The
papers of the late Supreme Court Justice Harold Blackmun are now
available to the public in the Library of Congress. Included in
those papers, which detail Blackmun's role in some of the most
influential court decisions in the 20th century, is more than
30 hours of oral history interviews the justice recorded with
one of his former clerks, law professor Harold Koh.
In this Q & A, Koh, who was recently
appointed dean of the Yale Law School, discusses what it was like
to work for Blackmun, the process of taping the oral history and
how the justice regarded his place in history.
You clerked for Justice Blackmun during the 1981-82 Supreme Court
term. What was it like to work for him?
It was a remarkable year. He came to work every morning
at 7 a.m., left at 7 p.m. and worked at home at night. We ate
breakfast with him every morning. He treated us with utmost respect,
as genuine colleagues, and never gave orders. But there were specific
ways that things had always been done in the chambers that we
learned and followed. He had a great sense of humor, and told
wonderful stories. He would read us funny letters that were sent
to him and also some sad ones.
He had a very profound sense of the honor
of being a Supreme Court justice. He loved history and had a deep
reverence for the court. He felt very lucky to be there, and he
made us feel equally lucky. I have never met a more modest man.
Once he sat next to a woman on an airplane who asked him what
he did for a living. He said, “I am a lawyer in Washington.”
I
have worked in the government several times and have now met quite
a few famous people. Sometimes, I have been disappointed to find
the private person less impressive than the public persona. But
Justice Blackmun is someone I will always feel proud to have known.
He acted just like you would want a Supreme Court justice to behave:
incredibly hardworking, modest, patriotic, good-natured and so
deeply committed to doing justice.
Some legal scholars have speculated that the public release of
Justice Blackmun's papers on March 4 will provide some of the
most substantial information about the workings of the Supreme
Court in recent history. What sort of impact do you expect his
papers will have?
I think they will be the authoritative archive of the workings
of the United States Supreme Court in the last quarter of the
20th century. They will be an indispensable resource for historians
and journalists for many years to come.
How
did Justice Blackmun want his papers presented to the public?
Did he have concerns about their eventual place in history?
Justice Blackmun felt that the court belonged to the people, and
he felt his papers belonged to the public. He maintained them
meticulously. He wanted the public to have access to them and
for historians and journalists to have a better understanding
of how the court worked. He felt that transparency is a good thing,
and that people would better appreciate what the court did if
they saw that it is a human enterprise, carried out by fallible
people, but who nevertheless are utterly dedicated to doing justice
and working as hard as they can to faithfully interpret the Constitution.
What were the challenges of assembling the oral history? Was there
anything that surprised you as the justice reflected on his storied
career?
The idea of doing the oral history came up in 1993. A number of
justices had done them, but only on audiotape, and not in great
detail. Justice Blackmun felt comfortable being videotaped, and
so we thought it would be valuable to do them in a form that would
be "evergreen" for all future viewers. We started just
after he retired from the Supreme Court in July 1994, and taped
38 hours of videotape from that date until December 1995.
The initial sessions were filmed in his
old chambers at the Supreme Court, which he had occupied for nearly
a quarter of a century. Because he would be vacating those chambers
and moving to senior justice's chambers at the Federal Judicial
Center, we started by taping in his old chambers. We also taped
some reminiscences in the Supreme Court courtroom, perhaps the
first time that a justice has been filmed talking about the court's
work in the courtroom itself. We also filmed in the justices'
library on the third floor of the courthouse, where Justice Blackmun
used to disappear to draft opinions. The bulk of the taping was
done at a studio at the Federal Judicial Center in Washington,
in the building next to Union Station.
We started with the justice's ancestors
coming to America, and ended with his last term on the court,
and his speculations about the 21st century. In particular, we
covered each term that he was on the court, and spoke about each
of the major decisions in which he participated. With regard to
the abortion case, Roe v. Wade, he filmed a solo hour of videotape
recalling his own memories of the events that led to the decision.
For each session, he would review the files of the key cases,
and I would ask him about accounts of the cases that had been
made public, so that he could correct and modify them.
What surprised me the most was how excellent and detailed his
memory was, even of events that were decades old. On the day after
Chief Justice Warren Burger, his boyhood friend, died, I asked
him about his memories of the chief justice. Justice Blackmun
recalled events of 80 years earlier as if they had happened that
same day.
Another
surprising thing is how, even as a very powerful participant in
these historic cases, Justice Blackmun never lost his sense of
being a "fly on the wall," observing these important
events from a layperson’s perspective. He invariably saw
even grand historical events from a very human angle, which made
them feel very real and immediate years later.
Did the experience of creating this history reveal anything about
the intersection between the personality and life of a Supreme
Court justice and his or her decisions?
I think so. Justice Blackmun was a modest man, concerned for the
underdog. He grew up in Minnesota and spent most of his life before
he was appointed to the Supreme Court affiliated with healthy
institutions: Harvard College and Law School, a top Minneapolis
law firm, the Mayo Clinic (where he was general counsel for ten
years) and the U.S. Court of Appeals for the 8th Circuit (where
he was a law clerk and later a judge for the decade of the 1960s).
He came to the Supreme Court with a basic
faith that our government and private institutions would do the
right thing. Once at the court, he was exposed to a much broader
slice of life than he had ever seen before, through the many briefs,
arguments, and pleadings that came before him. He saw up close
human suffering that he had not seen before. He came to see his
role differently: Through decades of growth and change, he recast
his judicial mission from deferring to insiders to defending outsiders.
He
broke out of the parochialism of the court to see himself as a
judge whose job was to watch out for the "little people,"
who would make sure that the voiceless had a voice on the Supreme
Court. One sees this in his decisions on abortion, the right to
privacy, affirmative action, the death penalty, throughout his
jurisprudence. In the end, I think he will be remembered as the
conscience of our court in the late 20th century
Blackmun is well known for authoring the landmark abortion ruling
Roe v. Wade. Did he have any fresh musings on the decision or
its impact as you interviewed him?
Yes. Justice Blackmun recorded a whole separate hour of videotape
about Roe v. Wade. He describes the elaborate process through
which the case came to be assigned to him for writing. He underscored
the fact that although the case is associated with him alone,
that he actually wrote for six other justices and accepted editorial
input from them for which he was later criticized. The case was
actually argued twice, and he spent much of the intervening summer
conducting research about various aspects of the case at the Mayo
Clinic. He notes that the chief justice did not permit the case
to be announced until Jan. 22, 1973, two days after Richard Nixon’s
second inaugural. Coincidentally, that was the same day that Lyndon
Baines Johnson passed away, and so the case was given relatively
short shrift in the press.
In
the years after the case came down, he said that he had received
over 70,000 letters about it. Over time, his thinking about the
case plainly evolved. When he first wrote it, he saw it as much
as a case about deference to the medical relationship between
a doctor and a patient as he did about the rights of women to
make their own choices. But over time, he came to see it as what
he called -- on the day he retired from the court in 1994 -- a
necessary step on the road to the full emancipation of women
Although appointed by a Republican president, Blackmun was known
for his independent, liberal-leaning instincts. What is your perspective
on how he viewed his role on the Supreme Court or how he approached
each case?
Justice Blackmun saw himself as a moderate Republican, and he
often commented that he did not change so much as the court "moved
beneath him" to the right. It is clearly true that the court
he left was more politically conservative than the one he joined
in 1970. He approached each case with very thorough preparation.
He read all the briefs carefully, and had his law clerk prepare
a very detailed bench memorandum that was expected to review all
amicus curiae briefs and relevant law review writings. He never
forgot the people behind the cases. He often asked, "How
will this case affect real people?" Ironically, he became
perhaps the first justice to become less isolated from the real
world by sitting on the Supreme Court.
Beyond Roe v. Wade, Justice Blackmun participated in several important
Supreme Court opinions on topics still debated today, including
affirmative action and the death penalty. What do you view as
his most significant contributions to American law?
Justice Blackmun made enduring contributions in many areas of
the Supreme Court's work. His position on affirmative action,
stated in the Bakke case, was "in order to get beyond racism,
we must first take account of race," a position that has
sustained the majority of the court through last term in the Michigan
affirmative action cases.
His view on the right to privacy, stated
in dissent in the same-sex sodomy case in Bowers v. Hardwick,
became the law last term in a Supreme Court majority opinion in
Lawrence v. Texas. His view that the courts should no longer "tinker
with the machinery of" the death penalty, stated in Callins
v. Collins, may still become the law. He pioneered important decisions
on separation of powers, federalism, the commerce clause, taxation
and the use of scientific evidence in judicial proceedings. He
was one of our most internationalist justices, a prescient position
in an era of globalization.
He
was sometimes accused of emotionalism or sentimentalism. But what
I think he will be remembered for most is for insisting, as he
said in the DeShaney case, "that compassion need not be exiled
from the province of judging." That is a very important --
and a very human -- message in these impersonal times. |
