Spinning From The Grave (Harry Blackmun's papers)

The late Harry Blackmun's papers show how he's still shaping the Supreme Court today on issues like abortion. But the cases he thought he'd closed aren't closed after all.

When the Library of Congress opened the late Justice Harry Blackmun's massive collection of papers for public inspection on March 4, two journalists already had been looking through the 1,600 cardboard boxes of documents for two months. Both are ardent fans of Blackmun and his most famous ruling—Roe v. Wade—and had been granted exclusive access at the Blackmun family's request.

The reporters—The New York Times' Linda Greenhouse and National Public Radio's Nina Totenberg—found plenty of surprises. And a Citizen investigation turned up a few more that those two missed.

Blackmun died in 1999 believing that the Supreme Court's 1992 ruling in Planned Parenthood v. Casey had rescued Roe, thus ensuring that abortion would remain a "constitutional right" for the foreseeable future. His papers shed new light on how narrow that rescue was, turning on a late flip-flop by a single member of the Court.

That spring, the justices had actually voted 5-4 in a private conference to reverse Roe and allow the states to regulate or even prohibit abortion. But later, Justice Anthony Kennedy wrote a note to Blackmun: "I need to see you as soon as you have a few free moments. I want to tell you about a new development … and at least part of what I say should come as welcome news." Formerly part of the bloc prepared to overturn Roe, Kennedy had joined with David Souter and Sandra Day O'Connor to preserve the ruling. After meeting with the three, Blackmun wrote on a pink memo pad, "Roe sound."

Blackmun's papers don't present any insight into why Kennedy changed his mind. But they illustrate the damage that can be done by a "moderate" justice like Kennedy—the sort who's susceptible to the siren song of the Court's judicial activists and who's anxious for media praise.

Over time, vacillation and susceptibility to criticism became Kennedy's pattern, much to Blackmun's delight. During that same year, Kennedy wrote the majority opinion in Lee v. Weisman—the case involving Rhode Island's policy of allowing schools to invite clergy to deliver invocations at high school graduations. Kennedy initially wrote the draft decision upholding the policy. He then looked at his own work and declared in a note to Chief Justice William Rehnquist and Blackmun, "My draft looked quite wrong."

Once again, Kennedy began shuttling paper back-and-forth with Blackmun, and with Justices John Paul Stevens and David Souter, cutting and pasting line after line to meet their demands. Blackmun tried to pull Kennedy toward the view that any expression of faith in a government-sponsored setting violates the Constitution. Kennedy had included a phrase in his draft that suggested graduation prayers were unconstitutional because a student could not "avert his eyes" and refuse to participate. In a memo to Kennedy, Blackmun insisted that he drop the phrase, because it implied that prayer might be acceptable outside a school setting. "I disagree with that suggestion," Blackmun wrote. He advised Kennedy that "it would probably be best to avoid any hint whatsoever" that the two might disagree on this point. An exasperated Kennedy pleaded with his liberal brethren to "stop the improvements," but eventually he accepted most of their edits and moved in their direction.

Blackmun left the Court in 1994, but Kennedy's transformation picked up the slack. In Romer v. Evans (1996), he wrote the majority opinion striking down a constitutional amendment approved by the people of Colorado barring special-rights laws for homosexuals. In Ashcroft v. Free Speech Coalition (2002), he wrote that the Constitution prohibited Congress from criminalizing computer-generated images of child pornography. In 2003, he took up his pen again to write the Court's opinion striking down state laws against homosexual sodomy in Lawrence v. Texas.

Blackmun's papers give some sense of what may have happened to Kennedy over the years. "When one comes to this court," Blackmun said in a post-retirement interview with a former clerk, Harold Koh, "he has to grow a little, a lot if he can." In liberal parlance, "growing" is what conservatives do when they take office in Washington, then move to the left—away from traditional values and judicial restraint, and toward "progressive" ideas (abortion rights, gay rights, etc.) more popular among the social elites in the nation's capital. Blackmun said he found his "growth" to be "a liberating experience." Kennedy may have found it equally seductive.

Regardless of Kennedy's experience, however, there's little doubt that Blackmun—long before the end of his career—found himself invested in the one issue that means most to feminists like Totenberg of NPR and Greenhouse of the Times. In the 500 pages of interview transcripts with Koh (who's the incoming dean of Yale Law School), Blackmun comes back to abortion again and again, in case after case and memo after memo.

Clearly the role of liberal hero—boldly advancing enlightened causes in the face of the backward forces of oppression—appealed to him. Blackmun told Koh that in writing Roe, he had stood up to the "combined might" of the Catholic and Mormon churches.

And with the confidence of a man who thought he represented The Future while his opponents were stuck in The Past, he had high hopes that Roe would endure. A week after the ruling, Blackmun wrote to a former colleague, a Mayo Clinic physician, "I suspect the furor [over the decisions] will die down before too long." Blackmun also replied appreciatively to a University of Pennsylvania law professor, who had written that the "beauty of the decision's thrust is that the class who otherwise would have composed the unwanted and abused will now never need to express their deep hurt and desperation."

In a private note to Supreme Court Justice Thurgood Marshall, Blackmun scorned "the forces of emotion and professed morality" that began "winning some battles" against his rulings—placing limits and conditions on his originally near-limitless concept of "abortion rights." In a case where the justices debated standards for determining viability beyond which a doctor could be held criminally liable for killing the child, he scribbled a note to himself, "More abortion, more refinement. I grow weary of this."

Paper packrat that he was, Blackmun kept every scrap of mail he received, and much of it was negative. He received tens of thousands of letters protesting Roe, more than on any other ruling. Roe also inspired picketing at his public events, within days of the ruling and for years thereafter. It moved academics, both liberal and conservative, to relentless criticism.

The summary of Blackmun's papers prepared by the Library of Congress staff says it plainly: "The justice received an enormous amount of correspondence, mostly critical, about abortion." Because of the volume, only 10 percent of these letters were preserved for the collection.

Playing the martyr, Blackmun made much of the fact that critical letters were abusive and full of name-calling. Because 90 percent of the personal mail has been discarded, Blackmun's characterization of it is impossible to disprove. Undoubtedly, many of the letter writers characterized Blackmun (as he told Koh) as a latter-day Herod, Pilate or Hitler. But Citizen found that there were many poignant and respectful critiques as well. Three folders full of correspondence in a case called J.M. v. V.C., dealing with fetal tissue, begged Blackmun to consider anew when human life begins and the need to protect it. The letters were uniformly civil and eloquent. They and others went unmentioned in Blackmun's speeches and in the first press accounts of his papers.

Blackmun closed his public life wishing more than anything that the ruling that made him a household name would be hailed, accepted and then forgotten. "It may be," he mused to Koh, "that the issue of Roe is receding into the background, particularly since the Casey case came down."

Thirty-one years later, Roe hasn't faded from memory, of course. In fact, it's been center stage in trials over the federal partial-birth abortion ban. Testimony about the gruesome procedures doctors use in these mid- and late-term abortions is all over the press. The pain babies feel when they are torn limb from limb and head from trunk is being described in The Washington Post. The Post also has described Blackmun's pro-Roe colleague William Brennan as a "bulwark of liberal activism" upon his death, but reality has continued to chip away at that bulwark.

In one sense, Blackmun's hope may come true. The 5-4 majority in Casey is now, in all probability, 6-3. Dispiriting as this possibility may be, it only underscores how great the gap between the Court and the people of the United States has become. That gap is what will ultimately determine whether acts of judicial tyranny will stand. Twelve years ago, Blackmun's papers confirm, the fate of Roe v. Wade hung by a thread. And his posthumous hope notwithstanding, it still does.

The federal courts have become the law breaking branch of the federal government. Congress can remove appelate jurisdiction of the USSC and jurisdiction of lower federal courts We the People Act(HR 3893 IH) and leave this issue with the states.

Article III, Section 2 - The Washington Times: Editorials/OP-ED In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

Justice Brennan said in 1982: "[O]bviously we Americans must accept that . . . upon judges, and particularly justices of the Supreme Court, rests a great share of the delicate responsibility of deciding what must be preserved and what must be changed, what we shall protect and what we shall abandon."- William Brennan, Address at Park School, Baltimore, Maryland (Nov. 21, 1982)
Most members of the Court seem to be gnostics, firmly believing they have access to wisdom denied the rest of us" (i.e., those citizens who are not justices on the Supreme Court). The question arises as Justice Antonin Scalia has said: "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court? . . . Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." - Robert Bork, Our Judicial Oligarchy , First Things , Nov. 1996, at 21.
The People's Constitution is no longer the "supreme law of the land" binding upon the judges, as well as the people. - Marbury v. Madison, 5 U.S. 137 (1803).
Even Justice William O. Douglas admitted late in his career that "due process, to use the vernacular, is the wildcard that can be put to such use as the judges choose." William O. Douglas, quoted in W. Forrester, Are We Ready for Truth in Judging? 63 A.B.A. J. 1212 (1977)

If the U.S. Supreme Court was intended to break as many laws as they have, why does the Constitution prohibit them from being involved in the law making process? Why did Marshall have to derive the doctrine of judicial review? Why wasn't it explicitly stated in the Constitution?
If the U.S. Supreme Court was intended to amend the Constition, why does the Constitution prohibit them from being involved in the amendment process?
If the U.S. Supreme Court was intended to enforce their own opinion, why does the Constitution leave that option with the President?
If the U.S. Supreme Court was intended to be equal to or above the written Constition, why does the Constitution state, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…. and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."

The Avalon Project : Federalist No 78 The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.

The Foundation for the National Archives states that, "The Virginia Declaration of Rights strongly influenced Thomas Jefferson in writing the first part of the Declaration of Independence. It later provided the foundation for the Bill of Rights."

The Virginia Declaration of Rights states, " That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life…."

Thomas Jefferson, in the Declaration of Independence, acknowledged the source of Rights and expressed the fundamental purpose of government: "....all Men are created equal...endowed by their Creator with...unalienable Rights, that among these are Life....to secure these Rights, Governments are instituted...."

Robert C. Cannada writing in the The National Lawyers Association Review, Winter 1996, connected the Declaration of Independence to the U.S. Constitution: "The National Lawyers Association takes the position that the practical effect of the legal connection or relationship between the Declaration and the Constitution is that the Constitution is to be interpreted in the light of the principles set forth in the Declaration.[...] The Preamble introduces and explains the purpose of The U.S. Constitution, and links it to The Declaration of Independence." The Preface to the United States Code - Annotated states that "this code is the official restatement in convenient form of the general and permanent laws of the United States in force December 7, 1925...."

The Preamble to the U.S. Constitution states," We the People of the United States, in Order to....secure the Blessings of Liberty to...our Posterity, do ordain and establish this Constitution...."

Amendment V - "No person shall be...deprived of life...without due process of law...."

In First Things, January 2003: Constitutional Persons, Robert H. Bork stated that, "Science and rational demonstration prove that a human exists from the moment of conception."

Article 3 of the U.S. Constitution provides the means for Congress to overthrow the law-breaking branch of the federal government and allow states to mend their broken laws. In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

We the People Act (HR 3893 IH) was only supported by two members of the U.S. House, and virtually unheard of, or promoted by the pro-life constituency.

It is past time to terminate the rule of broken law contained in the unconscionable and unconstitutional edicts of the U.S. Supreme court.

We the People Act needs to be reintroduced and passed by the 109th Congress and restore the rule of Law.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.