TOPICS > Politics

The Blackmun Tapes

March 5, 2004 at 12:00 AM EDT

RAY SUAREZ: The make-up of the Supreme Court hasn’t changed at all in ten years, not since Harry Blackmun retired. But during the 24 years Blackmun served on the court, he saw lots of change. He sat under two chief justices, Warren Burger and William Rehnquist. During the videotaping of his oral history, Blackmun remembered justices trying to take some liberties with Warren Burger in 1973.

JUSTICE HARRY BLACKMUN: Potter Stewart, of course, as I was, was a baseball fan, a very livid one if the Cincinnati Reds were involved. During the times when they were in the World Series, which was in October — and it always seemed to coincide with our sitting — he insisted that his clerk send the score by half inning in to him.

Well, they brought it to whoever was sitting at the end of the bench and it went down from justice to justice. I think this irritated Chief Justice Burger a little bit, because he received it from the justice on his right, looked up and saw what it was and banged it down on the left.

RAY SUAREZ: William Rehnquist succeeded Burger as chief justice in 1986 and developed a different way of running things.

JUSTICE HARRY BLACKMUN: He was a little hard on counsel at times, I thought, cut them off rather peremptorily, nothing very serious, but in a way the Chief Justice Burger would not have done. When one of the justices obviously would like to discuss a case in greater depth, he would be inclined to say, “Well, that will come out in the wash. That will come out in the writing,” and move on. I think there was a little mild disgruntlement about that kind of thing.

RAY SUAREZ: It was about the time Rehnquist became chief justice that Blackmun began to worry about the direction the court took on several social issues. He talked about that with his former law clerk, now Yale Law professor, Harold Koh.

PROF. HAROLD KOH: The great case of this term, or maybe the most famous case of this term, O.T. 1985, was a case called Bowers v. Hardwick, which was a challenge to the Georgia sodomy law.

RAY SUAREZ: The Supreme Court upheld the Georgia law by a 5-4 vote.

JUSTICE HARRY BLACKMUN: The court had trouble with the case in the sense that the vote originally was 5-4 one way and ended up 5-4 the other way.

PROF. HAROLD KOH: Who was the vote who switched?

JUSTICE HARRY BLACKMUN: Justice Powell was the critical vote there, and then I’m sure it was a very difficult case for him. Justice Powell always thought the best of everybody, and this had to do with the homosexual and sodomy in private and the like, and I think there were things that Justice Powell, in his own life, just refused to believe existed.

I remember his telling me one time — I mimic him a little bit, but I do it with respect — he said, “Harry, I’ve never known a homosexual in my life.” Well, when he said that, it happened that there were two in his chambers that very moment. But these were things that Lewis didn’t want to believe or to accept and didn’t do any harm but there it was.

RAY SUAREZ: Justice Byron White wrote the majority opinion in the Bowers case.

JUSTICE HARRY BLACKMUN: I’ve always thought, and I’ve told Byron this with a smile on my face, it’s one of the worst opinions he ever wrote, because it’s kind of an ispe dixit — “this is what the law is or ought to be” — and there’s no analysis in it or anything.

RAY SUAREZ: Blackmun wrote the dissent.

PROF. HAROLD KOH: When you were writing the opinion, you talked about Bowers. You said, “It’s not a case about a fundamental right to engage in homosexual sodomy, but about the right most valued by civilized men, namely the right to be left alone,” citing Brandeis’ opinion in Olmstead.

JUSTICE HARRY BLACKMUN: I think the dissent is correct and I’ve stated publicly more than once that it will be the law some day. And then people say, “What makes you think so?” And, well, I don’t need to go into the reasons for that.

RAY SUAREZ: Blackmun was right. Just last year, in Lawrence v. Texas, the Bowers decision was overturned, establishing for the first time a right to sexual privacy. Yale law professor, Harold Koh:

PROF. HAROLD KOH: Justice Blackmun’s story is one of recognizing the debilitating effects of societal discrimination and that the effort to replace it is going to take as long as the time of discrimination itself.

RAY SUAREZ: Then there was the death penalty case, Darden v. Wainwright, in which the court, by a 5-4 vote, dismissed a Florida inmate’s argument that misconduct by the prosecutor in his trial should overturn his death sentence. Darden was eventually executed.

PROF. HAROLD KOH: You actually went on to say: “It seems to me that there are a number of cases this term in which five justices have selected a result then valiantly tried to argue to it without paying too much attention to establishing these principles. Darden is one of them. Another is Bowers.” Then you included some other cases. I’m wondering…

JUSTICE HARRY BLACKMUN: A terrible thing to say.

PROF. HAROLD KOH: How did you feel about this particular case, or do you remember this as somehow having set the mood or the tone for the term?

JUSTICE HARRY BLACKMUN: Oh, I suppose so. I think I was a little discouraged at the time. I suppose it’s fair to say that I was feeling that the court was arguing toward a result rather than letting legal analysis take it to the result at the time, and certainly I felt it was true in Bowers against Hardwick. But I think it was not a period of great strength for the Supreme Court.

RAY SUAREZ: Blackmun’s position on the death penalty had changed since he first joined the court.

PROF. HAROLD KOH: In particular you said, “I went so far as to say that the court was willing to tolerate a level of fairness in death penalty proceedings so low that it should make conscientious prosecutors cringe.” Did you see that there was a sort of…

JUSTICE HARRY BLACKMUN: That’s rather strong language.

PROF. HAROLD KOH: Strong language.

JUSTICE HARRY BLACKMUN: As a matter of fact, I’m shocked when I read some of the things that I write, at how tough I am in my written comments. I’m not that kind of a guy. But, I cannot see any of these death penalty cases where there hasn’t been a violation on the ground of either poverty or race. If we can ever get that straightened out, it will help. But, of course, the real answer to it is to do away with the death penalty.

PROF. HAROLD KOH: Even at the time when he was confirmed for the Supreme Court, he didn’t like the death penalty, but he thought it wasn’t the role of a judge to interfere. Nor did he agree with Justice Marshall and Justice Brennan’s view that it was unconstitutional in all circumstances. And then, over time, he came to the conclusion it just could not be administered fairly. And it was at the end of his time on the court that he said, “I shall no longer tinker with the machinery of death.”

JUSTICE HARRY BLACKMUN: That’s my feeling. That’s the way the majority of the countries of the Western world, anyway, have gone, but we’re going the other way. The flow is just the reverse in this country.

RAY SUAREZ: Professor Koh, now set to become the next dean of Yale’s law school, calls his late friend “the conscience of the court in the late 20th century.”