Blackmun's Papers

It's not often that deceased Supreme Court justices make the news, but today is one of those days. Five long years after his death, Justice Harry Blackmun's much-anticipated private papers have been unveiled:

A vast new trove of material on the hidden workings of the U.S. Supreme Court becomes available today as the Library of Congress opens the papers of former Justice Harry A. Blackmun, covering 24 years of internal court deliberation on issues such as capital punishment, school prayer and especially abortion.

They provide a striking self-portrait of the author of Roe v. Wade, the 1973 opinion legalizing abortion, in which Blackmun is at first oblivious to its potential controversy ("I didn't appreciate it," he says) and then hounded by it for years, buried in mail pro and con, picketed at a speech, wishing it would recede but simultaneously defending it from successive challenges.

Some of the most interesting documents have been put online by the Library of Congress. Though the full archives won't be available until tomorrow, exclusive previews were given to NPR and The New York Times, and Linda Greenhouse at the Times has a long story on what the papers tell us about Harry Blackmun:

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 also tell a very human story: how the long friendship between Warren Burger and Harry Blackmun could not survive the cauldron of their joint service on the nation's highest court.

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

Greenhouse goes on to detail Blackmun's movement on capital punishment and the catalyst that was Roe v. Wade. There is no worthwhile way to summarize or excerpt, and it really is an article worth reading from start to finish.

The Times also has a story detailing what can be learned from the papers regarding other justices, like in this exchange over abortion between Justices Kennedy and Blackmun:

Justice Kennedy then sent Justice Blackmun a handwritten letter. "After much hesitation, I decided it would be best for our collegial relation and, I hope, mutual respect to tell you that I harbor deep resentment at your paragraph in the dissenting opinion," he said. "You say my hyperbole is to incite an inflamed public. To write with that purpose would be a violation of my judicial duty. I am still struggling with the whole abortion issue and thought it proper to convey this in what I wrote."

Justice Blackmun replied the next day. "In the thought that it will help to assuage your feelings," he said, he would limit himself to calling the opinion inflammatory in "result" rather than in its purpose "This should help, but, of course, I do not know whether it will," he concluded.

Or this admission of frustration by Scalia at the end of the 95/96 term, when then-retired Justice Blackmun sent Scalia a note of encouragement:

Replied Justice Scalia: "You are right that I am more discouraged this year than I have been at the end of any of my previous nine terms up here," Justice Scalia replied. "I am beginning to repeat myself and don't see much use in it any more. I hope I will feel better in the fall. A cheering note from an old colleague — one whom, God knows, I was not always on the same side with — sure does help."

Needless to say, all of these stories are worth reading in their entirety. This truly is a treasure trove.