- The Washington Times - Saturday, June 25, 2005

BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY

By Linda Greenhouse

Henry Holt/Times, $25,

251 pages

REVIEWED BY JOHN GREENYA

Concerning the main players in the three branches of our government, we know least about the members of the judiciary. Compared to President Bush or Congressman Tom Delay, what do we really know about the individual justices of the Supreme Court? Oh, we know that the chief justice has a serious medical problem, and that Justice Scalia can be a bit cranky, but let’s face it, even Ken Jennings would have trouble naming all nine before the buzzer sounded.

So, Linda Greenhouse’s “Becoming Justice Blackmun” is as welcome as it is interesting, and it is very interesting on several levels, but especially that of human interest. There have been pull-back-the-veil books on the high court before. Scott Armstrong’s and Bob Woodward’s “The Brethren” and former clerk Edward Lazarus’ “Closed Chamber” (which earned him many tsk-tsks for telling tales out of court) come readily to mind.

And there have been many books about members of the Supreme Court, as well as by individual justices themselves. Chief Justice Rehnquist writes legal histories, Sandra Day O’Connor personal ones and Clarence Thomas’ autobiography is supposed to come out this year. But “Becoming Justice Blackmun” doesn’t fit in any of those categories, nor is it at all gossipy or even cheeky. Instead, it’s a kind and careful recounting of the evolution of a kind and careful man, intertwined with the story of the dissolution of one of his oldest and most cherished friendships.

Ms. Greenhouse, the Pulitzer Prize-winning reporter who has covered the Supreme Court for The New York Times for the last 27 years, knows an opportunity when she sees one (or as a friend of mine from Texas calls it, a bird’s nest on the ground) and she saw one in the fact that Justice Blackmun, who died in 1999, left all his papers, personal as well as professional, to the Library of Congress. Blessed with a two month head start granted her by Blackmun’s family so she could write a series of articles on the papers for the Times, Ms. Greenhouse dug in with a relish that anyone who has ever written about the court could identify with — and envy. After the series ran, she was approached by the publisher, and the result is this fascinating volume.

“Becoming Justice Blackmun,” she writes in the Prologue, “… is neither a conventional biography nor a comprehensive survey of a judicial career … . Instead, my goal was to extract from this immense collection — from childhood diaries, personal correspondence, internal Court memos, and drafts of opinions, as well as the transcript of a thirty-eight hour oral history — a coherent narrative of a consequential life that spanned the decades of the twentieth century and left its mark not only on the law but on American society.”

Two of the “veins” in what Ms. Greenhouse describes as “a huge open-face mine in which seams of precious metals were visible, running in various directions” were Blackmun’s historic 1973 decision in Roe v. Wade and his friendship since boyhood with Warren E. Burger, chief justice from 1969 to 1986, with whom he eventually had a falling out. As Ms. Greenhouse points out, Burger’s papers are closed to the public until 2026, thus “… anyone seeking to understand Burger’s life and career will of necessity turn to the Blackmun collection. Its trove of correspondence between the two men stretches over more than sixty years of a relationship that would seem unlikely if depicted in a novel.” The other veins she chose to mine are the death penalty and discrimination based on gender, but the book also contains a good deal of information regarding Blackmun’s approach to affirmative action.

Born on Nov. 12, 1908, Harry A. Blackmun attended public schools in St. Paul — he met Warren Burger in kindergarten at Van Buren School — and graduated from high school at 16. Young Harry would have attended the University of Minnesota but two of his teachers recommended him for the single scholarship awarded each year by the Harvard Club of Minnesota. Blackmun won, and “… left home on a sixteen-berth sleeping car bound for Chicago, the furthest east he had ever been… .” Harvard Law followed Harvard College, and the young lawyer returned to St. Paul, eventually joining a firm where one of his clients was the Mayo Clinic, which he later joined as “resident counsel.”

In later life, Blackmun would often refer to the nine years he spent there as the happiest period of his life. In the meantime, Warren Burger had been in Washington for several years as a lawyer with the Department of Justice, a reward for his work in Minnesota on behalf of Dwight Eisenhower’s successful run for the presidency in 1952. From the beginning of his time in Washington, Burger tried to arrange things so his close friend (and best man at his wedding) Harry could join him there. Four years after his arrival in Washington, Burger was rewarded with a seat on the prestigious U.S. Court of Appeals for the District of Columbia Circuit.

In 1959, Blackmun also became a federal appeals court judge, but in the Eighth Circuit, not Washington, D.C. Ten years later, they were both on the Supreme Court, where pundits immediately dubbed them “the Minnesota Twins,” in the mistaken belief that Blackmun would vote in lockstep with his close friend and fellow Republican.

It may have begun that way, but, as Ms. Greenhouse spends a good deal of the book pointing out, that didn’t last for long. By the end of Blackmun’s tenure he was voting with the liberal William Brennan and Thurgood Marshall almost all the time (an average of 96 percent from 1986-1990). Given the Supreme Court’s well-known penchant for privacy, one of the many pleasures of this book is the light it sheds — thanks to Blackmun’s comments in such different locations as his diary and Supreme Court note pads — on his fellow justices, both professional and personal. For example, when future justice Ruth Bader Ginsberg appeared before the court for the fifth time, he noted, “In red & ribbon today.”

Most dramatic, however, is the unfolding of Justice Blackmun’s view of abortion, which changed from an initial feeling that it was as much the doctor’s right as that of his patient to a wholehearted embrace of abortion as a constitutional right of the woman.

Most people know Harry Blackmun as the author of Roe v. Wade, but he also took part in such famous cases as the Nixon tapes, the Pentagon Papers, Bakke v. Regents of the University of California, the reverse discrimination case, and Planned Parenthood v. Casey, which almost overturned Roe. What Ms. Greenhouse does so very well is to give us, by showing rather than telling, the man behind these historic decisions. And while there are times when her prose too closely mirrors that of a Supreme Court opinion and passages that provide way too much inside baseball, the overall impact of the book is both informative and moving.

I was surprised by a couple of things. For one, she makes the influence of the justices’ law clerks, both in legal theory and the wording of draft opinions, seem greater than I had thought to be the case. For another, the degree of politeness shown by justices toward one another when they are in total disagreement is rather amazing, and wonderfully old-fashioned.

Very impressive, and sad, is the recounting, in Blackmun’s own written words, of the break-up of his friendship with Warren Burger. On June 25, 1995, all Blackmun noted in the “chronology of significant events” he kept throughout his adult life, was: “W E B dies.” “Becoming Justice Blackmun” ends with these sentences: “Warren Burger could never have suspected that in turning to his reliable friend for one unwelcome assignment [the majority opinion in Roe v. Wade], he was launching Blackmun on a journey that would open him to new ideas and take him far from their common shore of shared assumptions. Burger sent Blackmun into dangerous waters without a life preserver, and then turned aside. But Blackmun kept swimming. In defending his legacy, he created his legacy. He became Justice Harry Blackmun.”

John Greenya is the author of “Silent Justice: The Clarence Thomas Story.”


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