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 Origin and Scope of Roe -- Professor Douglas W. Kmiec presents letters and records of correspondence between members of the Roe court that reveal questionable motivations as well as a fundamental disrespect for normal principles of judicial restraint.

Rehnquist, "Roe V. Wade, 410 U.S. 113 (1973):

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." ^{caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113}

FT January 2003: Constitutional Persons, Robert H. Bork made the following comments about Roe v. Wade:

"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."

Two "Catholic" justices were largely responsible for Roe v. Wade.

Last figures I saw claimed that Protestants outnumbered Catholics 3:1.

Judges are appointed by those that the populace elect.

The abortion holocaust was originated, and is sustained by apostate protestants who could care less.

Jesus, in Matthew 19:18 reiterated Deuteronomy 5:17 "You must not murder," and that Paul stated in Romans 13:3 "For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: 13:4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. 13:5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake."

Jefferson & Paul agree that the fundamental purpose of government is to secure rights granted by God by punishing evil and it does 'outside the abortion context.'

The laws of the 30 states that recognize the unlawful killing of an unborn child as homicide in at least some circumstances. ^{State Unborn Victim Laws}
State: Homicide laws of all 50 states protect human life and the dignity of every human being--especially the vulnerable; laws of many states already specifically protect vulnerable embryonic human beings outside the womb; most prohibit destructive human embryo and human fetal research. National: The present Congressional ban on federally-funded human embryo research explicitly excludes "research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death"; existing laws requiring separation between the death of an unborn child in abortion and research objectives using the unborn child's tissues preclude the destruction of human embryos as a means of achieving research objectives. International: Documents such as the Nuremburg Code, the World Medical Association's Declaration of Helsinki, and the United Nations Declaration of Human Rights reject the use of human beings in experimental research without their informed consent and permit research on incompetent subjects only if there is a legal surrogate, minimal risk, and therapeutic benefit for the human subject. ^{stemcellresearch.org - Founding Statement}
It may strike some as surprising that legal protection of embryonic human beings can co-exist with the U.S. Supreme Court's 1973 legalization of abortion.²⁹ However, the Supreme Court has never prevented the government from protecting prenatal life outside the abortion context,³⁰ and public sentiment also seems even more opposed to government funding of embryo experimentation than to the funding of abortion.³¹ The laws of a number of states-including Louisiana, Maine, Massachusetts, Michigan, Minnesota, Pennsylvania, Rhode Island, and Utah-specifically protect embryonic human beings outside the womb. Most of these provisions prohibit experiments on embryos outside the womb.³² ^{CBHD: On Human Embryos and Stem Cell Research}

Abortion is Shedding of Innocent Blood. Abortion is the shedding of innocent blood. The blood of an unborn child is separate from that of its mother at 21days gestation and is a person from conception (Luke 1:42-43). As you know, killing such a child violates God's laws in the Decalogue (Exodus 20:13). God hates such killing (Proverbs 6:16-17) and it defiles the land (Numbers35:33). God is personally pledged to avenge the shedding of innocent blood (Deuteronomy 32:43).

National Responsibility and Judgment. For shedding of innocent blood in Israel God brought a series of escalating judgments culminating in the Babylonian captivity in 586 B.C. (Psalm 106:36-43; Jeremiah 33:35,36) and, according to Jesus (Matthew 23:34,35; Luke 11:49-51), the life for life judgment and total destruction of Jerusalem in 70 A.D. To the idolatry of Israel involving child sacrifice to Baal and Molech in exchange for material wealth and to celebrate sexual promiscuity, we have added an idol of convenience. As it did in the slavery debate, the nation not only permits the individual to commit an abortion in sin, it affords Constitutional protection and the full force of federal and state government to protect the activity-and in many instances taxpayer funds to pay for it.

Individual, Corporate, and Leadership Responsibility. Each person responsible for an abortion is under a life for life judgment (Genesis 9:6; Numbers 35:31) and their entire family falls under judgment as well (Leviticus 20:4,5). There is also a collective responsibility that each person has for all abortions. The answer to Cain's question,"Am I my brother's keeper?" is found in Genesis 9:5: "And from each man will I demand an accounting for the life of his fellow man." In God's judgment of Israel in 586 B.C., He held responsible the national leaders (Zephaniah 1:7,8), the prophets and priests (Lamentations 3:12,13), elders (Ezekiel 9:4-6), and complacent men (Zephaniah 1:12).

The Declaration of Independence is an Instrument of Judgment. The "Equal Creation" principles in the Declaration of Independence were the cry of the anti-slavery crusade for 30 years. Today most evangelical leaders and many presidential candidates reference the same document and the Creator's "endowment of unalienable rights" in the fight against big government and abortion rights. What they fail to mention is that this document is also an instrument of judgment. They overlook its "execution" provisions. In its first paragraph, the very existence of the nation is pinned to the "laws of nature and nature's God." For Jefferson's contemporaries, this phrase meant the Romans 2:15 law written on every man's heart, whether Christian or not, as tested by the Christian Bible. After a detailed list of the sins of the government of King George III by implication in violation of these laws, the document declares that " all political connection between [the colonial states] and the state of Great Britain, is and ought to be totally dissolved." In Matthew 7:1, Jesus tells us that in the same manner and measure that we judge others, we will receive judgment ourselves. Judgment upon America in the same manner and measure mandates a dissolution - the natural consequence of violating God's laws on which her formation was premised. ^{Abortion as "Shedding Innocent Blood" & Lessons Toward Repentance ...}

The protestants have the numbers to end mass murder and they refuse to do it. There are atheists who are pro-life Some Information on LFL, but they don't have the numbers.

My fellow Protestants reject the Torah, Jesus, Jefferson, the Constitution and plain common sense while singing God Bless American and pledging allegiance to the Flag…no longer under God.

Hugo Black-seemed to be black hearted Communist to the core

Writing for the Court, Mr. Justice Black stated: "The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, commands that a state `shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .'" [. Id. at 8 (citation omitted).] In Everson, the Court also penned the infamous phrase that has been used to pervert the meaning of the Religion Clauses: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach." [. Id . at 18 (emphasis added). While neither the words nor the concept of "separation of church and state" appears in our Constitution, those words and ideas do appear in the Constitutions of the former communist Soviet regimes. See U.S.S.R. Const. adopted July 10, 1918, art. Two, ch. 5, § 13 "For the purpose of securing to the workers real freedom of conscience, the church is to be separated from the state and the school from the church , and the right of religious and antireligious propaganda is accorded to every citizen.") (em phasis added); and U.S.S.R. Const. adopted Dec. 5, 1936, ch. 10, art. 124 ("In order to ensure to citizens freedom of conscience, the church in the U.S.S.R. is separated from the state, and the school from the church . Freedom of religious worship and freedom of an ti-religious propa ganda are recog nized for all citizens." (em phasis added)). Eleven years after the U.S.S.R. Constitution of 1936 wrote the "separation of church and state" into the text of the Soviet Constitution, the United States Supreme Court held that our Constitution command ed the same philosophy and then wrote that phrase on the minds of the American people. See Everson , 330 U.S. at 18.] It is surprising how many citizens, including lawyers, believe that the phrase "wall of separation between church and state" is in the text of our Constitution. ^{The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998).}

Adamson v. California (No. 102) MR. JUSTICE FRANKFURTER, concurring, Demolished the "incorporation doctrine."

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