Shock and awe over the Blackmun papers.
The Library of Congress released the papers of the late Justice Harry Blackmun yesterday, to much fanfare and hoopla—as my colleague Mickey Kaus observes here. At my house, we like to call 1,576 boxes of old letters, clippings, and notes "kindling." But the reason some of us in the media are so excited by the Blackmun files is that this gives us a chance to report on justices as human beings.
It's a rare week indeed, when Linda Greenhouse offers incredible insight into high-court friendships, and Nina Totenberg shares behind-the-scenes information about which justices are constantly late for conference, which justices tend to bogart oral argument (hint: the same two), and that justices are influenced by their religion, their gender, and (yes!) public opinion, when forming their opinions in close cases.
The odd thing about the personal quirks, rivalries, and friendships revealed by the Blackmun papers is that they make explicit what most court-watchers already know but don't say: that Justice Souter is painfully shy, that Chief Justice Rehnquist cares a bit too much about his official title, that Justice Kennedy sometimes switches sides at the 11th hour, that election-year politics factor into court decisions. And that the justices and their clerks may have enjoyed the screening of dirty movies in the high-court basement a bit too much.
So, the justices are human. Many of you already suspected this. Why is it big news that they sometimes check out the "blonde in second row center" or confess to being "bored" by oral argument? Because we in the press are only given public dispensation to write about this stuff a handful of times over a lifetime.
We have all of us—the public, the court, and the media—signed off on an inviolate, unspoken bargain that allows us to think of Supreme Court justices as bona fide humans only up to the date of their swearing-in. We then pack them into a vast marble box, where their moods, biases, politics, and friendships become secret and unspoken. Suddenly, when they are dead and their papers turn up, we all act terrifically surprised about their moods, biases, politics, and friendships.
Justice Stephen Breyer spoke at the University of Virginia Law School this past weekend. He spoke rather candidly, for a judge, about some of the extra-textual factors that influenced his decision in last year's affirmative action cases out of the University of Michigan. He also spoke very candidly about the rule of law—about the court's ability to enforce unpopular decisions, without the assistance of its own army—because of the enormous stockpile of public trust and credibility it has accrued over the centuries. In the four-minute round of student applause he was given for such candor, each of the law students present could have read and outlined one case in preparation for finals. That means several hundred innocent outlines died last Saturday, so that Breyer could be acknowledged as a candid, personable, breathing human being.
The core assumption of the unspoken bargain between the court, the public, and the media is that if we knew the justices wrote notes, screened porn, lobbied for votes, read limericks, and sometimes burped after a visit to Taco Bell, the court's stockpile of public trust would be eroded. We might come to view them as political, ideological, interested stakeholders, rather than as divine interpreters of oracular truths. Law students could no longer read their opinions as "law." We'd have to acknowledge that the 5-4 decision in Planned Parenthood v. Casey—protecting a woman's right to choose in abortion decisions—reveals more about Justice Kennedy's soul-searching than about any immutable constitutional truth.
Maybe it's no accident that all this unwanted publicity for the high court unfolds just as the institution slides from its regular place on the op-ed pages to the political cartoons page, where one more caricature of Justice Scalia in Duck-gate is published. This sudden public scrutiny of conflicts of interest, extracurricular camaraderie, and the astonishing ways in which we trust the justices to police themselves must be hellish for the justices. But I, for one, don't foresee the death of the rule of law as a result of a few caricatures of Justice Scalia in a rowboat with a duck hat. I think all this openness is rather healthy. When families conspire to keep secrets, reify fictions, and pretend it's all normal, we call it a Eugene O'Neill play. But when a nation does the same, we call it democracy. And no democracy should be founded on willful secrecy and denial. Blackmun's decision to allow for the release of his papers only five years after his death was a dead man's ringing reminder that justices are very much alive.
Dahlia Lithwick writes about the courts and the law for Slate.