Becoming Justice Blackmun

BECOMING JUSTICE

BLACKMUN: Harry Blackmun’s

Supreme Court Journey. By Linda Greenhouse. Times Books. 268 pp. $25

Washington Post publisher Philip Graham once called journalism the “first rough draft of history.” In her book on Justice Harry Blackmun (1908–99), Linda Greenhouse of The New York Times—who has provided the best journalism out of the Supreme Court for more than 25 years—has given us, for both better and worse, a second draft.

Better: Greenhouse had early access to Blackmun’s voluminous papers, which include childhood diaries as well as Court documents. After a year immersed in the papers and in Blackmun’s 38-hour oral history, she has culled the newsworthy nuggets. There is a good bit of important history here, and Greenhouse thus achieves the goal she sets out in her prologue: “to extract from this immense collection . . . a coherent narrative of a consequential life.”

Worse: Readers expecting the insight and context that are the marks of strong biography will be disappointed. Greenhouse acknowledges that she ventured little outside the Blackmun papers. Justice Blackmun, who served on the Court from 1970 to 1994, remains enigmatic, while his contemporaries are undeveloped as characters. The lack of any notes is a shortcoming. In all, the “draft” is still rough.

Two stories lie at the heart of this book. The first is that of Roe v. Wade (1973)—in which Blackmun wrote the opinion of the Court—and the evolution of the law of abortion and gender discrimination between 1970 and 1995. Greenhouse does a superb job of laying out this evolution, and provides a number of tantalizing anecdotes along the way. Of these, the most memorable may be one that confirms many legal conservatives’ worst fantasy: Blackmun literally studied Gallup poll results while formulating his Roe opinion.

The second tale, less revealingly told, is of the relationship between Blackmun and Warren Burger, who served as chief justice from 1969 to 1986. At first referred to as the “Minnesota Twins,” the two justices came famously to disagree, as Blackmun moved steadily to the left during his years on the high court. Greenhouse charts the two men’s close friendship from childhood (they met in kindergarten) through Blackmun’s ascension from a federal appeals court to the Supreme Court—a promotion, it seems, in part engineered by Burger. Then she details the accumulation of slights Blackmun felt thereafter, and the legal disagreements he took personally. But there is no incident chronicled here in which Burger reciprocates Blackmun’s resentment, and no hint of Burger’s side of the story.

And the Blackmun of this book remains a hard man to understand. We are told that he annually marked the anniversary of the appendectomy he required at age 14, but aren’t told what to make of this. Blackmun was a stickler for accuracy—the only justice who double-checked the citations in the work of his clerks. But he also broke with Court protocol to cooperate with Bob Woodward and Scott Armstrong for their behind-the-scenes book The Brethren (1979). Blackmun was, as Greenhouse notes, “always thin-skinned,” actually recording on a list of the most significant events of 1985 a February day when “CJ [Burger] picks on me at conference.” But when Justice Anthony Kennedy, a friend, took deep offense at a gratuitous paragraph in a draft Blackmun opinion and pleaded for its removal, Blackmun changed only one word, and then grudgingly.

The Blackmun portrayed here was far more concerned with equitably doing justice in each case than with strictly interpreting the law. In the contentious debate over the role of judges in a democratic society, he clearly chose a side. Perhaps because she still covers the Court, Greenhouse seems reluctant to pass judgment on the key question her book raises: whether Blackmun’s approach is the right one or not.

—Richard J. Tofel

This article originally appeared in print

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