BECOMING JUSTICE BLACKMUN

Vol. 16 No. 12 (December, 2006) pp.983-988

BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY, by Linda Greenhouse. New York: Times Books – Henry Holt and Company, 2005. 288pp. Hardcover. $25.00. ISBN: 080507791X. Paperback. $14.00. ISBN: 0805080570.

Reviewed by Joseph F. Kobylka, Department of Political Science, Southern Methodist University. Email: jkobylka [at] mail.smu.edu.

Linda Greenhouse is one of the preeminent journalists covering the Supreme Court. She has held this beat since 1978, and her coverage of its decisions for the NEW YORK TIMES is notable for its clarity, concision, and insight. Such is her prominence that Judge Laurence Silberman of the Court of Appeals for the District of Columbia has suggested that some Justices move to the political left to reap the benefits of the “Greenhouse Effect”: favorable reporting on their jurisprudential “growth.”¹ Regardless of the accuracy of his judgment, it is clear that Greenhouse enjoys a supreme status among journalists who cover the Supreme Court. Along with NPR’s Nina Totenberg, she was granted early access to the papers of former Justice Harry A. Blackmun by the Blackmun family. Her investigation initially led to two lengthy pieces in the TIMES when the papers opened to the public (4 and 5 March 2004). With BECOMING JUSTICE BLACKMUN, Greenhouse takes her keen reportorial skills into the realm of judicial biography. What she fashions in its 251 pages is an informed, nuanced, and incomplete picture of a Justice who, in her telling, clearly grew to “become” Justice Blackmun.

“Judicial biography” is too strong a phrase to describe what Greenhouse accomplishes in this nice, neat, narrative. Her book is not so much a biography of Blackmun or his time on the Court as it is a series of largely chronologically organized essays on some politically salient elements of Blackmun’s tenure, viewed through a lens ground by close investigation of the nearly 1,600 containers of papers that Blackmun left to the Library of Congress. Drawing nearly exclusively from them, Greenhouse’s story of Blackmun on the Court revolves around twin themes that interweave and organize much of the book: Blackmun’s relationship with Warren Burger and his tussles with ROE v. WADE (1973) and its aftermath. Greenhouse does alight on cases in other areas of law, but she does so largely in so far as they touch on her organizing themes. As a result, this is not a systematic examination of either Blackmun’s tenure as a Justice or the record of the Courts on which he served. To be sure, she makes no claims to have written a “conventional biography or a comprehensive survey of a judicial career” (p.xi). Rather, she argues that BECOMING JUSTICE BLACKMUN is a “coherent narrative of a consequential life that . . . left its mark not only on the law but on American society” (p.xi). In this, she is successful to a degree. We know more about Blackmun the man and the Justice after reading BECOMING, but we are left hanging on the issues outside of Greenhouse’s focus, the [*984] motivations of other Justices in carrying on the shared task of collegial judging, and the enduring impact – if any – of Blackmun on the corpus of constitutional law.

At its outset, Greenhouse’s gloss on Blackmun follows the contours of conventional biography. The first fifth of the book examines aspects of his youth in Minnesota, his transition to Harvard for college and law school, his return to Minnesota to clerk for Judge John B. Sanborn of the Court of Appeals for the Eighth Circuit, his tenure at the firm of Junell, Driscoll, Fletcher, Dorsey, and Baker, his nearly ten years as resident counsel at the Mayo Clinic, and his tenure – ironically replacing Sanborn – as an Eighth Circuit Court of Appeals Judge. It is in this part of the book that Blackmun’s friendship with Warren Burger is first developed.

One of Greenhouse’s real strengths is her seeming capacity to feel the Blackmun – Burger relationship and convey that feeling to her readers. She nicely chronicles the depth of their early friendship, and insightfully probes the tensions that, as they served together on the Court, led to its souring. Though she does not attempt to identify a silver bullet that brought their close camaraderie to an end, she largely attributes its demise to the stresses growing out of case deliberations and decisions. Because of the book’s recurring focus on abortion, it would be easy to tie the breakdown to Burger’s tepid support for, and ultimate rejection of, Roe. He ultimately renounced ROE in THORNBURGH v. AMERICAN COLLEGE OF OBSTETRICIANS (1986), but even in the beginning Burger delayed circulation of his separate concurrence in ROE – and the announcement of its decision – forcing the case to come down after Nixon’s second inauguration. Given ROE’s importance to Blackmun, and the fact that Burger assigned the opinion to him, Burger’s vacillations on abortion obviously galled Blackmun and contributed to increased tension between them. However, Greenhouse notes other cases that broadened the growing distance between the two men: U.S. v. NIXON (1974) saw, as long ago reported in THE BRETHREN, Blackmun as a co-conspirator in opposition to Burger’s draft majority opinion; BATES v. ARIZONA (1977), in which Blackmun’s majority opinion pulled the plug on prohibitions on advertising by attorneys, much to Burger’s chagrin; COKER v. GEORGIA (1977), where Blackmun first drifted from voting with Burger in a capital punishment case; REGENTS v. BAKKE (1978), which saw an ill Blackmun vote late in the hour and against Burger’s position on affirmative action; and I.N.S. v. CHADHA (1983), in which Blackmun joined a chorus jeering Burger for holding the case over for reargument.

The case Greenhouse uses to cap and crystallize the decay between Burger and his one-time “best man” is DARDEN v. WAINWRIGHT (1986). This decision came down in the last year of Burger’s tenure and its paper circulated through the Court at the same time as the contentious THORNBURGH opinions. Estrangement is too mild a descriptor for the state of the relationship of these once [*985] close friends by this point, and Greenhouse’s recounting of the path DARDEN wound through the Court paints this picture vividly. More was at work here than the abuse of habeas corpus that Burger perceived and Blackmun’s argument for a full airing of the issues embedded in the case. Deep personal suspicion and distrust characterized the relationship at this point. However, there are points at which Greenhouse strains to document the deterioration – for example, she highlights that Blackmun “tersely noted” Burger’s death in his annual “chronology” (p.244), but fails to note that everything in his chronologies was tersely noted, including the entry that followed Burger’s death, “Wisconsin” referring to his much anticipated, month long, post-term vacation – but the substantive decay is there and she captures it in a remarkably even-handed, insightful and compassionate manner. This is no trashing of Burger. Indeed, if anything she downplays the pomposity and self-importance that marked Burger’s letters to Blackmun once Burger went to Washington in 1953. In the end, the proximity of life on the Court drove these two highly insecure men apart.

It is in her treatment of Blackmun’s tenure on the Supreme Court that Greenhouse’s book most diverges from a standard judicial biography. It is not quite “all abortion, all the time,” but it is more that than it is a broad ranging assessment of the tenor of his tenure. ROE is not the only case at which she looks, of course, but it is the prism through which she examines Blackmun’s development as a Justice. It is a logical focal point: ROE and its progeny are central to Blackmun’s development. Chapters 4 and 8 focus solely on these cases, as do significant portions of 5 and 6. Finally, in the major interpretive argument of the book, Greenhouse ties his abortion evolution to his becoming an “improbable icon” in Chapter 9. There she focuses on gender discrimination cases and comes to the conclusion that Blackmun – whose ROE right, she correctly notes, belonged as much to the attending physician as it did to the woman – became a “feminist icon” because of his “full embrace of women’s rights” by the end of his tenure (p.207). She returns to this theme in her concluding chapter.

The essence of the “Blackmun becoming a feminist” argument is this: Blackmun’s position on abortion evolved from a relational (doctor-woman) right to a woman’s right in the crucible formed by the breakdown of his relationship with Burger, the Court’s pulling away from his understanding of ROE (beginning in the funding cases of the 1976 Term), and the Reagan and Bush I appointments and arguments to the Court. With the feminization of his conception of the abortion right came a new awareness of (and support for) women in discrimination cases generally.

Assuming for a moment that Blackmun became something of a born again feminist, Greenhouse severely under-represents the impact of the clerks who worked with him during these years. I am not talking about the Garrow (2004) thesis here – the notion that Blackmun was caught in the undertow of his clerks – but the more modest notion that he [*986] learned something from them and vice-versa. In particular, the 1985 Term – during which BOWERS v. HARDWICK and THORNBURGH were decided – saw Pamela Karlan, now a professor of law at Stanford, contribute mightily to the way Blackmun thought about and explained the privacy right. It was she who successfully chided Blackmun to take out references to physicians in discussing the abortion decision in THORNBURGH, and who framed the decisional-spatial matrix that rooted – really for the first time – Blackmun’s conception of the privacy right in something other than the “Ninth Amendment or Fourteenth Amendment or whatever” approach he inaugurated in ROE (Kobylka, 2005). In so far as Blackmun’s subsequent approach to and opinions in this area worked from the base developed in BOWERS and THORNBURGH, Karlan’s impact on him was significant.

This shift in the right’s conceptualization was important and novel for Blackmun, but Greenhouse’s claim that it made him a feminist hangs on a slender thread. First, he never seriously reconsidered the standard of review that applies to sex discrimination under the Fourteenth Amendment, and reserving the possibility (in a footnote in JE.B. v. ALABAMA) of the Court’s doing so does not make it so (p.227). Second, the Court simply did not treat many pure gender discrimination cases in the last few years of his tenure. Greenhouse notes his opinion for the Court in U.A.W. v. JOHNSON CONTROLS, but that case was decided 9-0 against the company, with only Antonin Scalia not joining any of Blackmun’s analysis. She then points to his majority opinion in J.E.B (1994) striking sex-based preemptory challenges, a case in which William Rehnquist, Clarence Thomas, and Scalia dissented. That’s it. The near unanimity of JOHNSON CONTROLS and the straightforward application of BATSON v. KENTUCKY (1986) in J.E.B. suggest that Blackmun may not have traveled as far down the feminist path, outside the abortion context, as Greenhouse contends. The problem is the paucity of data; there simply are not enough cases to test this conclusion adequately. It is equally plausible that feminists, looking for bright spots on a Court dimming on many of their concerns, embraced Blackmun as one of their own more out of despair than demonstration, and that, late in life, he reveled rhetorically in that embrace.

All of this said, Greenhouse’s recounting of the abortion cases – as well as the other cases she canvasses – is thorough and insightful. Unencumbered by citations to the work of others who have mined this vein, she essentially channels Blackmun. Her approach conveys a good feel for the substantive ebb and flow of case deliberations, interspersed with quotes from draft opinions, memoranda, and materials – e.g., Blackmun’s bench memos, conference notes, in-chambers communications, and letters – that did not circulate outside his chambers. She provides a clear rendering of Blackmun’s mind as he worked through what he increasingly thought of as his area of constitutional law. Greenhouse also gives her readers a window on aspects of Blackmun’s slow march from FURMAN v. GEORGIA (1972) to CALLINS v. [*987] COLLINS (1994) and his ultimate rejection not of capital punishment itself (a la Brennan and Marshall), but of its ability to be meted out in a way that insured what he came to see as constitutional fairness. However, because of the Blackmun-centric perspective of her chronicling of the CALLINS announcement that he “shall no longer tinker with the machinery of death” (p.178), Greenhouse fails to note the legal and institutional irrelevance of this public disavowal. No mention is made of Scalia’s withering rejoinder – “He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us – the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern” – or the fact that Blackmun’s dissent had no effect on the policy he was rejecting. In a way, the dissent can be viewed metaphorically as an empty pronouncement from an increasingly detached and ineffectual Justice. This is not how Greenhouse portrays it, in part because her focus is tightly on Blackmun and not on the Court.

In BECOMING JUSTICE BLACKMUN, Linda Greenhouse reviews Blackmun’s papers with the eye of a smart and seasoned reporter with a feel for hot-button topics and the skill of a master story teller. She does not tell a general story of Blackmun’s life on the Court, but she was not really trying to do so. She does not produce a scholarly study, nor does she pointedly inform her analysis with the scholarly analysis of others. Those looking for an examination of the dynamic interplay of the Justices and the motivations that fueled their collegial project will not find it here. Nor will they find a broad canvass of the constitutional work of the Burger and early Rehnquist Courts: First Amendment issues get exceedingly short shrift, criminal law questions are glossed over, and most civil rights litigation is ignored. It is not that Greenhouse is unaware of developments in these areas of law, as her stellar reporting over most of Blackmun’s tenure makes clear. Rather, it is that these pieces of the Court’s story do not fit well into the puzzle of the particular Blackmun story that she assembles. It is not a story that lauds Blackmun for his “leftward” jurisprudential drift, though it is not one at war with it. Rather, it is more a story about elements of Blackmun’s intersection with high-profile constitutional issues during a politically contentious period framed, in part, by his decision in ROE and its fallout. In its use of Blackmun’s papers to illuminate these elements of the Court’s work, Greenhouse paints a lively and informed partial picture of Blackmun’s development on the Court. A fuller portrait of his career – and one which accounts more self-consciously for his role on and significance to the Courts on which he served – awaits future canvasses.

1. Greenhouse’s purported “liberal bias” – the underpinning of the Silberman swipe – became an issue in the summer of 2006. In receiving the Radcliffe Institute Medal at Harvard on 7 June, she made news with a speech entitled “A Bridge Over Troubled Water.” In this address, she noted “the extent to which our government had turned its energy and attention away from [*988] upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” (Greenhouse, 2006).

REFERENCES:

Garrow, David. 2004. “The Brains Behind Blackmun.” LEGAL AFFAIRS (May/June.).

Greenhouse, Linda. 2006. “A Bridge Over Troubled Waters.” Speech at Harvard University, 7 June 2006. (http://www.radcliffe.edu/alumnae/reunions/4and9/greenhouse.php).

Kobylka, Joseph. 2005. “Tales From the Blackmun Papers: A Fuller Appreciation of Harry Blackmun’s Judicial Legacy.” 70 MISSOURI LAW REVIEW 1075-1132.

Woodward, Bob, and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.

CASE REFERENCES:

BATES v. STATE BAR OF ARIZONA, 433 U.S. 350 (1977).

BATSON v. KENTUCKY, 476 U.S. 79 (1986).

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

COKER v. GEORGIA, 433 U.S. 584 (1977).

CALLINS v. COLLINS, 510 U.S. 1141 (1994).

DARDEN v. WAINWRIGHT, 473 U.S. 928 (1985).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

I.N.S. v. CHADHA, 462 U.S. 919 (1983).

J.E.B. v. ALABAMA, 511 U.S. 127 (1994).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

ROE v. WADE, 410 U.S. 113 (1973).

THORNBURGH v. AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, 476 U.S. 747 (1986).

U.A.W. v. JOHNSON CONTROLS, 499 U.S. 187 (1991).

U.S. v. NIXON, 418 U.S. 683 (1974).

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