Becoming Justice Blackmun
by Harry Reynolds
[ bookreviews ]
In June, 1970, President Nixon appointed Harry Blackmun to the Supreme Court having been assured by Chief Justice Burger of Blackmun’s strict constructionist credentials. Independently of his right-wing glow, Blackmun had had the foresight to attend kindergarten, Sunday school, and grammar school with Burger, capping it with Blackmun’s role as best man at Burger’s wedding. It mattered little in any case. The Court had become "the apotheosis of mediocrity", a condition assured by the politicization of the appointing and confirmation process (Bernard Schwartz, Decision: How the Supreme Court Decides Cases, 256 (1996)).
Linda Greenhouse, the New York Times' Supreme Court reporter, after having trawled the 530,800 papers that Blackmun gave to the Library of Congress, among which he thoughtfully included his honeymoon receipts, has written Becoming Justice Blackmun. In prose of the finest style, she sketches in her initial pages the essentials of Blackmun's persona - a small man arisen out of a family of modest means, himself restive, insular, religious, intense, painstaking, melancholic, a world-class note writer and chronic list keeper destined to become the slowest worker on the bench, a risk avoider, honest and sensitive to slights made or imagined - she takes these facts and, illuminating them through the scrim of Blackmun’s 24 years on the Court, produces the illusion of a life created, a penetration of a personality, all of which she would not have done but for Blackmun’s writing of the Court’s opinion in Roe v. Wade, 410 US 113 (1973).
In January, 1973, the Court decided Roe upon Blackmun’s lengthy opinion holding that a Texas statute that criminalized abortion, except in the case of the saving of the mother’s life, violated a woman’s right to abortion assured to her by her right to privacy under the Due Process Clause of the Fourteenth Amendment. The right to abortion was "fundamental" and could be regulated only on the basis of a "compelling" state interest. The abortion decision during the first trimester was left to the mother and her physician. In the subsequent stage of the pregnancy, the state was allowed to regulate the abortion procedure in order to promote the health of the mother. After viability, the state could regulate and even proscribe abortion, except to preserve the life or health of the mother.
Several months after Roe, John Hart Ely, gifted scholar and pro-abortionist, published his famous article, The Wages of Crying Wolf: A Comment on Roe v. Wade (82 Yale LJ 920 (1973)) in which he eviscerated Blackmun’s reasoning to the satisfaction of virtually the entire pro-abortion academic world. In sum, Ely stated that "Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine."
Roe, though broadsided in the élite legal world, nevertheless became the most controversial Supreme Court case of the last century. It changed the last 30 years of American life and politics. By drawing lines at trimesters and viability, it acted like a legislature. Ironically, Blackmun, though but one of a majority of seven, was instantly and until his death in 1999 beatified by the pro-choice camp and vilified, cursed, picketed, and denounced by the pro-life movement. Few knew that, in his first draft opinion, Blackmun had nearly led the Court into a blunder by declaring the Texas statute unconstitutional for vagueness, having sidestepped the Court’s opinion in United States v. Uvitch that upheld an essentially similar District of Columbia statute against a claim of vagueness. In that first draft, Blackmun struck down the Texas statute not because it violated a woman’s right to abortion but because the statute’s meaning was vague and hence exposed physicians to criminal prosecutions. Upon seeing his error, he withdrew vagueness as a ground and there then ensued exchanges among the bench that provide entertainment for lawyers who relish watching the drama, chess moves, shadow boxing, political conniving and theory shopping that are sometimes hidden behind the assembling of a judicial construct bound to set off a national political and social explosion. In his second draft, Blackmun substantially wrote the Roe opinion as we have it, an opinion that seemed, at times, a cut and paste job more concerned with protecting physicians performing abortions than with women undergoing them.
As in war, so in law. If you can’t kill, maim. Over the hedge came Missouri in a failed, bizarre attempt to require a husband’s consent for an abortion except when necessary to save his wife’s life. Then a trio of high-minded cases succeeded in upholding a state’s decision not to finance abortions for poor women. Ohio hopped aboard requiring grown women to make multiple trips to clinics or physicians' offices there to enjoy informed consent procedures in which their doctors were compelled to show them pictures of fetuses in various stages of development. The husband whose consent was not required? Now he had to be notified before an abortion could take place, presumably to cheer his wife on. Denial of federal funding, except for life saving abortions, was held constitutional. If federal money was used, family planning clinics were barred from counselling patients on abortion. Missouri successfully barred abortion in public facilities and required public employees to perform extensive prenatal testing for viability. Notice to a teenager's parent who did not have veto power was upheld, but a statute requiring notice to two parents was struck. Finally, when Roe in Planned Parenthood v. Casey, 505 US 833 (1992) had a near-death experience, abortion was held no longer a right to privacy but a liberty protected by the Fourteenth Amendment. Gone was the strict scrutiny of abortion regulations now made reviewable by an "undue burden" standard. Gone was Roe's rigid trimester scheme, an unwise incursion in any event by Roe into science. Forbidden were spousal notices, but justified were informed consent, waiting period and, for teenagers, one-parent consent requirements, the latter tied to judicial bypass procedures.
Unfortunately, Ms Greenhouse does not report the startling fact, learned by this reviewer, that within 48 hours of Casey being decided, John Hart Ely, who famously flayed Roe as constitutionally indefensible, supra, sent off a letter to Justices Kennedy, O’Connor, and Souter heartily congratulating them for refusing to overrule Roe. Ely wrote that "society has indeed built up expectations on the basis of [Roe], particularly as regards the aspirations of women. And falling into a pattern whereby presidents appoint justices with the essential promise that they will overrule particular cases, and then having them dutifully proceed to do so, would weaken the Court’s authority immeasurably". Ely, On Constitutional Ground, 304 (1996).
Though Roe is the center of her book, Ms Greenhouse skillfully describes the sad deterioration of the once intimate friendship between Blackmun and Burger; Blackmun’s striking out at the death penalty ("From this day forward, I no longer shall tinker with the machinery of death."); and the beginning of the development in his thinking, triggered by sex discrimination cases, of a central core of women’s rights in which Roe is an essential but not exclusive right. It was not until I read her book that I saw and felt in a pointedly human way the dilemma of women in their struggle for their identity as persons and their equality as citizens. The mind numbing journalese that for long had glossed news reports about women's rights, the repetitive photo and television shots of women in protest, all of our insensibility to their suffering, was stirred up by this book whose singular literary character justifies Ms Greenhouse for consideration for a Pulitzer Prize. She received one in 1998, but it is not written that one cannot have Two.
