May|June 2005




FEW SUPREME COURT JUSTICES HAVE BEEN VILIFIED as judicial activists the way Harry Blackmun was. In conservative lore, he manufactured a radical, undemocratic regime of abortion rights based on a flimsy foundation of "penumbras" and "emanations." Now we have his previously private files—1,600 boxes of notes, draft opinions, and more—which New York Times reporter Linda Greenhouse has sifted through for her new book, Becoming Justice Blackmun. The results reveal that Blackmun was every bit the activist his enemies imagined, but that his agenda in Roe v. Wade and during the decade afterward was hardly liberal. Judicial activism and liberalism, in this instance, were two different things.

Blackmun's files show how thoroughly his thinking about Roe and its companion case, Doe v. Bolton, changed and expanded in the year between initial oral arguments and the court's rulings. His first draft of Roe dismissed the law in question, a Texas abortion ban, as too vague. In pre-argument notes for Doe, he wrote that another abortion ban, one with limited exceptions, was "pretty good and strikes a good balance of the asserted interests."

The idea of a broader right to abortion bubbled up from lower courts, propelled by result-oriented arguments that seemed indifferent to how they were supported by the Constitution. The Georgia district court that had decided Doe before the case reached the Supreme Court cited both the "retained by the people" clause and the "penumbras" underlying the right to privacy. "For whichever reason, the concept of personal liberty embodies a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy," the court said.

Blackmun's notes convey the same casual attitude. He began with intuition and then looked for a constitutional peg. "Right of the mother to life, health, physical & mental," he wrote in October 1972. "Translated this means 9th and 14th amendment rights." In his notes, he posited an abortion right similar to the right to contraception, then conceded the difference between the two acts, but shrugged, "Whatever the answer, something fundamental is involved. [There's] much precedent for this sort of thing—Griswold, etc." In his final draft of Roe, he concluded that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty [or] . . . the Ninth Amendment's reservation of rights to the people, is broad enough to encompass" abortion. Fourteenth, Ninth, etc., this sort of thing, something fundamental, whatever.

Part of the "etc." Blackmun invoked as precedent was Eisenstadt v. Baird, the 1972 decision that extended the right to contraception to single people. This was a sham, however: The justices designed the precedent to suit the progeny. Justice William Brennan's draft of Eisenstadt, which was circulated months after oral arguments in Roe, "was obviously crafted to apply in the abortion context," Greenhouse writes, noting that Brennan made the unnecessary assertion in Eisenstadt that the right to privacy entailed a right to choose whether to "bear" a child. Days after the court handed down Eisenstadt, Blackmun worked a reference to it into a draft of Doe, and later into Roe. Meanwhile, a federal court in Connecticut took the cue, declaring that Eisenstadt established a right to abortion. Justice Lewis Powell advised Blackmun to follow the Connecticut court's reasoning, and Blackmun ultimately did so, completing the daisy chain.

BLACKMUN'S PAPERS VINDICATE EVERY INDICTMENT of Roe: invention, overreach, arbitrariness, textual indifference. But they also implicate his critics. In a 1970 letter, Chief Justice Warren Burger lectured Blackmun about the evils of injecting personal morality into constitutional law. A year later, though, Burger prodded his colleagues to expand Roe or Doe to address the rights of would-be fathers. In December 1972, when Blackmun asked the other justices to comment on his trimester framework, Burger ignored the request and brought up the question of fathers again. Blackmun fended him off with a footnote pointing out that no law or litigant in either case had raised the question. This didn't stop Burger from resuming the lecture: When Blackmun drafted a decision-day announcement that the justices "have endeavored, too, to note the changes in attitudes" toward abortion among medical organizations, Burger wrote in the margin, "We ought not to look for it!" Burger edited the sentence to read, "We cannot escape noting, too . . ." Judicial restraint turns out to be less a principle than a pose.

The justices were hardly oblivious to politics. Greenhouse finds a 1972 poll in Blackmun's files showing majority support for the right to abortion when the question was framed in terms of a woman and her doctor. She also discovers the results of the court's 1992 Electoral College office pool. Justice Sandra Day O'Connor captured an $18 jackpot; Blackmun came in second. While still on the bench, Blackmun later wrote an enthusiastic letter to the winner he picked, Bill Clinton.

If the sin of activism goes both ways, so does the hypocrisy about it. In 1986, having denied to a friend that Roe reflected his moral views on abortion, Blackmun dismissed O'Connor's opinion in Thornburgh v. American College of Obstetricians and Gynecologists with the comment, "She is just against abortion"—as though she was presumptively guilty of imposing her values but he was not. The man who had declared a right to abortion in Roe after writing that the case required no such boldness then scolded the United States solicitor general in Thornburgh for challenging Roe when neither party had requested such boldness.

The most flagrant hypocrisy concerns political timing. In 1973, Blackmun fumed under the suspicion that Burger was delaying Roe to avoid embarrassing President Richard Nixon before his second inauguration. But in 1992, Blackmun used his concurrence in Planned Parenthood v. Casey to warn women that the election might decide Roe's fate. Blackmun's clerks urged him to rush the case through so that it could be decided "before the election," giving "women the opportunity to vote their outrage." Meanwhile, they drafted a statement for him to deliver if the other justices voted not to proceed with such haste. The statement read: "I feel that this Court stands less tall when it defers decision for political reasons."

SO BLACKMUN PLAYED POLITICS. But what were his politics in Roe and the years that followed? Was he a feminist crusader? Or was he, as his files suggest, more of an old-fashioned conservative? At his retirement ceremony two decades after Roe, Blackmun portrayed the case as a pioneering advance in a difficult climate, "a step that had to be taken as we go down the road toward the full emancipation of women." Certainly the climate in Roe's day was difficult: Men dominated legal scholarship, and anxiety about feminism was rising. During the court's deliberations, President Nixon condemned "abortion on demand." Burger, who was preoccupied with fathers' rights, echoed Nixon in a concurrence insisting that Roe didn't require abortion on demand. Greenhouse interprets Nixon's remark as a gesture to pro-lifers, but phrases such as "on demand" and "for convenience" sent a more precise message: that women should not have too much control when deciding whether to have abortions.

How could a right to abortion be established in such a climate? By emphasizing the supervisory role of doctors. That was the headline of the poll found in Blackmun's files: "ABORTION SEEN UP TO WOMAN, DOCTOR." It was also the implicit advice of the moderate Powell and the wily Brennan. Powell urged Blackmun to frame abortion as "a medical problem broadly defined," and Brennan proposed to strike down the Georgia law because it "overrides a good faith determination by the attending M.D." A male clerk of Blackmun's at the time advised the justice that he would be most likely to succeed if he reasoned "not that the woman's right is so strong but that to permit other criteria in these statutes [other than the doctor's view of the best course for the patient] is in the end to restrict medical judgment about what is best for each woman."

Did these external constraints force Roe's emphasis on doctors rather than women? That's what Blackmun told himself later. Greenhouse finds in Blackmun's files a 1993 article excerpting a lecture in which Ruth Bader Ginsburg, then an appellate judge, faulted Roe's focus on doctors. On the article, Blackmun had penned, "She picks at Roe. Better to have been decided on equal protection. With all respect, could not have been done."

Maybe that's so, but in his early notes and drafts, Blackmun, who had once been the Mayo Clinic's general counsel, saw Roe and Doe as medical discretion cases all the way. That is why he assessed the Georgia law, which subjected abortion decisions to the approval of three doctors and a hospital committee, as "a good balance of the asserted interests." It is also why he preferred to decide Roe on the grounds that the law in question was vague. His first draft rejected the Texas law as "insufficiently informative to the physician . . . who must measure its indefinite meaning at the risk of his liberty."

Even after Blackmun shifted toward a privacy rationale—in Doe in May 1972, and in Roe five months later—his focus remained on the doctor. His outline of a revised Roe opinion posited, "A fundamental personal liberty is involved here—right to receive medical care." His final draft insisted that early in pregnancy, "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."

IT'S HARD TO IMAGINE THE EARLY BLACKMUN approaching Roe from the standpoint of sexual equality. He jotted down the attire of female lawyers who argued before the court. In a 1971 memo, he dismissed Reed v. Reed, a case about overt sex bias in estate administration, as "much ado about nothing." He complained that Ginsburg's brief in that case, filed when she was a law professor at Rutgers University, was "filled with emotion" about the oppression of women. "I would hope that we do not get into a long and emotional discussion about women's rights," he told his fellow justices. In 1972, preparing for re-arguments in Roe and Doe, Blackmun wrote, "No absolute right to do with body as one chooses."

Greenhouse thinks that as the years went by, Blackmun came to understand and appreciate feminism. In 1975, he rejected the assumption that girls were "destined solely for the home" rather than "the marketplace and the world of ideas." In 1976, he parted with Burger, ruling that a married woman could not be required to get her husband's consent before having an abortion. And in the 1977 abortion funding cases, he accused his colleagues of libertarian indifference to "the individual woman concerned, indigent and financially helpless."

Greenhouse cites such opinions as evidence of a foxhole conversion. Roe "would open him to new ideas," she writes. But the evidence that his ideas changed in the 1970s is dubious. The 1975 case was unusually egregious: It involved state-ordered financial discrimination, based on the supposition that boys but not girls required preparation for careers. In the spousal consent case, Blackmun brushed off a brief that presented what he called "the extreme on the female side." In the abortion funding cases, he talked about class, not sex.

Other cases show how little Blackmun changed. In 1973, he refused to categorize pregnancy discrimination as sex discrimination or to designate women as a suspect class, deserving of particular legal protection akin to what the law gave blacks and members of other minority groups. In 1975, he said that the court should leave to Congress any reform of sex-based differences in survivors' benefits, writing "That is where it belongs really if changing times are equalizing incomes." In 1976, Blackmun was still taking notes on what female lawyers wore—in one case, his future colleague Ginsburg. And in 1981, Blackmun rejected a female clerk's advice to side with a lower court against a single-sex nursing program. He wrote, "I have come to suspect that it is easy to go too far with rigid rules in this area of claimed sex discrimination, and to lose—indeed destroy—values that mean much to some people."

Not until 1986 did Blackmun's voting record turn measurably to the left. He sided with Brennan and Marshall about 75 percent in the 1981-85 terms and about 95 percent in the 1986-90 terms. That coincides with Blackmun's shift to feminist rhetoric in Thornburgh (1986), Webster v. Reproductive Health Services (1989), and Casey (1992). What happened? The files are silent. Greenhouse finds a picture of Blackmun surrounded by the women of his family. She retells his daughter's story of an unintended pregnancy that ended in marriage, miscarriage, and divorce. But nothing connects any of it to Blackmun's jurisprudence.

Greenhouse compares her investigation to "plunging down a rabbit hole into a separate world, so different from the surface." But when she gets to Blackmun's mind, all she finds is surface. He recorded other justices' remarks at the first conference on Roe and Doe, but not his own. He kept a "chronology of significant events" that reveals nothing about significant events. He asked his wife and daughters what they thought of abortion, but all he said after hearing them out was, "I think I'll go lie down. I'm getting a headache."

Maybe Blackmun had a foxhole conversion. Or maybe he got something more like post-traumatic stress disorder. Maybe the conservative assault on Roe, which became a serious threat with Thornburgh and the appointments of Justices Antonin Scalia and Anthony Kennedy, made Blackmun not wiser but angrier. That's when his notes and dissents turned caustic. That's when he started grumbling about a Reagan "cabal" of justices, accusing the administration of "a personal attack on me," and blasting his colleagues in Rust v. Sullivan. By 1992, Blackmun was so bitter he couldn't see Roe's salvation in the emerging moderate bloc of Justices Kennedy, O'Connor, and David Souter. It was Justice John Paul Stevens who warned Blackmun in 1991 not to alienate the moderates and who ultimately negotiated with them to save Roe in 1992. In the biggest political coup of his career, Blackmun was where the critics of his judicial activism said he always should have been: out of the politics and out of the action.