The Supreme Court was ready in 1992 to effectively overturn the landmark Roe v. Wade ruling legalizing abortion, but Justice Anthony M. Kennedy got cold feet, and the vote went the other way.
Internal notes in the papers of late Justice Harry A. Blackmun provide a glimpse of the secretive dealings that led to the court’s ruling in Planned Parenthood v. Casey that year. Justice Blackmun’s extensive records from 24 years on the court were made public yesterday, the fifth anniversary of his death.
Justice Blackmun’s paper legacy brought scholars and others to the vast reading room of the Library of Congress to sift through boxes containing the documents.
His voluminous files contain draft after draft of the Casey ruling with his handwritten notes in the margins, sometimes agreeing with other justices and sometimes looking for ways to change their minds. The files also contain memos from Justice Blackmun’s law clerks suggesting changes or strategies that might persuade more justices to join his views.
The justice had written the Roe ruling in 1973, and had guarded it from previous attack from conservative justices. Now the court was considering a new challenge to that ruling: a case involving a Pennsylvania law that specified certain conditions women seeking abortions must meet.
Justice Blackmun’s notes show that Chief Justice William H. Rehnquist led a five-justice majority to overrule Roe. Four other justices voting with Justice Rehnquist were Byron White, Antonin Scalia, Clarence Thomas and Kennedy. Justice Rehnquist himself was to write the majority opinion.
The Casey case was argued in April and Justice Rehnquist was at work on his majority ruling, when Justice Kennedy sent a note to Justice Blackmun. Justice Kennedy was having second thoughts, and agreed with Justices Sandra Day O’Connor and David Souter, to a compromise position.
“I need to see you as soon as you have a few free moments,” Justice Kennedy wrote. “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 picked up a pink memo pad and scribbled, “Roe Sound.”
There was nothing immediately apparent in the correspondence or other documents made public to show why Justice Kennedy changed his mind.
The Casey ruling carved out a middle ground that upheld a woman’s right to abortion largely free from state regulation.
The notes show that the court was not unaware of the case’s political implications. At one point, one of Justice Blackmun’s law clerks wrote that the three centrist justices could pay a price for disagreeing with the White House view on abortion.
The unmarried Justice Souter might lose his popularity with then-first lady Barbara Bush as her favorite “most-eligible bachelor” to invite to White House dinners, the clerk wrote.
It’s been more than a decade since intimate details of the court’s inner workings were revealed in Justice Thurgood Marshall’s papers, which elicited bitter criticism within the court because the papers include secret memos and unpublished draft opinions in controversial cases.
Most current justices are expected to ensure their files and any embarrassing secrets they might hold will be protected long after their deaths.