The Trouble With Harry

How we interpret the past.
May 19 2005 12:12 PM

The Trouble With Harry

A new biography of Blackmun fails to do the Supreme Court justice.

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Justice Harry A. Blackmun, a quirky but pivotal member of the Supreme Court for 24 years, was a hoarder. He seems to have kept everything from his boyhood diaries to college correspondence to every scrap of paper that came his way on the Supreme Court. He also was Bob Graham-like in jotting down a wide range of daily observations—he regularly recorded news events, reactions to opinion drafts and court conversations, and perceived slights.

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In Becoming Justice Blackmun, Linda Greenhouse, the New York Times' Supreme Court reporter since 1978, emphasizes her reliance on the Blackmun papers and candidly announces that she made no effort to reconcile conflicting accounts by other justices. (She rarely even acknowledges them.) She undertook minimal review of other pertinent material and conducted no interviews. The result is a highly skewed account of Blackmun's tenure—skewed not just because it is only Blackmun's perspective that is revealed (or, more accurately, the perspective that emerges from the shards of Blackmun's notes and papers), but also because her work overemphasizes minutiae such as law-clerk memos and Blackmun's edits of opinion drafts. Greenhouse explains that she is not writing a "conventional biography," but merely giving Blackmun's perspective. Yet she also wants the papers to tell "the story" of "the Court on which he served." Unfortunately, the myopic focus on the papers, fascinating as they are, leads to a distorted perspective of the court and Blackmun's role on it.

The problem is fundamental. The best accounts of Supreme Court justices, such as the recent biography of Justice Wiley Rutledge by John Ferren, craft a convincing depiction of an individual's role in an institution characterized by clashing perspectives; they involve extensive research of all available sources to create as objective a picture as they can of the complicated dynamic among nine opinionated individuals. The strange alchemy of individual independence and group dependence, of daily dramas and life tenure, requires the consideration of multiple perspectives. Oliver Wendell Holmes famously described the court as "nine scorpions in a bottle." Greenhouse has presented one scorpion's very particular view—but it should not be taken as an accurate view of the bottle.

Blackmun's legacy as a justice is uncertain at best. Although one would not know it from Greenhouse's book, he possessed neither the persuasive skills of a William Brennan nor the analytical skills of a John Paul Stevens. (Full disclosure: I clerked for Stevens.) Such skills are necessary to have a far-reaching impact on the court. Of course, every justice possesses significant power with his or her vote. But Blackmun lacked the additional firepower to forge an influential jurisprudence, one that would reach beyond the power of his vote. Greenhouse never tackles this question or offers her readers the tools for making or disputing such a judgment.

Greenhouse is at her best in relating Blackmun's lifelong relationship with Chief Justice Warren E. Burger. Their relationship is the stuff of a novel, and it is a tale for which Blackmun's subjective jottings and files are especially revealing. The two were boyhood friends in Dayton's Bluffs, a neighborhood in St. Paul, Minn. * Blackmun was the best man at Burger's wedding, and they stayed close throughout much of their adult lives. After Burger moved to Washington in 1953, he played a key role in Blackmun's appointment to the U.S. Court of Appeals in Minnesota in 1959. Richard Nixon appointed Burger as chief justice in 1969 and Blackmun as associate justice in 1970. Observers quickly dubbed them the "Minnesota Twins."

But something happened. By the time Burger left the court in 1986, Blackmun had become his implacable foe. In addition to ideological disputes, a deep personal rift emerged between the kindergarten pals.

Justice Blackmun. 
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Justice Blackmun

Although the broad contours of their estrangement are well-known, Greenhouse has dug up some revealing gems. While Blackmun fretted as a scholarship student at Harvard, Burger sent him "a peach of a box of candy." As young lawyers, they fantasized about starting the "Burger and Blackmun" law firm. Each depended on the other as a reliable anchor. After Burger moved to Washington, he regularly unburdened himself to Blackmun, relating at one point that he had been "very depressed about a number of things for a long time" and, at another, that he recognized in himself the "fragile porcelain" that "can reside within a man." Blackmun replied with staunch letters of support, telling Burger that "we will lick whatever is bothering you." But after Blackmun joined Burger on the court, differences of opinion quickly erupted. Within a few years, Blackmun was jotting "CJ keeps yapping" in his court notes and adding scathing sarcastic comments in the margins of his copies of Burger's opinions—the way a wounded friend notes every irritation with increasing anger.

What happened? Greenhouse offers various explanations. Like many great feuds, the rift was rooted in both the personal and the substantive. Burger had acquired airs by the time he ascended to the chief justiceship, and he seems to have taken it for granted that Blackmun would be a loyal lieutenant—even though Burger could be an erratic and alienating chief. Blackmun, in turn, had a long history of reacting sharply to perceived slights. Burger failed to support Roe v. Wade vigorously after assigning the momentous 1973 opinion to Blackmun—and joining it—and his distance from Blackmun on the signature case helped to thrust Blackmun into his own lonely orbit. Burger likewise resented Blackmun's participation—along with a handful of other justices—in secretly drafting an alternative to Burger's version of the court's opinion in the Nixon tapes case in 1974. After a year or two of experience on the court, Blackmun's views on constitutional issues underwent a significant shift, becoming more liberal, which increasingly set him in opposition to Burger's positions. This combination of personal strains and jurisprudential differences led to a tempestuous relationship neither had anticipated. But they remained inextricably entangled for life.

Greenhouse is a far less reliable guide when she shifts from the personal to the institutional. To give the book its due, she is a riveting writer. She vividly depicts Blackmun's trajectory on claims of sex discrimination, from initial resentment and ambivalence to outspoken support. But her "story of the Court" is a partial and, at times, misleading one. Consider this telling illustration. Presumably because she found interesting fragments in the files, Greenhouse extensively discusses Blackmun's dissent in Bowers v. Hardwick, in which the court upheld an anti-gay sodomy law in 1986. She never mentions, however, the important fact that, when the court overruled Bowers 17 years later in Lawrence v. Texas, the court said that Stevens' additional dissent (not Blackmun's) "should have been controlling in Bowers and should control here." (In fact, she never even mentions that the court ultimately overruled Bowers.) Her account offers the reader an inadequate foundation for assessing the long-term significance of Blackmun's actions.

Greenhouse observes that she felt like a "miner" following particular "seams" in the mounds of documents. Her report from the subterranean regions of Harry Blackmun's papers and mind is absorbing. But an enduring evaluation of Justice Blackmun and his role on the court, and the limits of his influence and legacy, awaits a more thorough review.

* Correction, May 26, 2005:This article originally stated that the two men were boyhood friends in Dayton Bluffs, Minn. In fact, it is Dayton's Bluff, which is a neighborhood of St. Paul, Minn. Click here to return to the corrected sentence.

Cliff Sloan is publisher of Slate. He is a former law clerk to Justice John Paul Stevens and has argued five cases in the Supreme Court.

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