The Conservative as Liberal

Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey by Linda Greenhouse (Times Books, 258 pages, $25.00)

The day that former president Lyndon Johnson died, January 22, 1973, Justice Harry Blackmun announced the Supreme Court's 7-to-2 decision in Roe v. Wade, legalizing abortion throughout the nation. The media led with Johnson's passing, while Blackmun, in his diary, noted “abortion flak,” including protests from three cardinals and the Vatican. Picketers and police protection greeted him the next day in Cedar Rapids, Iowa. As Linda Greenhouse notes in her perceptive portrayal of Blackmun's career, “the rest of Harry Blackmun's life had begun” -- as did our abortion wars.

Supreme Court opinions are collaborative in nature (7 to 2 is an impressive consensus), but as Blackmun's once-comfortable majority dwindled, he increasingly personified the ruling. Militant opponents inundated him with tens of thousands of letters denouncing him as a baby-killer. He confided to a Catholic priest and longtime friend, “It is hard to believe that some clergymen and sisters can indulge in such abuse and still profess to be workers in the vineyard.”

Blackmun left a prodigious amount of documentary material, and Greenhouse has used it with rare intelligence. She excavates a flesh-and-blood character from Blackmun's published opinions, a lengthy oral interview, case files, correspondence, and fragmentary notes that amply reveal his personality and the workings of his mind. Greenhouse offers us a nuanced account of the impact of Roe v. Wade within the Court and a clear understanding of Blackmun's long journey to the rejection of the death penalty. The papers also provide a probing revelation of the half-century relationship between Blackmun and Chief Justice Warren Burger, its deterioration, and its significance -- for both the men and the Court they served.

Supreme Court justices have often disappointed their patrons. The judiciary's extraordinary independence, providing insulation from political reprisal, affords a rare opportunity for intellectual candor and honesty in a public position -- just as the Framers intended. After the lame-duck John Adams named John Marshall chief justice in 1801, the newly elected Thomas Jefferson complained that the Federalists had retreated to the judiciary to batter down the works of republicanism. He vowed to name his own ideological soul mates. Jefferson had three appointees, but all proved ideologically compatible with Marshall. President Theodore Roosevelt named Oliver Wendell Holmes in 1902, and the next year Holmes dissented in Roosevelt's first trust-busting case. Franklin Delano Roosevelt had nine appointees, and yet the Court found itself divided by often acrimonious discord and dissension. Dwight Eisenhower lamented that choosing Earl Warren was his worst decision. Like so many others, Blackmun will be remembered as a judge appointed in a president's own image, but through the years he used his independence and intellect to evolve in wholly unanticipated ways.

Nominees today are vetted with everything but a saliva test. Unlike in the past, it has become virtually axiomatic that Supreme Court nominees have previous judicial experience, as if their earlier positions were audition camps. The number of unanticipated surprises is likely to diminish. Appellate judges, with their independence, establish track records less likely to be altered when they enter the “marble palace.”

Following the Senate's rejection of his first two choices for the Court in 1970, Richard Nixon trumpeted Blackmun as a judge with a “strict construction” philosophy. Strict construction has been code language for reactionary objectives from its first appearance with Jefferson's abortive attempt to prevent the establishment of a central bank in 1792, through the convolutions of southern apologists for slavery and segregation, down to the present. In practice, the Court has to give a broad construction to the Framers' language to ensure a “living Constitution.”

Ironically, Nixon had condemned strict construction in 1962, blaming it for the Court's enforcement of the anti-establishment clause of the First Amendment in a New York school-prayer case. But seven years later, our serial political opportunist -- now anxious to appeal to Americans alienated by judicial rulings on racial equality, church-state separation, and the rights of the accused -- revived strict construction.

Blackmun's record as an appellate judge proved quite solid, albeit somewhat pedestrian, and his Senate hearing lasted less than four hours, during which he assured the Judiciary Committee that he would not hesitate to disagree with his boyhood friend, now Chief Justice Burger. There were no hostile witnesses, and the Senate unanimously confirmed him, 94 to 0. Blackmun was 61. His mother warned him that his relationship with Burger would inevitably change. Mothers know best.

Then–Assistant Attorney General William Rehnquist had ably and perceptively reviewed Blackmun's judicial record. “He does not uniformly come out on one side or the other, though his tendencies are certainly more in the conservative direction than in the liberal,” Rehnquist wrote. “His opinions are all carefully reasoned, and give no indication of a preconceived bias in one direction or the other.”

When Nixon's press secretary described Blackmun as a strict constructionist, the judge responded that he did not work according to labels but “tried to call them as I see them.” Undoubtedly he saw himself as an advocate of “judicial restraint,” a term flexible enough to accommodate a broad array of justices across the political and legal spectrum, from Hugo Black to Black's great antagonist, Felix Frankfurter. It used to be axiomatic that justices defied easy pigeonholing. The Washington Post presciently commented that Blackmun's “opinions and reputation indicate that he is a conservative with an independent mind and sensitivity to new ideas.”

Blackmun ended his career in 1994, lauded and vilified as the most “liberal” of the justices, but its beginnings certainly did not point in that direction. His earliest opinions were undramatic and workmanlike; most notably, he sided with the government in the Pentagon Papers case, and appeared very much as Burger's close ally.

When Burger became chief justice in 1969, Blackmun told him, “[M]y support is yours for the asking at all times.” He told FBI agents investigating Burger's background, “[D]on't assume that his attitude will be the opposite of Mr. Warren's.” He insisted that Burger's politics had been “in the liberal tradition and not in the conservative tradition. His era will not be a status quo one. He will incur criticism and opposition not unlike that of Chief Justice Warren but of a different kind.” Maybe the source of the rift was that Blackmun discovered he really did not know his old friend.

Greenhouse understands that ideology alone does not explain their eventual estrangement. Blackmun and Rehnquist always maintained cordial relations, as Blackmun did with every other justice. As for Burger, Blackmun wrote, “I do not know what he expected, but surely he could not have anticipated that I would be an ideological clone.” After several years, Blackmun no longer viewed the chief justice as his boyhood friend, but instead found himself at odds with a vain, petty, and embittered colleague. Substantial professional differences certainly made the rift more than personal: Burger's shadowy role attempting to avoid a direct confrontation with the president in U.S. v. Nixon; disagreements about affirmative action; and, most important, Burger's steady retreat from Roe.

Blackmun voted with Burger in nearly 88 percent of closely divided cases in the first five years, but in the next five, he joined with the more liberal William Brennan nearly 55 percent of the time, while his agreement with Burger fell to almost 46 percent. In the next five years, the figures shifted to nearly 70 percent with Brennan and only 32 percent with Burger. From 1986–90, his votes with Brennan and Thurgood Marshall increased to more than 95 percent. And thus the journey for the “protégé” of Nixon and Burger -- an unanticipated journey, by any measure.

Blackmun surrounded himself with able law clerks, many of whom prodded him to new paths, and he confronted strong, opinionated colleagues, including Rehnquist, Brennan, and Lewis Powell. Greenhouse's work with Blackmun's papers, however, reveals a man charting and always in command of his own direction throughout his tenure. He used his independence to foster his own development. When asked if the assignment of Roe was good or bad luck, Blackmun thought it fortunate, for he understood what his evolution really was about. “I think one grows in controversy,” he said. He realized “it was not the fortuities themselves, but the responses they evoked from him, that shaped his life,” Greenhouse concludes. “He became Justice Harry Blackmun.”

Stanley I. Kutler is the author of The Wars of Watergate.