The natural evolution of a high court liberal

On a shelf in his office, Justice Harry Blackmun kept a small swatch of fabric suspended in a clear plastic cube. The cloth had a hole in it, a memento from the day someone sent a bullet through the window of Blackmun’s apartment, striking a reading chair.

It was not hard to guess the meaning of this morbid keepsake. From Jan. 22, 1973, the day the U.S. Supreme Court handed down Blackmun’s opinion in Roe vs. Wade, he became a lightning rod for vicious criticism and public protest -- and the bullet-skewered swatch symbolized the enormous and potentially dangerous controversy that followed him for the rest of his life.

For Linda Greenhouse, the high court reporter for the New York Times, the effect of Roe vs. Wade on Blackmun’s judicial career cannot be overstated. Indeed, the main thesis of her highly readable and interesting mini-biography, “Becoming Justice Blackmun,” is that Blackmun’s dogged defense of Roe against two decades of conservative assault explains his remarkable transformation from a supposedly reliable ally of his closest childhood friend, conservative Chief Justice Warren Burger, into an “anti-Burger” and a powerful advocate for the rights of women, minorities and the underprivileged.

Greenhouse’s book is the first to take full advantage of Blackmun’s extraordinarily voluminous private papers, which reveal a lifetime of his reflections on matters as elevated as the court’s constitutional purpose and as mundane as his continued musings on a boyhood appendectomy. Greenhouse has mined this material brilliantly to create a moving narrative of the friendships lost and the ideals discovered in Blackmun’s sometimes joyless but always purposeful life.

Born in 1908, Blackmun grew up in St. Paul, Minn., amid tragedy and poverty. His parents had lost a son to pneumonia the year before Harry’s birth and lost another child a few years later. Blackmun’s father, a seller of produce, eventually saw his business fail, and struggled from job to job thereafter.

From these grim surroundings Blackmun emerged introspective, insecure and profoundly determined to leave some mark on the world. He had talent; he won a scholarship to Harvard, from which he graduated summa cum laude in mathematics. And he had grit, persevering at Harvard despite loneliness and nagging financial hardship that left him working his way through college.

Harvard Law School proved tougher academically, a fact that reinforced Blackmun’s tendency to self doubt. But after early struggles he rose two-thirds of the way up the class rankings and into a judicial clerkship with John Sanborn, a recently appointed federal Court of Appeals judge in Minnesota.

As Greenhouse recounts, during this career-shaping period Blackmun sought and received extraordinary encouragement from Burger, whom he had known since kindergarten and who was embarking on his own career in law and politics. At every Blackmun low point, there was Burger, bucking up his friend with praise and fellowship, which Blackmun returned with gratitude and kindnesses of his own. Their respective careers flourished. But as Greenhouse cleverly illustrates, their professional paths diverged in ways that would ultimately lead to a friendship-shattering collision inside the Supreme Court.

Burger headed to Washington under President Eisenhower, who appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, a hotbed of judicial liberalism. Through the 1960s, Burger grew angry and despondent at his political isolation within the appeals court, and his originally moderate conservatism hardened in opposition to his judicial peers.

Blackmun went through no such metamorphosis. After a stint in private practice, he spent nine happy years as general counsel to the Mayo Clinic before his old boss, Judge Sanborn, arranged for Blackmun to replace him on the U.S. Court of Appeals for the 8th Circuit. In contrast with that of Burger, Blackmun’s tenure as an appellate judge was marked by a steady, erudite moderation that reflected his methodical, nonideological approach.

Blackmun’s personal views, moreover, were sometimes more liberal than his judicial opinions. As Greenhouse notes, Blackmun did not think it his place as an appellate judge to innovate much, but his private beliefs were progressive on a number of issues, including the elimination of racial discrimination and the banning of capital punishment.

It is hard to know whether the two friends recognized how far apart they had grown. Blackmun often gave speeches describing Burger as far more liberal than he had become, while Burger’s letters seem to assume that Blackmun shared his increasingly bitter and sarcastic assessment of the liberal judges (including Supreme Court justices) who were rapidly expanding civil rights and civil liberties.

But there was no avoiding the discrepancy once Nixon named them both to the Supreme Court: first, Burger, in 1969, as a staunch law-and-order conservative; then Blackmun, in 1970, when Burger put his name forward after Clement Haynsworth and G. Harrold Carswell failed to gain confirmation by the Senate. Within a few years of Blackmun’s appointment, he was called on to consider not only the nation-rending issue of abortion but also the death penalty, affirmative action and the constitutional crisis surrounding Watergate and Nixon’s attempt to avoid turning over his incriminating tapes.

Almost every case took a toll on a friendship whose timbers had rotted beneath the waterline. Blackmun resented Burger’s halfhearted support for his efforts in Roe vs. Wade, split from Burger over important issues such as appropriate remedies for the nation’s racist past and came to doubt Burger’s legal acumen. Burger tallied his own slights, including Blackmun’s joining an attempt to ghostwrite the court’s landmark opinion in the Nixon tapes case behind the chief justice’s back.

As became increasingly obvious, the two men had aged into virtual opposites. Burger came to Washington, bought a country estate and put on airs. Blackmun bought a small apartment, drove a VW bug and shunned the D.C. social circuit. In the court’s pressure-cooker environment, such differences in values and temperament are exposed and magnified every day, as case after case requires each of the justices to apply both legal reasoning and a measure of moral judgment to the great issues of the day. A once firm friendship turned, not so gradually, to enmity.

Part of this, Greenhouse suggests, must be attributed to Blackmun’s insecurities. He bristled under criticism and tended to dig in his heels in response. Nowhere was this more true than with Roe, a decision that he defended aggressively to the day of his retirement.

That said, however, Greenhouse misses some elements in the Blackmun equation when she sums up his tenure by declaring that “in defending his legacy, he created his legacy” and thus “became Justice Harry Blackmun.” To be sure, the defense of his decision in Roe vs. Wade worked changes on the man. Whereas the position Blackmun originally staked out in Roe emphasized the right of women and their doctors to decide together whether to abort a fetus, over time Blackmun placed more and more emphasis on the right of the women alone and the importance of reproductive freedom to their equality. Beyond the issue of abortion, moreover, Blackmun’s defense of Roe seemed to empower him to speak out on other issues of civil rights and civil liberties -- including the death penalty, which, on the eve of his retirement, he declared to be irremediably unconstitutional.

But Blackmun’s late-blooming liberalism also reflected many deeply held values he had brought with him to the court that had nothing to do with Roe. As the proud grandson of two soldiers who fought for the Union Army in the Civil War, as a man who had built a small shrine to Abraham Lincoln in his law office, Blackmun had grown up with progressive ideas about racial equality and a deep suspicion of the Southern states’-rights political agenda. Accordingly, it was bred in Blackmun’s bones to take the liberal side on most of the civil rights and states’-rights issues that dominated the court’s agenda over much of his 24-year tenure. Blackmun left a strong mark in these areas of law -- and probably would have done so even if he had never put pen to paper in Roe.

In this sense, Blackmun became Blackmun just by being himself. *