehnquist in his concurrence as “the chief,” rather than “chief justice.” Wrote Dangel: “While I have my doubts as to whether he deserves to be called ‘justice’ on this one, I guess there’s no need to ruffle feathers needlessly.” In the final version of Blackmun’s concurrence, Rehnquist is referred to as the chief justice. Still another memo by Dangel referred to the fact that “evil Nino” had not yet circulated his dissent in the case — referring to Justice Antonin Scalia. Dangel, now a Pittsburgh-area lawyer and writer, says that at the time emotions at the Court were running high. “There’s no avoiding the fact that the Court had become politicized on the issue.” She apologizes for the references to Rehnquist and Scalia, stressing that they were meant in jest and did not in any way reflect Blackmun’s views. “I considered it part of my job to make this true American hero smile once in awhile, even if that required a few off-color characterizations of the opposition. My only regret is that these private jokes are now open to public view.” The file on Casey also contains a memo from Rehnquist cautioning against leaks to the press about the Court’s deliberations. Citing a Newsweek article that quoted unnamed sources and clerks in reporting that deliberations in the case had bogged down, Rehnquist reminded clerks of their code of conduct, which dictates “as little communication as possible” between clerks and the press. “In the case of any matter pending before the Court, the least possible communication is none at all,” Rehnquist wrote, underlining the last three words. In March 1993, according to the Blackmun files, Rehnquist circulated a stern memo to all justices reporting that dozens of discarded clerk memoranda on pending cases had been found in Court recycling bins. “The Court’s recycling program should not be used to dispose of any sensitive material,” Rehnquist admonished. ” ‘Burn bags’ should be used for all material of this sort.” One of the richest resources in the files was one containing notes sent between justices while on the bench. “Harry, the Court took the wrong turn today in the Free Exercise case in my view. It pains me,” Justice O’Connor wrote on April 17, 1990, the day the Court handed down Employment Division v. Smith, which said Oregon could punish members of a Native American church who used peyote in religious rituals. O’Connor concurred, but wrote separately, and Blackmun wrote a dissent. A 1992 note from Justice Byron White was a sarcastic jab at fellow justices who pounce on lawyers with early and frequent questions during oral argument: “Harry — Five minutes went by before the first question. That’s a record, at least for the last few years.” In 1993, Blackmun sent a note to Chief Justice Rehnquist remarking that the Court’s legal counsel must not have much work to do, because he had been in the Court watching all the oral arguments that week. Rehnquist’s tart reply: “There is probably enough work for 1-� rather mediocre lawyers in the legal office — one could do it alone, but there is not enough for two.” Currently two lawyers work in the Court’s legal office. The context is not clear, but in 1975, Rehnquist — then an associate justice — sent Blackmun a bawdy limerick: “There was a young girl from Cape Cod, who thought little kids came from God. But it wasn’t the Almighty who lifted her nighty. It was Roger the Lodger by God.” Blackmun also wrote notes to himself during oral argument, such as the time in 1990 when Rehnquist from the bench corrected a lawyer who had used the incorrect word “irregardless.” Blackmun’s verdict on Rehnquist: “Judicial peevishness.” Legal Times associate opinion editor Evan P. Schultz contributed to this report.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.