Features - Writing Justice BlackmunBy Linda Greenhouse, Published on October 31, 2006
I was thrilled to be invited to talk to this audience about writing my book, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey. In fact, for the story of this particular book, there is probably no better audience in the world. That's because more than perhaps any other biography of a figure who died so recently, this is a book based nearly entirely on library research, specifically on the amazing treasure trove of documents that Justice Harry Blackmun left to the Library of Congress. Those items, more than half a million of them, reside today in the 1,585 boxes, taking up more than 600 linear feet on the shelves of the Manuscript Division, that make up the Harry A. Blackmun Collection. It is one of more than 11,000 collections in the Manuscript Division, and one that ever since it was opened to the public on March 4, 2004 has been one of the most constantly and intensively used.
Harry Blackmun retired from the Supreme Court at the end of the 1993-1994 term, after serving 24 years. He lived for five more years and died in March 1999 at the age of 90. Under the terms of his deed of gift to the Library of Congress, his collection was to be opened, without reservation, five years after his death. The former law clerks who were advising him toward the end of his life thought that five years was too soon, or at least wanted to make sure that he realized that it was much sooner than most Supreme Court collections are opened. Most justices specify that all the justices they served with must be retired, or dead, by the time the collection, or sometimes the relevant portions of the collection, are opened. Chief Justice Warren Burger, Harry Blackmun's childhood friend, who predeceased him, put a 30-year delay on the opening of his collection at the College of William and Mary; it will be open in 2026. On the other hand, Justice Thurgood Marshall, as some of you may recall, placed no time limit on his papers, and the Manuscript Division opened them the day after his death, to considerable controversy.
In any event, Justice Blackmun made it clear to his law clerks that he knew exactly what he was doing, and that these were his wishes. He obviously believed that his papers had a story to tell, and he wanted it told in the contemporary world where it would have the most relevance. What he had no way of anticipating, of course, was that his retirement ushered in a period of unprecedented stability in the Supreme Court's membership, and that by the time his papers were opened in 2004, all the justices he had served with were still on the bench. That fortuity made the five years seem even shorter.
Harry Blackmun was known as a pack rat, a saver of every scrap of paper, and so it was widely anticipated among Supreme Court-watchers that his would be one of the notable Supreme Court collections. In 2003, as the March 2004 opening date approached, there was mounting anticipation. The date crossed my mind, too, but I put the thought aside as I contemplated with some dismay what a mob scene it was going to be in the reading room as people jostled and grabbed for the file on Roe v. Wade and other landmark cases of the last quarter of the 20th Century. I was on vacation in mid-summer of 2003 when I received an e-mail from Harold Koh, then a professor at Yale Law School, now its dean, and the former Blackmun law clerk who had conducted an oral history of the justice during the 18 months following his retirement.
It turned out that the Blackmun family was even more concerned than I was with what might happen on the opening day and wanted to find a way to enable his files to be examined in a calmer atmosphere that might better lead to the kind of coherent account that would best fulfill the justice's wish to have his story told. The idea that the family and an advisory committee of law clerks came up with was to provide someone with a two-month window, a head start on the collection, to begin on January 1, 2004, with the only condition being that nothing could be made public until the opening day. By that time, I had been covering the Supreme Court for the New York Times for 26 years. I had known Justice Blackmun and his wife, Dottie, of course. I knew the basic trajectory of his life and career; I had written his obituary for the Times. I had met one of their three daughters, although I was by no means on intimate terms with the family. But they knew my work, and once they had come up with the plan, they decided to invite me.
That was Harold Koh's e-mail. I tracked down my editors on vacation, and we of course decided to proceed. It would involve my being absent from daily Supreme Court coverage for two months, about a month of which, fortunately, was the court's long mid-winter recess. Harold Koh said I could hire a research assistant, and one of the best ideas I ever had about anything was to offer this position to Frank Lorson, who had recently retired as the court's chief deputy clerk. Frank was a friend, with complete discretion and incredible knowledge of the court and its inner workings. It was, as I said, an inspired choice. The idea was that I would write an article or series of articles for the Times that would appear when the collection was opened to the public. In other words, the Times would scoop the world, although of course we didn't know exactly what the story would be. Notice that the notion of a book did not cross anyone's mind, certainly not mine.
For several months, we told nobody and did nothing. Because Harold Koh and his committee felt constrained in even sending us the Library's finding aid, there wasn't much for us to do in preparation. I had never worked in the Manuscript Division. In fact, I had never made use of the Library of Congress except to visit occasional exhibits in the Jefferson Building and to enjoy the view from the Madison Building's top-floor public cafeteria. Other than occasionally visiting the Supreme Court's own library to look at law review articles or bound collections of old briefs, I had really not done anything that might be called library research since I wrote my senior thesis in college. I spent some extra hours at the court going through volumes of United States Reports from the early 1970's, the period before I started covering the court in 1978, to get some sense of which of cases I wasn't familiar with might best repay examination. I bought a lap top computer since, as you know, that is the only way to take extensive notes in the reading room. Frank and I went to the Manuscript Division to pay a call on David Wigdor, assistant chief of the Manuscript Division, who was about to retire, and to meet, Daun Van Ee, the division's historical specialist, who would be our main point of contact. We got our user cards and some basic instruction in the reading room's rather intimidating procedures. Even so, we had almost no idea of what awaited us.
Reality dawned in late December when Harold Koh e-mailed me the finding aid and shipped a bound volume of the oral history transcript. The finding aid was more than 300 pages long and the transcript was 500 pages. I printed out two copies of the finding aid and brought them to Frank's house in Georgetown. We arranged one with its different sections on his dining room table and looked at one another with a sinking feeling. Now what? Suddenly the two months, a fortune of time in daily journalism, seemed like no time at all. Not counting two weeks to write, I had six weeks to find some way through was looked like an endless jungle: Supreme Court case files, pre-Supreme Court judicial files, correspondence, family material, diaries and assorted other categories. Although the organization of the cases was logical, chronologically by term with cases identified by docket number, there was no subject index, so the case names had to speak to us by themselves. In addition, conference material on certiorari, such as the law clerks' pool memos and Justice Blackmun's notes from conference, were filed separately from the merits files that included opinion drafts and correspondence once the case had been accepted for plenary review. How and where to begin? And where would it end? I was writing for a newspaper, after all, and I needed a story.
We drew up what we called a roadmap through the case files, organized by subject, which quickly grew to dozens of cases. We were, of course, looking for news, the previously unknown, the "gee whiz" tidbit that might make the lead of a story. In fact, one of my concerns was the risk of presenting as new something that was in fact already out in the popular or academic literature, from the papers of other justices or other sources. My friend Stephen Wermiel, at Washington College of Law at American University, loaned me one of his best third-year law students to be a resource outside the library; I could send her a query and she could do a literature search to answer the question of whether what I had learned was really new. For this, she received independent study credit. I did send her a number of such queries, and her help was reassuring. I'll offer just one example, and then get back to my narrative. Everyone knew, of course, that Roe v. Wade was argued twice; first in December 1971, before a court of only seven justices following the retirements of Justices Black and Harlan, and then the following fall when the court was at full strength with the addition of Justices Powell and Rehnquist. But it was news to me when I found memos indicating that Chief Justice Burger had in fact set up a little committee of justices following the Black and Harlan retirements to vet all the granted cases and see which were so important that they should be held for a full court. Blackmun was on this committee, as was Potter Stewart; I never learned the third member. They looked at Roe v. Wade and Doe v. Bolton and decided to let them go ahead with a seven-member court. What a fascinating window into how clueless the court was about what it had in its hands with the abortion issue. Surely this must have been published somewhere. But it had not been, so I could feel confident in presenting it as news.
Back to my narrative: while Frank and I were making our preparations to enter the library, a little drama was taking place that we learned of only later. The Washington Post had learned of my arrangement and was furious. The Post does not like to be scooped, and in fact had beaten the world on the Thurgood Marshall papers, when Bob Woodward learned of the unannounced opening. Through its law firm, Williams & Connolly, the Post now threatened to sue the library, although what the cause of action would have been I was never sure. When the library was unresponsive to the legal threats, the Post executive editor, Leonard Downie, wrote to the president of Yale University, warning him that his incoming dean of the law school, Harold Koh, was about to bring disgrace on the university by this arrangement with the New York Times. Harold later told me that the president called him into his office to read him the letter, and they had a good laugh over it. In any event, a number of people got quite exercised and expended a lot of energy fussing over the arrangement. I learned around this time, too, that at the request of National Public Radio, the Blackmun family agreed to give Nina Totenburg the same early access for radio that they were giving me for print. Since we were both bound by the same publication date, Nina and I did not view ourselves as competitors but rather as two people faced with the same daunting challenge, and we often compared notes and had lunch together during our time in the library.
The library doors were opened to us on January 2, 2004. Frank was out of town that day, so I went alone. The Manuscript Division staff, cooperative at the beginning as they were throughout, gave Nina and me each our own private rooms within the reading room, spaces usually set aside for staff work or for examining non-public material, which of course the Blackmun Collection, at that point, was. The privacy also allowed Frank and me and Nina and her research assistant to carry on conversations without bothering the reading room's other users.
Not knowing quite where to begin, I began with the Justice files, folders of correspondence between Blackmun and all the justices he served with. These were arranged alphabetically, starting with Hugo Black. The Black file was small, because Hugo Black retired and died barely a year after Blackmun joined the court. But it was fascinating. One of the first documents I saw was a letter from Black to Blackmun, with copies to the conference, dated January 11, 1971. Black was complaining that Blackmun's failure to circulate a promised dissent was holding up issuance of a majority opinion in Baird v. State Bar of Arizona. "I think it would not be inappropriate, without criticizing anyone on the Court, to state that I believe we are further behind in handing down opinions at this time of year than we have ever been since I became a Justice, more than 33 years ago," Black wrote. From the tone of the reply that Blackmun sent the next day, it was obvious that he took the criticism personally and felt completely humiliated by this slap from the hand of a historical figure whom he revered and with whom he hardly felt worthy to sit on the court. It was a traumatic experience. It had never been reported anywhere. There was obviously gold in those files, in nearly every folder of every box.
I also, on that first day, began looking through the Warren Burger files and began the process of gaining some insight into the intense, compelling, and ultimately rather tragic relationship that was so crucial to Harry Blackmun's life and that yet evidently caused him so much pain. Burger correspondence exists in several locations in the collection, and I did not find it all at first. I should say here that Blackmun had the lifelong habit of saving both sides of every piece of correspondence. He typed all his responses. So he would save the incoming letter and the carbon of his response. Thus we have a complete two-way correspondence. The trajectory of the Burger-Blackmun relationship, beginning with the first letter from Burger when Blackmun was still a Harvard undergraduate, is the stuff of fiction, with Burger's flowery, self-conscious and overly poetic prose revealing the vulnerable and needy person behind what became the pompous figure of the man who looked like central casting's version of a chief justice. I felt sometimes that I had stepped into the middle of a Victorian novel.
In any event, at the end of the first day, having gone through the Black file and started on Burger by the time the reading room closed at 4:30, I went back to the office. "Find anything interesting?" my bureau chief asked. You wouldn't believe what's in there, I said.
For the next six weeks, Frank and I worked side by side in our little private reading room. We could call for 4 boxes at a time, so we usually had a full quota of 8. We went through the voluminous Roe v. Wade file early in the process, of course. The Roe story had been told and told well a number of times, based on other sources. Blackmun's files documented just how doctor-centered his interest in the abortion issue was, and just how naïve he and the court were about what to expect once the decision was issued. My favorite document in the Roe file was a handwritten note the Blackmun wrote to himself as part of a draft of the "mandate" section. He was suggesting that, assuming the decision was issued in January 1973, the mandate be delayed until April 1 to give states a chance to adjust their statutes to the decision. "It will be an unsettled period for a while," he noted.
In journalistic terms, my lead came not from the Roe file but from a case nearly 20 years later, Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion. The key document there was a handwritten note to Blackmun from Justice Anthony Kennedy, dated May 24, 1992, informing Blackmun, who had assumed that the majority was about to overturn Roe, that in fact all was not lost. "I need to see you as soon as you have a few free moments," Kennedy wrote. "I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news." The news, of course, was that the right to abortion was being preserved by a trio of Republican-appointed justices, Kennedy, Sandra Day O'Connor, and David Souter. Blackmun took notes on his conversation with Kennedy, scribbling on a little piece of pink Supreme Court memo paper. These two pieces of paper, side by side, vividly conjured the whole scene in my mind. I had, after all, just 12 years earlier, sat in the courtroom expecting to hear that Roe v. Wade was overturned, and instead heard Justice Kennedy intone the opening words of his section of the Casey opinion: "Liberty finds no refuge in a jurisprudence of doubt."
In fact, finding those two documents captured my experience in going through the Blackmun collection. I had seen the court for so long as an outside observer, and I had come to know it pretty well. Now I was inside, behind the scenes. It was exciting, gratifying, deeply engaging.
I'm sure that anyone who has done research in original documents has had experiences similar to mine in the sheer serendipity of following threads that lead in unexpected directions. For example, in letters to Warren Burger during the 1960's, when both men were federal court of appeals judges, Blackmun related his distress over a death penalty case, Pope v. United States, for which he was writing the majority opinion for the en banc Eighth Circuit affirming a federal death sentence for a young man who committed murder in the course of robbing a bank. Blackmun agonized over the case and returned to it often in his correspondence of the period. It was clear that he never forgave himself for not using the case as he had wanted to, as an occasion for criticizing the death penalty, and that this long-ago case became a kind of Rosebud that he carried with him on a long journey toward finally denouncing the death penalty in the closing weeks of his Supreme Court tenure. That was one of the most compelling finds of my research. I was also riveted by the hand-written letter from the Texas death row inmate on whose behalf Justice Blackmun had issued his famous dissent: "From this day forward, I shall no longer tinker with the machinery of death." "Dear Sir, I felt such a overpowering need to write you and thank you for reaching the decision you did on my case," the inmate, Bruce Callins, who was eventually executed, wrote to Blackmun.
I started writing in late February and produced a three-part series for the paper. The first part, leading with the Planned Parenthood v. Casey anecdote, appeared on March 4, 2004, the date the papers opened. The focus of the second part was on the Warren Burger relationship. The third was a Sunday piece, written in the first person, about the experience of working in the library. I described a backstage tour that one of the reference librarians, Jeffrey Flannery, gave to Frank Lorson and me. He showed us George Washington's diary, the papers of presidents and poets, and his enthusiasm for his job was palpable. "When I go home at night," I quoted Jeff as saying at the end of my piece, "I like to think that they're all in there talking to each other."
Finally, I'll get to the book.
The morning that the first installment appeared in the paper, I received a voice mail from Paul Golob, a book editor whom I had met not long before. Paul is the executive editor of the Times Books division of Henry Holt. Times Books is a joint venture between Holt and the New York Times with a special focus on developing book projects out of Times material. In his message, Paul said he thought the Blackmun material would make a good book. Before I returned his phone call, I had decided to say no. I was quite desperate to get back to my day job and I didn't see how I could write a book while covering the court full time. However, in talking to him I agreed to keep talking. He said he envisioned a book of about 300 pages, not a full-fledged biography but a life as told through the papers - in effect, more of what I had just done. Paul was also a knowledgeable and enthusiastic Supreme Court buff. Within a few weeks, we had signed a contract. The Times, as its part of a modest advance, would give me a paid leave from the time the current term ended in late June until the 2004 term began in October. By that time, I would have turned in the complete manuscript, for publication in the spring of 2005.
Getting back into the reading room on Saturdays in late spring, as the court term was drawing to a close, was easier than the initial plunge in January. For one thing, I had learned to read his tiny handwriting. And now I knew what I was dealing with, or so I thought. I started by looking at files I had passed up before as not likely to help my focus then, which was the court itself. Now my focus was Harry Blackmun the man. So I began by reading the diary he started keeping in 1919, at the age of 11, and which he wrote in until he was in his 30's and on track for partnership in a law firm. I couldn't believe my good fortune. There was so much about the young Harry Blackmun that foreshadowed the man he became - his determination and his insecurity, a wide streak of melancholy, his loyalty, his sensitivity to criticism and aversion to risk. The diary began as a little leather-bound book, but it soon spilled into reams of typewritten pages. I marveled at some of the stories he told - arriving at Harvard to accept his scholarship and walking the streets of Cambridge to find a bed because he had no college accommodations; his refusal of an offer from a law school acquaintance, Charles Wyzanski, to come down to Washington and work with him in the New Deal - a path not taken that Blackmun was never to forget and always wondered about.
And always, Warren Burger, his chum from kindergarten in St. Paul. I found a new trove of Burger letters that were highly revealing. And of course, there was more time to look at cases, particularly cases involving the rights of women, to which I had paid little attention in the newspaper articles but that proved to be a fascinating window on his evolution as a judge. Originally quite skeptical, even grumpy, about women's rights claims, he came to embrace those claims as part of a unified jurisprudence of women's rights and abortion rights that appears obvious and natural in retrospect but was anything but that as Harry Blackmun, who was 61 and quite set in his ways when he became a Supreme Court justice, struggled against his own instincts to find a new way of looking at the world. Thus the book became not just a life story, but a story of struggle and change, a personal journey with a depth and resonance beyond anything I had expected.
For the cases, a particularly helpful feature of the files on every case was the memo that Blackmun would dictate to himself, or write out in long hand, as he prepared for oral argument. He would take the law clerk's bench memo, his own reading of the briefs, and whatever background he brought to the case, and write down what he wanted and expected from the argument; how other members of the court might respond; what the outcome would probably be, what it should be, what questions he had, and what his own instincts were. It was a kind of interior monologue that revealed his effort to come to grips with every case. Even his law clerks did not know he was doing this, and were quite surprised when I told them later what I had found.
Another very helpful find was a sheaf of papers labeled "Chronology of Significant Events," in which Blackmun listed, with a sentence or a phrase, things of interest that happened during each term of the court. It could be a speech he gave, a case that was decided, an argument at the justices' conference, the birth of a grandchild, or the collapse of the Soviet Union. The only thing these entries had in common was that they all referred to something that Harry Blackmun thought was important at the time. It was another kind of interior monologue, quirky and fascinating.
Paul Golob, my editor, had a job to do in teaching me how to write a book. I had been a daily journalist for my entire career, and as I described a few minutes ago, my job in mining the Blackmun papers for the Times was to find and present news. Paul insisted on a basically chronological narrative. Even though everyone reading the book already knew that Harry Blackmun wrote Roe v. Wade, he told me, these readers still wanted the story to unfold so they could see it happening. They didn't want a premature punch line to spoil the story. He didn't like foreshadowing or other such literary devices.
I worked seven days a week all summer, turning in my chapters one at a time. Only rarely did I go outside the papers for material. Paul wanted me to include some background on the District of Columbia Circuit to give context for Warren Burger's years there, so I turned to Jeffrey Brandon Morris's official history of the appeals court, Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit, published in 2001. I learned from a book that had just been published, The War on Choice by Gloria Feldt, former president of Planned Parenthood, that Sally Blackmun, one of the justice's daughters, had an unplanned pregnancy when she was a college student during the pre-Roe years of the mid 1960's. She dropped out of school to marry her boyfriend, then had a miscarriage and soon was divorced. Sally, whom at that time I had not met, relayed this deeply personal story in a foreword to Gloria Feldt's book, and it certainly added a dimension to mine. There had been allusions in Blackmun's letters to Burger from that time about some family difficulty, but it was not spelled out anywhere that I could find in his papers.
I also consulted Sally Blackmun on a few factual points. One was Harry Blackmun's whereabouts in early June 1994. Vera Burger, the former chief justice's wife, had died. Blackmun had been best man at the Burger's wedding. Yet Blackmun did not attend her funeral, sending Warren Burger a condolence letter that noted only that he had an "irrevocable commitment" to be in Boston at the time of the funeral. This seemed rather cold, and I wanted to provide an explanation if there was one. I could find nothing in the papers that indicated what his conflict might have been, so I e-mailed Sally Blackmun. She consulted her sisters, and it turned out that he had been in Boston to speak at a grandson's high school graduation, more important to him than attending Vera Burger's funeral - and a choice that I think many other people would have made as well.
All summer, Paul Golob and I kicked around potential titles for the book, but neither of us ever felt satisfied. I was feeling rather desperate, because the manuscript was about to be finished and there was still no title. The title literally jumped out at me as I wrote the last paragraph of the book. In fact, it seemed to grow organically from everything I had put into the book and from the narrative I had managed to extract from the nearly overwhelming mountain of material that is the Blackmun collection. I came home and told my husband that I had found the title, and he agreed. I called Paul Golob and he agreed too. This talk is not a reading, but let me conclude by reading you the last paragraph of the book. It played off an image that Harry Blackmun had used late in his life, when he said he had often felt like a cork bobbing on a stream. This is how I concluded the book:
"Blackmun often grumbled that he knew he would 'carry Roe to my grave,' despite having spoken for a 7-to-2 Court and notwithstanding his hundreds of opinions in other areas of law. His complaint was valid, and yet, in so many ways Roe v. Wade was not just another case. The world attached it to Blackmun in a manner that few Supreme Court decisions are ever linked to their authors. The popular attribution of Roe to Blackmun alone was a distortion of the Court's reality that baffled him at first, and he resisted the notion that he was Roe's only creator. Eventually, though, he yielded; continued resistance would have been futile, in any event. In yielding, he locked Roe in a tight embrace and never let it go. Its defense carried him in new directions: to commercial speech, in Bigelow v. Virginia, the abortion advertising case; to the other world 'out there' of poverty and need in the abortion-funding cases; and, most significant, to his eventual commitment to the struggle for women's equality in the sex discrimination cases. Warren Burger could never have suspected that in turning to his reliable friend for one unwelcome assignment, he was launching Blackmun on a journey that would open him to new ideas and take him far from their common shore of shared assumptions. Burger sent Blackmun into dangerous waters without a life preserver, and then turned aside. But Blackmun kept swimming. In defending his legacy, he created his legacy. He became Justice Harry Blackmun."
Once again, thank you very much for inviting me.