Transcript

HAROLD HONGJU KOH: Mr. Justice, this is a room in which you spent a lot of time.

Can you tell us about it?

JUSTICE BLACKMUN: This is the so-called Justices' Library in which I do spend a lot of time.

I like to get out of the chambers and get up here and work because, while there's a telephone here, it isn't as intrusive as it is when I'm in the chambers, and the secretaries aren't bothering me much.

But it's a splendid library.

In this room are the volumes that I usually use the most, the U.S. Reports and the Federal 2nd and Fed. Supp. And then down the hall through that door is a very extensive library of all the national reporter systems and British Reports and other things.

And what isn't available, all I do is get on the phone, call the library, and it comes right down.

But it's quiet up here.

And to my amazement other justices don't use it, William O. Douglas did.

At least he said he did when I arrived; I never saw him work up here.

And Justice O'Connor spent one day over in that corner desk laboring, but she never came back... maybe I bothered her too much or something.

It's almost been a private library and a very luxurious one.

I've liked it.

HAROLD HONGJU KOH: When did you first start working here?

JUSTICE BLACKMUN: Oh, almost from the beginning, I think.

I would say back in the early seventies, anyway.

HAROLD HONGJU KOH: What is your average day like, or what is your schedule when you are working on opinions or during the term?

JUSTICE BLACKMUN: Well, I leave our apartment at 7:15 and get down here about 7:30 and have a half an hour to do some early dictation to one of my secretaries who comes in early.

And then I have breakfast with my clerks everyday in the court cafeteria from 8 until, roughly 8:10, until 9 o'clock.

That's the one hour of the day that I can have with my clerks together and unbothered by other things.

We talk about anything, about yesterday's arguments and circulating opinions or baseball results or anything that's in the headlines; it doesn't have to be legal particularly.

But it's a good way of sharing the start of the day with them.

And then back to chambers.

If we're hearing arguments of course we go on the bench at 10 o'clock.

From 10 to 12 and 1 to 3.

If we're not, I'll work on whatever there is to work or get up here and try to get opinions out, in the quiet of this room.

I usually go home around 6:30 or so and have dinner with Mrs. Blackmun, and then work until about 10 in the evening.

I put in those long hours, I guess, because I'm dumber than the rest of them, and it takes me longer to get a hold on cases.

But that's the only way I can keep up.

HAROLD HONGJU KOH: Can you talk a little bit about how you work on opinions.

How do you work with the clerks on the opinions and what do you try to do with the opinions?

JUSTICE BLACKMUN: It varies from clerk generation to clerk generation because of the difference in their talents.

The last two or three years, I've indulged in the luxury of letting them put together a first draft, which they like to do usually.

The clerk that does it is the one who wrote the bench memo.

But I've noticed a habit has developed: the first draft doesn't come in to me until all four clerks have gone over it.

The other three criticize it and suggest changes and changes are made.

So by the time it comes to me, the first draft is almost a committee report.

They approve it, then I take it and go over it, read all the cited cases, add to it, delete some things.

I spend about a week before that opinion circulates.

I haven't done that with every generation of clerks.

But the last two or three have been proficient, and I have confidence in them, and I think they like to have the privilege of putting together a first draft.

HAROLD HONGJU KOH: You've become famous for some statements made in opinions, "Poor Joshua" and others, in the DeShaney case.

When you're working with someone else's draft, how do you make it yours?

JUSTICE BLACKMUN: Well, "Poor Joshua" was my personal addition in that particular case to which you refer.

I usually put in things of that kind.

They're hesitant to put in things that are so personal.

Of course, I get criticized for it.

Many commentators, since the announcement of my retirement, say that I write from the heart or froth compassion or something else and not from strict legal principle.

Well, that doesn't bother me.

HAROLD HONGJU KOH: Was there a time when you were more reluctant to put your feelings into your opinions?

JUSTICE BLACKMUN: Oh, yes, I think so.

When one comes here first, those early years, one isn't very comfortable about it.

But as he's here longer, it's easier to put in his personal feelings.

But I did it on the Eighth Circuit too at times.

I remember one capital punishment case out there where we upheld the death penalty and I wrote a separate addendum stating I didn't believe in it but I went along with it.

So I wrote both the majority opinion and my little addendum, which is fairly personalized actually.

I see nothing wrong in a judicial author expressing his personal feelings about some things.

HAROLD HONGJU KOH: How did you feel about separate opinions and your duty to try to go along versus your duty to speak your own views?

JUSTICE BLACKMUN: Well of course criticism has been leveled at the Court and properly so.

I think that we write too much.

It's much easier to write at length than it is to write briefly.

And if one wants to get an opinion out in a hurry it ends up at twenty pages whereas if he can sit on it for a while it might be ten.

I've yearned for the time that I could get an opinion concluded and put it on the shelf for two weeks and then look at it again, but one doesn't do that around here; there isn't time.

And the Court has been criticized for writing too many separate opinions.

Everyone seems to want to add a concurrence.

Recently some commentator said:

"Justice X wrote a concurring opinion, which said the same thing as the majority said. "

And if that's true then the concurring opinion isn't adding very much.

But there's much to be said for getting an opinion out in which everyone can join, And it's easier to write when one shouldn't write than it is to refrain from writing.

But we're under pressure; we get these things out, and I don't know whether it's playing to the media or what it is, but maybe we shouldn't write so much.

HAROLD HONGJU KOH: How do you feel about maintaining consistency with your past opinions or votes over the years?

How did you ensure that you did or didn't?

JUSTICE BLACKMUN: Well that's of course, part of the clerk's job to be sure I'm not saying today the opposite of what I said five years ago.

But I think I've been consistent.

Some commentators have said that I've changed over the years, become more liberal, I suppose.

My response to that has been the easy one of saying that I haven't changed, the court has changed under me, which to some degree is a correct observation, I think.

It has become more conservative than it used to be.

But I think when one gets down here, in this Court, he has to develop his constitutional philosophy and face the big questions, such as,

"what is due process of law? "

and

"when is something a denial of equal protection? "

All those great phrases.

Before one gets here, he doesn't have much of an opportunity to develop that judicial philosophy.

On the Eighth Circuit, of course, we had constitutional cases, but we had a large number, perhaps a majority, of cases that didn't involve constitutional issues.

And we always had the comfort of knowing, if we were working on a constitutional issue and were wrong, those jokers down in Washington could straighten us out and tell us what the constitutional law was.

Here, however, one has to develop that philosophy to his own satisfaction and, if he doesn't grow, I think there is something wrong... if growth equates with change, which I think it does not.

But if one says that, why, then, one changes down here.

I think over the years I've been consistent.

I don't think of a case where I would have changed my vote.

There's one, I've even forgotten the name of the case, where I joined Byron White in a concurrence that today I probably would have joined the majority.

But by and large I think I would have reached the same result in all the cases.

I might have written them a little differently or said some things that I didn't say then or refrain from saying some things I did say, that kind of thing.

I think I've been consistent, and I haven't seen any commentator that has said I've been inconsistent.

They have said that I've changed or grown more liberal or that kind of thing.

HAROLD HONGJU KOH: Could you talk about the assignment power?

Early in your time here, you were very junior but over the last few years you've exercised the assignment power more and more.

What are your feelings about the wise use of the assignment power?

JUSTICE BLACKMUN: Well, it's a very potent power, really, and the general public doesn't understand it.

Who assigns cases to write is not established by statute or court rule or anything else, but it comes about by tradition, I suppose.

Here, and this is true of most American courts that I know of, the presiding judge, and here it's the chief justice, if he's in the majority, assigns cases for opinion writing.

And that isn't an inconsequential power, really, because first of all he has the privilege of keeping the cases that he wants to write and usually the juicy cases with great issues in them, the chief is inclined to take them, although Chief Justice Rehnquist has been very fair in this respect.

And it is true, as you know, that some justices write more broadly than others, some write more narrowly, and if the chief wants an opinion in which he's in the majority written narrowly, he'll give it to a narrow-writing justice, probably.

And then of course he tries to balance the load, and all those factors enter into the exercise of the assignment power.

On the other hand, if the chief is not in the majority, then the case is assigned by the senior associate in the majority.

And sometimes that may even drift down to the third or fourth.

And of course, as one gains seniority here, he rises in the seniority power ladder, so to speak.

The last year when I was senior associate there were a lot of cases... at least a fair number of cases... where I assigned the majority opinion to justices to write.

Those were cases where the chief justice and I were in disagreement, and I had the majority of votes on my side.

It's an interesting exercise and, as I say, it isn't written in the books anywhere; it's just there and that's the way we operate, and I think it works generally pretty well.

HAROLD HONGJU KOH: You had over thirty years of opinions to write.

And I guess it's a craft.

What do you think you learned about opinion writing over those years?

How did you get better at it?

JUSTICE BLACKMUN: Well, that assumes I got better at it.

I'm not sure I did.

One has to develop a facility in writing.

I think he should like to write.

I'm sure each of us does it in a different way.

If I'm writing an opinion, I always tackle the facts first, get the facts together and then go into the legal arguments, generally.

Justice Douglas, I well remember, if he was in the dissent, would often write dissents right on the bench when another case was being argued, and then he'd put them in the file.

And when the majority came around, he would circulate his dissent and often it didn't fit into the majority at all; it was like two ships passing in the night.

But then on the second and third drafts, he'd zero-in on the majority and it would come out all right.

But he had a facility for writing.

He did it fast, and at the height of his power, he did it well, of course.

Some of the rest of us struggle with it.

And one can struggle a good bit with some of these cases.

A lot of them are terribly close.

And you think about the future looking down the line as to what this precedent is going to do.

We have to be careful about that.

HAROLD HONGJU KOH: Of the justices you sat with, were there some whose facility for writing opinions you especially admired?

JUSTICE BLACKMUN: Yes.

I sat with seventeen over the years.

Of course, one tends to think of the old-timers as particularly adept at it because they've been around longer I suppose.

Black wrote convincingly and quickly and perceptively, I think.

Yet John Harlan, the second John Harlan's writings, I always liked.

He had a sensitivity about him.

He and Black, as I recall, were distant cousins.

But they didn't always agree on things, and they struggled and barked at each other in a very friendly way.

But each wrote with facility.

William Brennan, of course, wrote with great facility and sometimes at great length.

But the words seemed to roll off his pen very easily, and he commanded a following of liberal thought here on the court.

Those are the three I think... and they're the older ones... that I watched with great interest and tried to emulate as far as their writing habits were concerned.

HAROLD HONGJU KOH: Do you plan to sit on the Eighth Circuit?

JUSTICE BLACKMUN: Well, chief judges of the courts of appeals have been very nice.

I think five of them already have written and invited me to sit on their respective circuits.

Justice Stevens and I, when we were in a little rest moment the other day, were talking about it, and both of us concluded that we were a little reluctant about sitting on a court of appeals.

We're qualified to do it if we're invited, but the risk you run, of course, is that you write an opinion and then you get reversed here and that isn't so pleasant, although I know what would happen.

When Tom Clark was in that position, there were a number of his opinions, as he sat on the lower courts, that were reversed.

Justice Powell has sat on the Fourth Circuit and I think once or twice on the Eleventh but has never been reversed up here.

But that's a risk one runs.

And after all, who really is right?

Is the reversing court correct or is the reversed court correct in these close cases?

Because sometimes a dissenting opinion becomes, in due course, in twenty years or so, the majority approach taken by the Court.

We're all in this together, and we work the best we can.

I think that one shouldn't be too upset by being reversed.

Some judges don't like it at all.

But we shouldn't have pride of authorship.

Take it as it comes.

HAROLD HONGJU KOH: Last question.

I know which your most famous opinion is.

Which is the opinion you most enjoyed working on?

JUSTICE BLACKMUN: Well, as far as sheer enjoyment is concerned, the baseball case, Flood against Kuhn, back in, I think it's 407 U.S., where the issue was whether baseball was or was not subject to the anti-trust laws.

This court in two prior opinions, some years ago, one of them by Holmes, had held that baseball was a sport and not a business.

But, at the same time, the Court and other courts have held that professional basketball, professional football, and all the other professional sports are subject to the anti-trust laws, so baseball has this peculiar status.

In effect, this Court has thrown the ball to Congress, telling them that, if you want to make it subject to the anti-trust laws, go ahead and make it subject, Congress has hesitated about it because, I suppose, of constituent pressure from home.

But in part one of that opinion I indulged in a sentimental journey of the history of baseball and listed a number of the greats of yesteryear, so to speak.

I didn't want to bring it down to the present day, but it gave me a chance to think of some of the great stars of those days.

They're all listed.

I've named, I think, over a hundred.

And I took the advantage, in a footnote, referring to "Casey at the Bat".

But two of my colleagues, though the opinion was 7-2 as I recall, I think it was, two of my colleagues wouldn't join part one.

And I think they thought perhaps it was beneath the dignity of the Court to indulge in a sentimental journey about baseball.

But it's been a great conversation piece.

I can go to Chicago, and somebody will come up and say,

"I read your list of the great heroes of baseball, but why didn't you include Joe Zilch? "

And then we'd have a conversation going as to why I didn't include Joe Zilch.

He didn't bat well enough over ten years or something.

Sure.

HAROLD HONGJU KOH: Can I ask one more question?

Other justices might not have put in I.> ["] Did you feel that you had a duty in your opinions to speak to a broader audience than just lawyers and judges?

Why do you think you insisted on having these?

JUSTICE BLACKMUN: Well, I thought that the DeShaney case, in which I used that phrase "Poor Joshua", was a sad case.

This youngster was subjected to the punishment by a brutish father, and the social service agencies knew this and did nothing about it.

The majority of our Court held that the social service agencies and the state could not be held liable for not doing anything about it.

I went the other way and tried to emphasize what it meant to this little boy who was so severely injured that he would be less than normal for the rest of his life.

And it seemed to me that he was the issue in the case.

After all, these cases do involve people and usually they involve what I like to call "little people" in the sense that they're not some celebrity.

They're just an ordinary person that is seeking justice in this world.

And this little boy got a bad shake and nobody seemed to be very much concerned about it.

That's why I referred to "poor Joshua".

But I never try to forget that there are people at the bottom of all these cases.

In every case in the U.S. Reports, there are people concerned.

Less so maybe when corporations are involved, but there are still people there.

But certainly in the criminal field and in the personal injury field, there are individuals that are sadly affected and vitally affected by the outcome of the decision.

I think that our judicial system should never forget that.

HAROLD HONGJU KOH: Thank you, Mr. Justice.

We'll have to leave these books [referring to books on desk] here for ten years.

Then we can keep coming back.

We could do all the interviews here.

JUSTICE BLACKMUN: I'll come up and put the books away because the cases have come down now, and the library wants to get them back.

But they've been good about letting me pile them up here and use them.

HAROLD HONGJU KOH: Where did the Minnesota bookshelf come from?

The bookstand?

JUSTICE BLACKMUN: As I recall, there was a Minnesota group that came in headed by a professor out there, and they always asked whether I'd sit down with them for an hour and talk about the Court.

And I usually did if time was free and we weren't on the bench.

And one day they came in and presented that to me, the outline of the state of Minnesota, geographically, so to speak.

I use it a lot; it's been very handy here.

That's where it came from.

You pick up a lot of little things like that, you go around and.

I never take an honorarium, so I always get a plaque or a doohickey of some kind.

That's kind of nice.

That's why I have so many artifacts down in my chambers.

HAROLD HONGJU KOH: Is Roe v. Wade the only opinion you worked on outside the Court or away from the Court?

JUSTICE BLACKMUN: The reason I did that, of course, is because I wanted to get into medical history and literally ascertain the history of abortions over the centuries.

The place to do that was in a medical library, not a legal one.

And so I spent that one summer after the first argument and before the second doing what I wanted to do.

I also wanted to find the source and significance of the Hippocratic Oath.

And I was successful in that, I think, by working in a medical library a good time that summer.

HAROLD HONGJU KOH: When you worked that summer, did you know that you might get the case to write?

JUSTICE BLACKMUN: Well, it had been assigned to me after the first argument.

And I had no assurance it would come to me on the second argument, but it seemed to me the same reasons applied.

And in any event, I was prepared to write separately if it didn't come because I wanted to get the answers to those two questions: one, the Hippocratic Oath and the history of abortion generally and the attitude of organizations toward abortions, such as the AMA, the public health groups and all the rest.

It was not consistent, any more consistent than the attitude of some religious bodies toward it.

I learned a lot.

HAROLD HONGJU KOH: Well, we'll come back to Roe v. Wade.

JUSTICE BLACKMUN: Well, yes.

That isn't the only thing I wrote.

And, of course, my death penalty dissent seems to have taken some of the steam out of Roe against Wade, fortunately for me.