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The Blackmun Tapes

March 4, 2004 at 12:00 AM EDT

RAY SUAREZ: Supreme Court Justice Harry Blackmun sometimes called himself “the accidental justice.” Two of Richard Nixon’s high court nominees were blocked by the Senate before Nixon turned to the federal judge from Minnesota. However accidental, Blackmun was durable, remaining on the court for 24 years. As many justices have done, he sealed his papers until after his death. But in an unusual move, he added hours of on-camera reminiscences guided by his former clerk, legal scholar and diplomat Harold Koh.

PROF. HAROLD KOH: This is the Justice Harry A. Blackmun oral history. This is taping session number one, on July 6, 1994. I’m Harold Koh. I’m a professor at Yale Law School, and clerked for Justice Blackmun in October term, 1981.

RAY SUAREZ: Harold Koh conducted his first interview of Harry Blackmun one week after Blackmun retired from the court, and then again every couple of weeks for the next 17 months. Those 38 hours of videotaped oral history, plus 1,500 boxes of Blackmun’s court papers were made available to the public today by the Library of Congress, exactly five years after Blackmun’s death.

This summer, Harold Koh will become dean of the Yale Law School. That’s where we talked about Harry Blackmun, and what the release of his papers and oral history might mean to scholars and historians. Are there things that they’ve been waiting to know or wanting to know that are now known or knowable?

PROF. HAROLD KOH: Well, I think this archive is important for three reasons. First, I think it is the authoritative archive of the Supreme Court for the last quarter of the 20th century. Anybody can recreate the story of any case from these files, and in many cases put it together with Justice Blackmun’s own words in the oral history.

Second, you see it from the perspective of a very unusual man, Harry Blackmun, who was on the court for 24 years. He’s a very modest but very observant person, and he has a wonderful ability to take himself out of … distance himself from the discussion, even while being very much a part of it. So you get to see these materials through his eyes.

And third, I think we see some of the most important social issues of our day played out both in the papers and in the oral history tapes — abortion, the death penalty, the right to privacy, federalism, the First Amendment — all in a stage between people that we have heard of, but told through the work of this man. And I think it makes for a very fascinating story.

RAY SUAREZ: And probably the most fascinating part is Blackmun’s involvement in the 1973 landmark case Roe v. Wade, in which by a 7-2 decision, the Supreme Court legalized abortion in the United States. Harry Blackmun wrote the majority opinion, basing his decision on a woman’s right to privacy. Of course, it was one of the many issues Harold Koh asked Blackmun about during the videotaping of his oral history.

PROF. HAROLD KOH: When you circulated the opinion, the final draft opinion, did you think you would get five easily?

JUSTICE HARRY BLACKMUN: Oh, I don’t know what I was thinking at the time. I knew that William O. Douglas would be on that side. As a matter of fact, he joined immediately and said he was going to write separately, but then Douglas always wrote separately if he felt strongly about any case, and that didn’t disturb me at all. And White and Rehnquist, of course, being on the other side, I knew one of them would write in due course. White, of course, had the lead dissent and was pretty bitter. It’s a bitter dissent, there’s no question about it, where he accused the majority, and particularly me, of the exercise of “raw judicial power.” Those are pretty strong words. I kid Byron White a little bit and say he’s done the same thing in some things he’s written since then, which we all do.

PROF. HAROLD KOH: Do you remember any justices asking for changes to join the opinion?

JUSTICE HARRY BLACKMUN: Only one. Potter Stewart asked for the addition of two or three paragraphs. They’re fairly early and to have to do with whether a fetus was a person within the meaning of controlling constitutional thought. I put it in. I wish I hadn’t in retrospect, but as soon as I put it in, Potter joined the opinion immediately, and … but it has caused a lot of antagonistic comment, those insertions, and I don’t believe … or I believe that they didn’t add a great deal to the opinion. We could have gotten along without it, but then that’s the way we develop opinions.

PROF. HAROLD KOH: And Brennan and Marshall, did they come in pretty quickly?

JUSTICE HARRY BLACKMUN: Came in right away. The vote we waited for was that of the chief justice. The chief justice was the last vote. And I wondered why he was taking such a long time. I know of some problems he had personally on this kind of an issue in his family. And, of course, when it did come out, it was fairly short. It seemed to me not over two pages. And one thing I was always grateful for in the chief justice’s opinion was that near the end of it, he said, “The court today is not holding for abortion on demand.” And I’ve always been grateful for that. I think the majority opinion said that, certainly implied it, but coming from the chief justice in a separate opinion, I think greatly enforced that posture, that aspect of the case.

PROF. HAROLD KOH: Did you have the feeling when you announced the case, “This is the biggest case I’ve written since I’ve been on the court”?

JUSTICE HARRY BLACKMUN: No, I didn’t feel that at all. I just didn’t appreciate it at the time. And, of course, now over the years, it’s always been with me. I’ll carry it to my grave, for what it’s worth, although I think I’ve written in a lot of other areas of the law. But I suppose one catches cases like that, and certainly it has emerged as a high point. Maybe that’s the wrong description. Certainly it’s emerged as a controversial case, as a well-known case during my time.

The result was, of course, that the mail started to pour in, and I believe it was the greatest outpouring of mail from the public since Brown against the Board of Education.

PROF. HAROLD KOH: Did this begin immediately?

JUSTICE HARRY BLACKMUN: It began within the week, anyway after Mr. Nixon was inaugurated and in office, then the newspapers turned to this. But as I recall, I can see our officers at their respective posts where usually they just stand and watch, buried, each of them, with mail. And they had nine baskets in front of them, and they’d go and put the letters in all those baskets and separate them. I’ve retained all of that mail. I still have it, thinking that some day some Ph.D. candidate would like to get into it and find out why people wrote and why they wrote in groups, pro and con. I would think it would be an interesting psychological analysis.

PROF. HAROLD KOH: When you retired at the press conference at the White House, you were asked, “What has Roe v. Wade meant and why do you think it’s been an important decision for our country?” And you said…

JUSTICE HARRY BLACKMUN: I think it was right in 1973, and I think it was right today. It’s a step that had to be taken as we go down the road toward the full emancipation of women.

PROF. HAROLD KOH: Is that the way you felt about it at the time, that you were announcing it, that this was a necessary step for the emancipation of women?

JUSTICE HARRY BLACKMUN: Well, at the time, I don’t think I felt much of anything in that respect, but as the furor developed and its integrity was attacked and upheld, certainly I came to that conclusion, and I feel strongly about it today. I think it’s a step that had to be taken. And I make no apology for Roe against Wade. As I say, I think it was right in 1973 and I think it is correct today. And I’ll stick with my guns on that one.

PROF. HAROLD KOH: In the years after, did you ever think that Roe v. Wade would be overruled?

JUSTICE HARRY BLACKMUN: Well, yes. There was a period during, as I mentioned a little bit before, today, during certain years of the Reagan and Bush administrations when they took a flat position asking the court to overrule it that I thought it might be overruled. I still think the votes were there for it on an initial counting. Now, if it got down, really, to the hard decision of whether or not to do it, I think that the average justice — not all of them — but the average justice would think long and hard about it.

RAY SUAREZ: He did watch very closely, and you quizzed him on this a bit, about how Roe stood up as law in the face of various challenges, various refinements, various attempts to pull it down. He had a proprietary interest, yes?

PROF. HAROLD KOH: I think he felt that Roe was … he felt that Roe was a very signal, constitutional moment. It was a clear protection of a kind of right to privacy as well as a clear protection of women’s rights. And as various runs at it were made from different directions, I think he thought somebody had to reassert the core, the core of this idea is correct.

RAY SUAREZ: The stiffest challenge to the Roe v. Wade decision came in the 1992 case called Planned Parenthood v. Casey. Blackmun’s notes show Justice Anthony Kennedy was prepared to vote with a slim majority to, in effect, overturn Roe. But Justice Kennedy changed his mind, writing a note to Blackmun which said, “I need to see you as soon as you have a few moments. I want to tell you about a new development in Planned Parenthood v. Casey. It should come as welcome news.” The news was that Kennedy would join Justices Souter and O’Connor to write an opinion to uphold a woman’s right to choose.

JUSTICE HARRY BLACKMUN: Justice Kennedy came in and talked to me about it, told me what was happening and that he was one of the three, which as far as I was concerned was a matter of great gratification.

PROF. HAROLD KOH: When finally in Planned Parenthood v. Casey three justices — Justices Souter, O’Connor and Kennedy — said, “Whatever we may think about Roe, the fact that this is a matter that’s decided for the stability of the country and the court, we’re going to maintain it.” I think that gave him a sense of peace about it that he didn’t have before.

JUSTICE HARRY BLACKMUN: And I think the Casey case has done a lot to silence the turmoil and the like. And as I said before, I think we’re in a position to carry on and get on to other things now.

RAY SUAREZ: Tomorrow we’ll have another report drawn from the Blackmun archives, including two cases where he was in the minority on the constitutionality of the death penalty and the recently overturned Georgia sodomy decision. And we’ll continue a rare look at the inner workings of the court during a turbulent quarter century.