X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
U.S. Supreme Court watchers gained access to a cornucopia of inside information when the Library of Congress released the exhaustively detailed papers of Justice Harry Blackmun in March. The justice, who died in 1999, directed that his papers be made public on the fifth anniversary of his death. Initial forays into the files indicated 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 antiabortion ruling to one that upheld Roe v. Wade and changed Lee v. Weisman from a decision upholding middle school graduation prayers into one that found that such prayers violate the First Amendment’s establishment clause. When the archive was opened, Blackmun’s file on The Brethren was a popular destination for scholars and reporters because of the continuing mystery over who gave the book’s authors behind-the-scenes insights into the Court under the late chief justice Warren Burger. The book caused a furor, and Burger, among others, complained that clerks and justices had violated their obligation to keep deliberations private. Blackmun himself 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. Several former clerks contacted Blackmun after being approached by the authors in 1978 to find out if Blackmun wanted them to decline. But the justice sent word that he approved of their talking with the authors. Armstrong confirms that Blackmun spoke with him. “[Woodward and I] divided up the justices, and he was one of mine,” he says. But Armstrong, now executive director of the D.C.-based Information Trust, says, “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 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 Planned Parenthood v. Casey, Kennedy’s turnabout saved Roe v. Wade � Blackmun’s most famous opinion, which declared in 1973 that women have the right to abortions. When the justices took their first vote in a private conference in 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. Stephanie Dangel, the Blackmun clerk handling the case for him, wrote a memo to Blackmun. “Given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the reelection of President [George] Bush and the appointment of another nominee from whom the far right will be sure to exact a promise to overrule Roe,” Dangel wrote. Her prophecy, however, proved wrong. Bush was defeated by Bill Clinton in November 1992, and Clinton appointed two justices � Ruth Bader Ginsburg and Stephen Breyer � who have supported Roe. In another memo on the Casey case, Dangel reports 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 mentions 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 were running high. “There’s no avoiding the fact that the Court had become politicized on the issue.” She adds: “The vast majority of the memos are pretty dry. These do stand out. I have mixed feelings about them coming out.” One of the richest files contains notes passed between justices while they were presiding. “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. 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 1/2 rather mediocre lawyers in the legal office � one could do it alone, but there is not enough for two.” 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.” A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel. 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.