The ghost of Supreme Court Justice Harry A. Blackmun will be back in the news this week, five years after his death and more than 30 years after he wrote the momentous and still-disputed Roe vs. Wade opinion that legalized abortion.
His reputation in life was controversial. Liberals saw him as a conservative Midwestern Republican who grew in his job to become a champion of women’s rights and a reborn foe of the death penalty. Conservatives saw him as a weak and indecisive judge who was unnerved by the criticism he received for the abortion decision.
Blackmun left behind much for friends and foes to pore over, and deals have been struck to let some people go first.
“He was a complete pack rat. He kept everything -- drafts, memos, letters and his conference notes,” said Pamela S. Karlan, a Stanford law professor and a former clerk to Blackmun, who served on the high court from 1970 to 1994.
On Thursday, the anniversary of his death, the Library of Congress will open Blackmun’s papers to the public -- all 1,576 boxes full.
Historians and legal scholars are eager to examine the papers, looking for clues to explain Blackmun’s shift from right to left during his court career. President Richard M. Nixon nominated him as a conservative, law-and-order judge. By the time of his retirement, he was the court’s most liberal justice.
It is a familiar story, and a distressing one for conservatives. Since Nixon’s election in 1968, Republican presidents have named 10 justices to the Supreme Court while Democrats have named two. Yet the court as a whole has disappointed conservatives, largely because Blackmun, Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter proved more liberal on social issues than the Republican presidents who appointed them.
But the main clue to Blackmun’s shift may be as simple as the Roe vs. Wade opinion itself.
“The explanation for his leftward evolution is the happenstance of his being assigned to write Roe,” said David Garrow, a court historian at Emory University. “It was not just the criticism and the hate mail he received, but also thank-you letters he received from women. Over time, he came to think he had done a great thing for women, and it made him much more attuned to the cause of protecting individual rights.”
“His career would have been completely different had that opinion been assigned to someone else,” said John C. Jeffries, the dean of the University of Virginia law school and a biographer of Justice Lewis F. Powell, a Nixon appointee.
Blackmun had been on the court less than two years when the justices took up a challenge to a Texas law that made all abortions a crime. When the justices voted 7-2 to strike down the law, Chief Justice Warren E. Burger selected his fellow Minnesotan to write the opinion because of Blackmun’s background. Before becoming a judge, he had been the general counsel to the Mayo Clinic in Rochester, Minn.
“He had spent much of his time working around doctors,” Karlan, the Stanford professor, said. “He viewed [abortion] as a medical matter. It was about the doctor-patient relationship. He also had the old-style Republican view that this wasn’t the government’s business.”
Just as the Roe vs. Wade ruling has divided the nation, so did it serve as a divide in Blackmun’s career. His clerks said the justice spent hours reading hate mail. By the late 1970s, Blackmun had split away from the conservative Burger, a boyhood friend from St. Paul, and aligned himself with the liberal Justice William J. Brennan, an Eisenhower appointee.
“He took so much heat from the right,” said Dennis J. Hutchinson, a University of Chicago law professor and biographer of Justice Byron White. “And the women’s rights and liberals groups lionized him. That would have bounced off a lot of justices -- White, Powell, [Antonin] Scalia, for example. But Blackmun had a lot of insecurities, and he took slights very personally.”
Among court scholars, Blackmun was not known for careful legal analysis or persuasive opinions. He sometimes kept his colleagues waiting while he made up his mind. In 1978, for example, his eight colleagues, evenly divided, bided their time for five months while Blackmun decided how to vote in the Bakke affirmative action case, according to Powell’s biographer.
Blackmun also had a fondness for melodramatic pronouncements. In 1989, the court was trying to decide whether county child care workers could be held liable if they failed to prevent a parent from abusing a child. The case arose when a boy named Joshua De Shaney had been nearly beaten to death by his father. Blackmun’s only comment during the oral argument was widely reported: “Poor Joshua!”
Some court historians say Blackmun’s papers may contain little news, since the previously released papers of Justices Thurgood Marshall and Powell cover the same period. “I would be surprised if there’s anything that dramatically changes our thinking about him,” said Mark V. Tushnet, a law professor at Georgetown University and a biographer of Marshall.
Some historians said they were troubled that Blackmun’s law clerks gave advance access to the documents to Linda Greenhouse of the New York Times and Nina Totenberg of National Public Radio. They were given two months of advance access to the files, and their reports will begin Thursday.
Harold Koh, a Yale law professor and a former Blackmun clerk, arranged the deal with the two reporters with the permission of Sally Blackmun, the justice’s daughter. Koh also gave the “News Hour with Jim Lehrer” advance right to broadcast oral-history interviews with Blackmun conducted by Koh.
“This is not an effort to manage the story,” Koh said of the special arrangements. “We didn’t want someone to grab one piece of paper and make that the story. You need someone who can introduce this collection to the world in a way that promotes genuine public understanding of what this collection means.”
That explanation has not impressed several historians who have worked on past collections. “This is post-mortem spin control and the closest thing to an in-house press release,” said Hutchinson of the University of Chicago. “It anoints one person, or two, and says their version is authoritative and trustworthy. I think it’s outrageous.”
“This is an attempt to manage the coverage, despite what Koh says,” said Garrow, who wrote a history of the abortion rulings. “He wants a gentle and friendly front page in the New York Times. And he also wants NPR and the ‘News Hour’ to think well of Harold Koh.”