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Blackmun's legacy

National | COURTS: The late Supreme Court Justice Harry Blackmun is most closely identified with the sweeping abortion decision Roe vs. Wade. Five years after his death, release of his personal papers illustrates his personal devotion to Roe-and the political nature of today's judiciary

Issue: "What is art?," March 20, 2004

He was famously modest, favored cozy cardigans, took noon strolls around the building at One First Street, and drove an old Volkswagen bug to his office in Washington. As the author of Roe vs. Wade, the 1973 ruling that legalized abortion, Harry A. Blackmun was also one of the most controversial Supreme Court justices in history.

On March 4, the papers of Justice Blackmun were made available for public inspection in the reading room of the Library of Congress. Released on the fifth anniversary of his death, exactly as he'd requested, the trove of documents immediately revealed Justice Blackmun as a careful cataloger of paperwork-draft opinions, memos, letters, even notes jotted down at random. His files contained more than 530,000 items ranging from official court papers bearing the Supreme Court seal to scraps of pink memo paper. Like the papers of Justice Thurgood Marshall, released in 1993, the documents provide a glimpse into the human workings of the nation's highest court.

President Richard Nixon appointed Justice Blackmun to the bench in 1970. Three years later the newest justice would pen Roe vs. Wade, which to date has led to more than 40 million American children killed. The judge's papers reveal that he at first didn't fully comprehend the impact of Roe-"I didn't appreciate it," he wrote. But over time, he came to regard the opinion as his legacy, and jealously guarded it. Through the years, he

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faced down-or tempered-numerous cases that would have chipped away at the sweeping "right" to abortion woven in Roe.

Interviews with Justice Blackmun, tape-recorded by former law clerk Harold Koh and included in the jurist's archives, show that the abortion issue was an important factor influencing the timing of his retirement in 1994: Justice Blackmun was keenly aware that President Clinton, an abortion supporter, would name his successor.

National Right to Life Committee legislative director Douglas Johnson said the Blackmun papers "paint a picture of a group of jurists who decided that legal abortion would be good social policy, and set about to make it happen. There was no pretense of actually trying to enforce the letter or history of the Constitution. It was strictly a matter of [the justices] forcing on the nation what they thought was enlightened social policy."

For abortion opponents, the jurist's papers underscore the abortion case Planned Parenthood vs. Casey as an opportunity lost. The 1992 litigation challenged a Pennsylvania law that required women and minors seeking abortions to meet certain criteria, such as informed and parental consent. At one point during the high court's Casey deliberations, Chief Justice William Rehnquist actually held in his hand a draft of a 5-4 majority opinion, which in essence would have upheld the Pennsylvania law and overturned Roe. But a last-minute flip-flop by Justice Anthony Kennedy tipped the balance the other way.

Justice Kennedy's change of heart was reported shortly after the Casey decision came down. But Justice Blackmun's papers show that, for a time, he was certain Roe would be undone. After attorneys argued Casey in April 1992, Justice Rehnquist began crafting the majority opinion that might have helped spare millions of lives. Those voting with him were Byron White, Antonin Scalia, Clarence Thomas, and Justice Kennedy. But the latter jurist, plagued with second thoughts, in the end agreed with Justices Sandra Day O'Connor and David Souter to a compromise position, turning Justice Kennedy's opinion into a swing vote of awful moment.

Justice Blackmun saved the note Justice Kennedy sent him that day: "I need to see you as soon as you have a few free moments. I want to tell you about a new development in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news."

Justice Blackmun also retained the note he himself scrawled after receiving Justice Kennedy's overture: "Roe Sound."

Justices O'Connor and Souter-with Kennedy, all Republican appointees-moved behind the scenes to persuade Justice Kennedy to switch his allegiance, according to the Blackmun papers. Documents made public so far don't immediately reveal what made him change his mind.

Other of Justice Blackmun's writings reveal the court's awareness of the public and political implications of the Casey decision, which essentially upheld a broad right to abortion without state interference. A memo from Chief Justice Rehnquist warned clerks against media leaks during the deliberations. A law clerk wrote in a note that the three centrists on the court who voted to affirm Roe could lose favor with the Bush I White House.

With notes jotted in margins and on memo pads, Justice Blackmun also chronicled, from his viewpoint, personal undercurrents running through the court. Notes in the jurist's hand describe Chief Justice Rehnquist as displaying "judicial peevishness. In a Casey-related memo to Justice Blackmun, clerk Stephanie Dangel, now an attorney and writer in Pittsburgh, referred to the staunchly pro-life Justice Antonin Scalia as "evil Nino."

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