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The opening to the public of former U.S. Supreme Court Justice Harry A. Blackmun’s papers at the Library of Congress has prompted thoughtful and well-researched descriptions of his relationship with Chief Justice Warren C. Burger, his boyhood friend, adult confidant and erstwhile court ally. The descriptions detail how that relationship fractured, and note that the break took place as Blackmun charted a more liberal path in civil rights cases. But as a law clerk for Blackmun during the October 1978-79 term, my impression was that the division between the two men had little to do with ideology. Certainly ideology did not seem to affect his relationships with other justices. To make a comparison, he liked Justice William H. Rehnquist, who differed with him on civil cases but, like Blackmun, enjoyed a good joke. Blackmun was also openly fond of Justice William H. Brennan, who differed with him on criminal cases but who would put his arm around Blackmun, offer his sympathies about the problems of the day, and share with him a bit of Irish political wisdom. Without question, Blackmun and Burger were childhood friends. One night, Blackmun and his wife invited his clerks to dinner at their apartment. He pulled out an old black-and-white photograph and passed it around. It showed the two as boys. They had taken the picture themselves by rigging a string to the camera and then pulling it as they posed. Almost 60 years later, the trick still brought a smile to Blackmun’s face. By 1978, however, Blackmun’s problem with Burger was, quite simply, that he thought Burger was way too big for his britches. He told us Burger had made a lot of money in the booming real property market after he came to the District of Columbia in the 1950s and he lived on an estate in Virginia. Unlike the other justices, he was able to have the court limousine bring him to work each day. Burger had become an afficionado of antiques, fine wines and the English system of barristers, who historically came mostly from that country’s upper class. Burger’s expansive view of himself showed itself inside the court as well as out. The chief justice, like the others, sat behind the bench in a seat especially made for him. But unlike the others, Burger added a thick pad to his seat that made him look taller. Although marble floors had served the court just fine for decades, the chief justice put in a red carpet between the justices’ offices. Blackmun knew all too well, however, that Burger came from a family of extremely modest financial means, did not inherit any antiques, earned his law degree from a night school and had no basis for claiming that he was upper class in anything. The bluntest thing I ever heard Blackmun say about the chief justice was “I remember when the Burgers had a dirt floor in their kitchen.” Blackmun, born to modest circumstances, continued to live a modest life, perhaps to a fault. Blackmun lived in an apartment and never bought a house in Washington. He invested in his children’s education, not in antiques. In general, he stayed away from Washington social life. Typically, with breaks for meals and exercise, he worked from about 9 a.m. to 11 p.m. every weekday, and then worked on weekends as well. Raised a Methodist, he remained methodical. He drove a light blue Volkswagen Beetle, and relished parking it next to the limousine in which the chief justice traveled. In their reactions to their exalted stations in life, the two men could not have been more different. There were other reasons for tension between the two. Burger, as chief justice, had become, in some respects, Blackmun’s boss. Blackmun had been a person from whom Burger sought advice, yet now Burger was in command. Also, they had been childhood friends long separated by life’s progress; yet now they were working together every day in close quarters. And Burger’s pompous attitude and managerial gaffes offended not only Blackmun, but also the other justices. For example, during the term of my clerkship, Burger assigned a majority opinion to a justice who was a dissenter. Perhaps amused, the justice circulated two opinions drafted by two different law clerks, one a summary opinion for the majority and the other a carefully written dissent for himself. The final straw? One other incident stands out in my mind. In March 1979, Blackmun left a conference in which the court had voted on cases. He returned to his chambers, and, as usual, reported to his clerks on how the conference had gone. The court had taken a case, United Steelworkers of America v. Weber, to decide whether Title VII of the 1964 Civil Rights Act permits an employer to use affirmative action to correct work force disparities in certain circumstances. Blackmun reported that the chief justice initially voiced opposition to affirmative action, but then five of the seven voting justices voted against him on condition that a suitable opinion would be drafted. Seeming to overlook the lopsided vote against his views, Burger then asked the justices to do something normally reserved for cases where the votes are evenly split, or close to it. He asked them to withdraw their votes and have the case set down for reargument the following term. The justices voted that proposal down, and so approved certain uses of affirmative action. With obvious disdain for the chief’s clumsy tactics, Blackmun told us: “This may be my final break with the chief justice.” My guess is that this was neither the first nor the last time Blackmun spoke those words. A man prone to occasional melancholy, he was capable, like the rest of us, of saying more than he meant. But the note of despair in his voice rang true. Decades of friendship could not overcome it, and may have even caused it. As Shakespeare reminded us, “For sweetest things turn sourest by their deeds; lilies that fester smell far worse than weeds.” That, in my view, is why the two men were not able to grow old gracefully with each other. Luther T. Munford is a partner in the Jackson, Miss., office of Phelps Dunbar.

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