Blackmun papers reveal his, court's evolution

Library of Congress opens documents to public today

March 04, 2004|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - In the spring of 1992, Justice Harry A. Blackmun's struggle to preserve the right to abortion he had articulated for the Supreme Court two decades earlier was headed for bitter failure.

Five justices had voted in a closed-door conference to uphold provisions in a restrictive Pennsylvania abortion law. Roe vs. Wade was in peril.

Then, suddenly, everything changed. A letter from Justice Anthony M. Kennedy, whom Blackmun had long since written off as a potential ally, arrived at his chambers.

"Dear Harry," the letter began. "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood vs. Casey, and at least part of what I say should come as welcome news."

It would be another month before the nation learned the news that Kennedy delivered in person the next day: a trio of Republican-appointed justices had secretly formed a team to preserve the right to abortion. After the meeting, Blackmun picked up a pink memo pad and scribbled, "Roe sound."

The news was a gift that brought vindication, and not only because Blackmun knew he would be remembered for the opinion he had written at the start of his Supreme Court career. In ways he could not have predicted, the experience of writing and then defending Roe vs. Wade had changed him, launching the middle-age Nixon appointee on a journey that now found him, at 83 and nearing retirement, the most liberal member of the Supreme Court.

Central figure

He had been a central figure at a time of transition, someone who first curbed the liberalism lingering from the Warren court, then acted as a brake on the rising conservative forces of the Burger and Rehnquist courts.

It was a remarkable evolution, the outline of which is apparent from the record of votes and opinions in the thousands of cases that came before the court during Blamun's 24-year tenure. But Blackmun left behind much more. He had collected more than a half-million letters, notes, memos and journals that provide a much fuller portrait of him and offer rare insights into the life of the court during the last quarter of the 20th century.

After retiring in 1994, he gave the papers to the Library of Congress on the condition that they remain closed for five years after his death, a restriction that expires today. That unusually short period allows the public to learn his views of colleagues still on the bench, something justices do not often permit. The New York Times got an advance look at the documents.

They disclose behind-the-scenes shifts during decision-making and the origins of important rulings, including Roe v. Wade. The papers show the disarray of the Burger court and the relative calm of the Rehnquist court. They tell a very human story: how the long friendship between Warren Burger and Harry Blackmun could not survive the caldron of their joint service on the nation's highest court.

And they also help explain one man's journey. Blackmun did not simply stand still while the court around him became more conservative. His movement across the court's ideological spectrum was not just relative, but absolute; while the court went in one direction, he went in another.

A dissenter from the court's 1972 decision that struck down all existing death penalty laws, he ended his career in 1994 with a ringing denunciation of capital punishment that left him as the court's sole categorical dissenter on the issue. His papers contain the record of a painful episode in his pre-Supreme Court judicial career, when he yielded to collegial pressure and withdrew remarks indicating his personal opposition to the death penalty.

Blackmun's regret was lasting; his parting statement on the issue - "From this day forward, I no longer shall tinker with the machinery of death" - may have been a long-delayed expiation.

At first a skeptical bystander while the court wrestled with whether to expand constitutional protection for women's rights - in his private notes, he disparaged a brief filed in a sex-discrimination case by Ruth Bader Ginsburg as "filled with emotion" - he eventually enlisted in the cause and expressed the hope that his work had contributed to "the progress of the emancipation of women."

Although Blackmun kept a journal of sorts and compiled sketchy notes for a memoir, which are included in his papers, he never settled on a narrative that explained his own life. "I feel as though I have been a cork on a fast-moving stream propelled by forces over which I had little control," he wrote in notes for a speech at the Aspen Institute in Colorado after his retirement in 1994.

Yet in that same draft, he also suggested that in grappling with the ideas that came his way, he had been something more than a passive participant in the education of Harry Blackmun. "There is a broad education to be gained in constitutional philosophy when one comes to the Supreme Court," he wrote.

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