Transcript
HAROLD HONGJU KOH: This is the Justice Harry A. Blackmun Supreme Court Oral History Project, session number two.
My name is Harold Hongju Koh.
I'm a professor at Yale Law School, a former law clerk to Justice Blackmun, and the interviewer for this project.
The subject of today's session is the justice's last term as an active justice, October term, 1993.
Mr. Justice, could you tell us about your retirement decision and how you came to it?
JUSTICE BLACKMUN: Well, there were a lot of factors, of course, that enter into a decision of that kind.
I'd been thinking about it for a good while, and I knew how the age numbers were adding up.
I didn't want to set any records, so far as staying on the Court was concerned.
I think the record for an active justice is held by Oliver Wendell Holmes, Jr., who served until he was ninety.
I think the next one was Chief Justice Taney Justice Black, I think was third.
I realized I was getting up in there.
Reaching the age of eighty-five and still being an active justice made me wonder a little bit.
I didn't want to fall apart and eventually be asked to retire.
So I thought that maybe it was high time.
HAROLD HONGJU KOH: When did you finally make the decision?
Did it happen over a number of months?
JUSTICE BLACKMUN: Yes, indeed.
Probably over a year anyway.
I had told the president when we were at Renaissance Weekend on New Year's at Hilton Head, South Carolina, that this would be my last term.
HAROLD HONGJU KOH: New Year's of 1994?
JUSTICE BLACKMUN: Yes, 93-94.
I thought I'd let him know in advance so that he could he thinking about it.
I was fairly certain at that time that this was my last term.
HAROLD HONGJU KOH: Where did you tell him?
JUSTICE BLACKMUN: We were in one of the sessions that Renaissance Weekend has, there is session after session, and as I recall this one was in a darkened room; they, were showing something on the screen.
I had arranged to meet him at a certain time.
The session was still going on, but we both went out and sat on a bench there and visited a little bit, and then I told him.
HAROLD HONGJU KOH: Did he seem surprised?
JUSTICE BLACKMUN: No.
Had I been he I wouldn't have been surprised, knowing how old I was.
HAROLD HONGJU KOH: How did he react?
JUSTICE BLACKMUN: In no particular way.
I think he was pleased that I had told him that I was thinking along this line.
The president of the United States has so many things on his mind, I don't believe this was of that magnitude to upset his day or anything.
That was it.
We let it go until later when the formal announcement was made.
I told him I didn't know when I would make it formally and make it public, but I felt inwardly that he should have some awareness of what my thinking was.
HAROLD HONGJU KOH: How did you pick the day that you actually made the announcement?
JUSTICE BLACKMUN: I didn't pick the date specifically although April 6th, I think it was, is a date that is of some significance in United States history, which I won't go into at this point.
Justice White, the year before, I believe-and this is pure recollection... I think he made his announcement in March.
I knew that with March passing by it was time that I move along and make the formal announcement.
It just happened that April 6th must have been at the beginning, perhaps at the end of the March session and near the beginning of the April argument session.
It seemed to me to be a pretty good time.
HAROLD HONGJU KOH: When did you tell others?
Others on the Court, your clerks?
JUSTICE BLACKMUN: I did it at one Friday conference.
I remember Justice Marshall, the year or so before, when he made his announcement, as I recall, he merely said at the end of a conference,
"Say, Fm going to turn in my suit. "
It caught everybody by surprise a little bit.
I didn't do it exactly that way but told them that this was my last year and that was it.
HAROLD HONGJU KOH: Did they say anything?
Did they respond in any way at that time?
JUSTICE BLACKMUN: Oh, yes, sure.
They always respond.
And then they wrote letters... I have them here actually... that is, most of them wrote letters, not all of them, but most of them did.
HAROLD HONGJU KOH: How did your clerks and your secretaries react?
I haven't asked you, but you maybe could tell us something about your clerks from that term.
JUSTICE BLACKMUN: Well, I called them in one day.
I don't remember whether it was after breakfast.
I can still see them.
I asked them to come in the chambers, and we're all standing around, none of us were sitting, and I merely said to them that I had decided this would be my last term and that they were the last quartet of clerks that I would have.
The silence was deafening for a little while.
They were very nice about it, made the usual cluck-clucking sound and said I shouldn't do it and so forth.
Just one of those things to do, and we carried on-from there.
HAROLD HONGJU KOH: In making the decision, who did you take counsel from?
JUSTICE BLACKMUN: No one in particular.
Dottie and I, Dottie being Mrs. Blackmun, had talked about it, as indeed I had with our three daughters a little bit.
Sally, our lawyer daughter, our middle one, I think had been encouraging me for some time to take the step, oh, for obvious family reasons,
"What do you want to do? "
"Work this way until you collapse? "
"You ought to spend some time with the family. "
and so forth.
I think that Dottie was in favor of it.
It would affect her life considerably.
But it didn't upset the family particularly, We sailed along.
HAROLD HONGJU KOH: Were there any times before this that you felt close to making this decision?
JUSTICE BLACKMUN: Yes, for the last year and a half, or two years maybe.
Because the years were mounting up I knew I'd have to do it sometime.
I wanted to take the step when I felt, at least in my own mind, that I was possessed of all my faculties, not just half of them.
I would rather retire when people thought I could continue than to retire when they felt that I must retire.
HAROLD HONGJU KOH: What do you remember of other retirements?
Which happened in the way that you thought shouldn't happen or should happen?
Did these have any influence in your decision?
JUSTICE BLACKMUN: It didn't have any particular input into my decision.
I remember how difficult it was for William O. Douglas at the time.
Of course, he was stricken when he was active and sat for a while when he was in grave physical difficulty.
I remember they had a ramp for him to be brought up on to the bench.
It was hard for Bill Douglas, I think, as Thurgood put it, to "turn in his suit".
He loved the court, and he wanted to be there and participate in it even though he was under fire from certain quarters at all times.
I didn't want that to happen to me.
The others, I have no particular recollection about the others, it certainly didn't influence me in my timing at all.
Each does it in his own way.
HAROLD HONGJU KOH: There are famous stories, historically, about deputations of justices going to ask justices to retire: e.g., Justice Brewer going to ask Justice Field.
Did anybody ever go ask another justice to retire, or suggest it mildly, in your time?
JUSTICE BLACKMUN: Of course, I don't know because I wasn't chief justice, and I didn't know what the chief justice was doing.
It was largely his responsibility.
Of course, the Field situation is a very noted one.
I think that's the place where he said,
"Yes, and a dirtier day's work I never did. "
something to this effect.
It must be an excruciating task to do that and tell another justice it's time for him to retire.
I guess that happened to Holmes.
actually.
But to the credit of Oliver Wendell Holmes, Jr., he moved like that [snapping fingers] and stepped aside.
But all of us, I suppose, the natural tendency of a person is to think that he will endure forever.
He doesn't look upon his failing facilities and accept the fact that such failure is bound to hit at one time or another.
HAROLD HONGJU KOH: Some commentators have said that you waited until you thought that Roe versus Wade was safe to make the decision and that the Casey case was an important factor.
JUSTICE BLACKMUN: Well, there are those comments, from I think more than one, and the implication is that... they're saying this to me... that I didn't want to retire so long as we had the Reagan-Bush years upon us and would have a replacement selected that was not sympathetic to Roe against Wade.
I don't know how true all that is.
Maybe the advent of Mr. Clinton as president of the United States was a factor.
I'm not sure that it was.
He at least was sympathetic to Roe against Wade.
We had decided cases that were part of its progeny.
Made me feel that the precarious situation, if it was precarious, of that decision of twenty-some years ago had pretty well passed and that it was safe.
HAROLD HONGJU KOH: When did you first meet Bill Clinton?
JUSTICE BLACKMUN: I met him first, as I recall more than once, at Eighth Circuit Judicial Conferences.
The Eighth Circuit was the circuit that was mine in the sense that I was assigned to it as a justice, but I'd also been on the court of appeals for the Eighth Circuit.
We had annual conferences and when they were held in Arkansas, Mr. and Mrs. Clinton always were among the hosts, either in an official capacity as governor or some other political charge, or just as a prominent and active Little Rock lawyer.
Dottie and I came to know them casually just as we did other Arkansas friends.
That was the first time.
Then, of course, later, when we were invited to attend and did attend Renaissance Weekends at New Year's, they were always among others present.
We met them during those weekends.
At times, I was assigned to a seminar where he and I were the two speakers, so I came to know him fairly well.
HAROLD HONGJU KOH: Would you say you had private conversations with him?
HAB: Oh sure, sure.
Did you think he was going to be president?
JUSTICE BLACKMUN: Not initially, but you never know.
One of the most interesting Renaissance Weekends, of course, was the New Year's after he was elected but before he had become president on the ensuing twentieth day of January.
He was president-elect at that time.
But it didn't seem to affect him particularly.
It gave me a chance in the final seminar that we had, and we always seemed to have the last one, gave me a chance to say what I hoped he would do about judicial selections.
To have a president-elect as a captive audience was a great feeling.
I could say things, and he couldn't answer me until it was his turn to speak.
It was a lot of fun.
HAROLD HONGJU KOH: Do you remember what you said?
JUSTICE BLACKMUN: Yes.
I told him that I hoped there would not be any litmus test for judicial appointments... that he would appoint just good judges.
That's what we needed and what we wanted.
HAROLD HONGJU KOH: When you made the formal announcement, how did you convey it to him, and then what happened?
JUSTICE BLACKMUN: I wrote him a letter.
I have a copy of it here somewhere.
It's a little hard to decipher, but it makes sense to lawyers, that I would retire as of the end of the current term, that is, when we rose for the summer recess or as of the date my successor was sworn in and qualified, whichever was the latter.
But in any event, no later than the last Monday in September.
I thought it would be inadvisable for--
me to work on cert petitions all summer long when I would have no part in voting on them in that last conference.
That was delivered, as I recall, I gave it to Joel Klein, who was among the close advisers to the president at that time.
HAROLD HONGJU KOH: Deputy White House counsel.
JUSTICE BLACKMUN: I didn't send a messenger down to the White House just addressed to the president.
I sent a messenger down with a letter to the president but with instructions to deliver it to Mr. Klein.
And the next thing I knew was a call from Joel that Mrs. Blackmun and I were to come down to the White House, which we did.
I took my whole staff with me, the clerks, the messenger, and the secretaries.
HAROLD HONGJU KOH: And what happened when you got there?
JUSTICE BLACKMUN: The President and Mrs. Clinton most graciously waited for a little while, and then the two of us, that is Dottie and I, were escorted into the Oval Office where the President and Mrs. Clinton were.
We visited with them for a while.
They were very nice to us.
The rest of the group stayed out and, I think, passed the time of day with Lloyd Cutler and Mr. Stephanopoulos and others.
And then, at an appropriate time they were all invited into the Oval Office, and the whole group came in.
We had some photographs taken.
And then it seemed to me we were taken into, I've forgotten the name of the room.
HAROLD HONGJU KOH: The Roosevelt Room?
JUSTICE BLACKMUN: --Yes, the Roosevelt Room, where to my surprise the press were assembled.
I believe there were in that group, it looked fairly large to me, were only members of the press.
I hadn't realized that it was to be televised because I stood with the president at the door and someone would say, 45 seconds, 30 seconds, and then bang, the door opened, and we walked in.
He made the announcement to the press.
I think I responded a little bit.
There's some photographs about this.
Of course, what the press wanted to do was to hold an interrogation session.
They asked one question, which was the obvious one about Roe against Wade.
I answered that and then cut off all other questions at the time.
HAROLD HONGJU KOH: What was your answer?
JUSTICE BLACKMUN: I said essentially that I thought that Roe against Wade was correct when it was decided in 1973 and I think it is correct today.
It was a decision that had to be made if the country was to go down the road toward the complete emancipation of women.
Period.
HAROLD HONGJU KOH: And then when you left the White House you went back to the Court.
JUSTICE BLACKMUN: Yes.
HAROLD HONGJU KOH: And what happened then?
JUSTICE BLACKMUN: I don't remember.
I went to work I guess, more than anything else.
I don't remember anything in particular happened.
We just went back into chambers and carried on.
HAROLD HONGJU KOH: I think there was a press conference at the Court.
At least you are pictured at the press conference raising your arms.
JUSTICE BLACKMUN: Maybe that's where the press conference was.
I'd forgotten whether it was at the White House or there at the Court.
Yes, at the end they were applauding; they were all very nice and I just stood up and went like this... I-did not do this.
HAROLD HONGJU KOH: How did you feel about your relationships with the press over the years?
JUSTICE BLACKMUN: Relationships with the press, of course, are up and down and depending on which member of the press we're talking about.
Even at that time there were some very critical comments by certain members of the press, But I was overwhelmed that day with the kindness of the press at that session.
There seemed to be no bitterness expressed, and it almost put me in tears they were so nice.
The kindness of people is something that sets me blubbering at times.
If they're nasty, I can stand that; my hide is so thick now.
But when people are kind is when I quiver a little bit.
They were kind that day.
HAROLD HONGJU KOH: In the days immediately after the announcement, did you get lots of mail and calls?
JUSTICE BLACKMUN: Yes.
We were actually overwhelmed with an unanticipated avalanche of mail and.
calls.
A lot of people called, good friends, and my secretaries kept, of course, track of all those calls.
I just couldn't speak with everybody.
The mail still is piled up.
There are some letters from April that I have not yet acknowledged and answered... I shall.
We're peeling it off folder by folder.
A lot of friends, a lot of people in the academic life.
A lot of letters from unknowns, actually, they sign their name, but 1 just don't know these people.
And some of it, of course, is pretty critical.
I would say it runs about seven or eight to one favorable comments, which are easy to make.
I've always had over the years a certain amount of hate mail.
In that very press conference the president and I exchanged jokes about,
"I'll take over his hate mail if he'll take over mine. "
Mine took a little different tone from this point on, I'll leave the swear words out, but, "it's high time", "good riddance",
"why didn't you do this twenty-four years ago. "
and this sort of thing that people like to write and get it off their chests, and they feel better.
Some of the nastiest letters I've ever received came in at the time of my retirement announcement, and they still come in.
Some of the most beautiful ones too that I've ever received have come in now.
HAROLD HONGJU KOH: Do you remember any of the nice ones?
Do any of them particularly stick in your mind?
JUSTICE BLACKMUN: Yes, depending on who wrote them or something like that.
Of course, I think one should look on the bright side, not on the nasty side.
It's an experience I never thought that as a law student or even a young lawyer I'd ever go through, have the privilege of going through, these twenty-four years on this Court.
Part of this is the penalty one pays for public life.
You're going to get criticism; that's the American way, and one must anticipate it.
HAROLD HONGJU KOH: Did you think back to when you were appointed and the differences and similarities?
You must have had a press conference back then.
JUSTICE BLACKMUN: Yes, yes.
I thought at the time, and this was 1970, that it was not easy then actually, because, I'm not speaking about the press conference, but one has of course the appearance before the Judiciary Committee of the Senate, which isn't very easy.
One's sitting out there at a table all by himself.
There's a ring of senators around with the Democrats on one side and the Republicans on the other.
They question you by seniority.
Down one side first, then the other side.
It' bothered me a little bit until all of a sudden it dawned on me that some of the comments that were being made by the senators were not so much directed at me as they were at their counterparts on the other side of the political aisle, so to speak.
Once I realized that, I could relax a little.
I think the experience of that hearing before the Senate Judiciary Committee will remain in my memory very vividly.
I almost don't have to look at the transcript.
I remember exactly what happened and what each senator said.
This was political hardball at the time.
I thought it was not an easy day.
Of course it was nothing as compared with what Justice Thomas had to go through.
HAROLD HONGJU KOH: About a month after you announced your retirement, Richard Nixon died.
I wonder how you felt about that?
JUSTICE BLACKMUN: Yes, he did die about a month later.
I never felt very close to Mr. Nixon.
As a matter of fact, the first time I ever spoke with him was when I was called into the Oval Office at the time my nomination was being considered.
I had heard him ' give speeches, that kind of thing, and had seen him as one among a large crowd of thousands of people.
But I'd never spoken with him until I was called from Minnesota to come to Washington.
The attorney general at that time made that call.
I visited with him and with the deputy attorney general.
HAROLD HONGJU KOH: Was that John Mitchell?
JUSTICE BLACKMUN: That was John Mitchell as attorney general, and the deputy was Richard Kleindienst.
They examined me rather carefully, I thought, and then turned me over to two interrogators for a while.
The two interrogators were... the first one was Johnnie Walters of Carolina, who was then assistant attorney general in charge of the Tax Division.
Dottie and I learned to like Johnnie Walters and Donna, his wife, very much.
They became friends although we haven't seen much of them.
The other interrogator was no one less than William H. Rehnquist, Jr., who was then assistant A.G. in charge of the Office of Legal Counsel.
He asked a lot of pertinent questions.
Ever since then, on certain occasions, when he and I disagree, and his view does not prevail on the Court, it might be 6 to 3 or something like that, I can't resist saying, particularly to the chief justice,
"You made a mistake in approving me back in 1970. "
And he always allows as how he did make a mistake.
We josh about that back and forth.
HAROLD HONGJU KOH: What do you remember of your own conversations with Nixon?
JUSTICE BLACKMUN: After that interrogation, which lasted for about an hour, hour-and-a-half or so, I was told that we would go to the White House.
I think my memory is correct, but no luncheon was served up.
I was rather hungry, but sure enough at two o'clock, or just before two, or whatever it was, why, Mr. Mitchell came in and got me where I was, and we went over in the attorney general's limousine to the White House.
At that time one entered by the southwest door.
We drove up, and the guards there recognized the attorney general, but they wondered who this coot was that was sitting with him in the back seat.
Mr. Mitchell obviously didn't want to give names because this thing was just under consideration, and I think he was afraid if names were given it'd hit the press in some way.
But he got us through, and we went on into the White House and were escorted up into the Oval Office.
I well remember that conference with Mr. Nixon.
It struck me as being a little unusual in some respects because Mr. Nixon sat on his side of the desk and Mr. Mitchell, the attorney general, on the other side.
And they allowed as how I could sit in a chair at the end of the desk.
"Would you like a cup of coffee? "
"Well, sure", If I could get a cup of coffee out of the White House, why, I'd enjoy it.
So I sat there silently while these other two spoke.
But what struck me was the fact that here were two former law partners who must have called each other by their first names all the time.
There was none of that during that conversation.
It was wholly formal.
The President would say,
"Mr. Attorney General, what is your recommendation? "
And Mitchell would say,
"Mr. President we recommend that the judge be offered the nomination for the Supreme Court. "
I thought this was rather nice but certainly most unusual.
So it went, and then there was a little bit of conversation as to when the announcement would be made.
At the time one of the Apollos, I've forgotten whether it was seven or nine, was in trouble and was limping back from the moon, so to speak Everybody was concerned about getting those astronauts back safely.
And it was then and there decided,, right in my presence that the announcement would not be made until the climax of that incident was behind us.
And it happened that they got back safely, I think over the weekend.
But the decision was made to make the announcement, I believe, on the following Tuesday.
That's what happened then.
HAROLD HONGJU KOH: Did you ever meet Nixon again before he died?
JUSTICE BLACKMUN: Yes, once.
After I was sworn in on the ninth day of June, 1970, the chief justice, then being Warren Burger, suggested to me, and he hadn't alerted me to this fact, that we should go down and call on the president.
In those days, contrary to the current system, there was no big White House "do".
I can remember some of the presidents coming to the Court for the swearing in.
Mr. Nixon did this with, I think, when Chief Justice Burger took his oath of office in 1969, came up, witnessed it there and in fact addressed the Court in the courtroom and not at the White House.
Well, to go back to your question, Chief Justice Burger suggested that we should go the White House, formally convey the fact that I'd been sworn-in to the president.
And we did.
He was very cordial.
He didn't ask any particular questions at that time, and we weren't there very long.
I think there were one or two photographs taken of that call, and then we left.
And that's the last time I ever spoke to Mr. Nixon.
In all the intervening' years, I do not recall anytime when he and I had a one-on-one conversation at all.
HAROLD HONGJU KOH: Did he ever come into the courtroom?
JUSTICE BLACKMUN: I don't remember that he did, but, of course, we always attended the State of the Union Address.
We... the Court... did.
So I saw him in action at those times.
But I don't recall his coming to the Court on any occasion.
I ought to be careful about....
When Justice Powell and Justice Rehnquist were sworn in, they were sworn in together on January 7th, 1972.
He may well have come up, but I don't recall.
HAROLD HONGJU KOH: Coming back to your own retirement.
Did you ever make any suggestions about who your successor should be?
JUSTICE BLACKMUN: No.
No.
I don't know whether I should say this.
It comes close to a different answer than I've just given you.
I was visiting with Joel Klein one day, and I said,
"Joel, it's always struck me as being rather curious that when there's a vacancy on the Court no one in the then-administration, and this applied to the Reagan administration, the Bush administration, and the Clinton administration, ever called anybody on the Court about the names of federal judges that were being considered. "
"Why didn't you do this? "
Because we knew who the sure-footed judges were and who the ones that weren't sure-footed were.
And if they were persons that were not judges but had appeared before the Court on a number of occasions, we also knew what kind of lawyers they were.
And it seemed to me that the members of the Court were a good source of information for the appointing authority.
Joel allowed how he had never heard of anybody calling.
So after that, he did call and ask me for thoughts about a number of people, Steve Breyer and Richard Arnold, in particular, whom I knew well having been on the Eighth Circuit.
The other names that were being bandied about at the time, Mr. Babbitt, Mitchell, and some of the others.
To that extent I did make comments.
HAROLD HONGJU KOH: Did you have strong, positive feelings about any of them?
JUSTICE BLACKMUN: No, I couldn't say much about any of the others.
Other than Richard Arnold, whom I knew well and who would've made a fine justice but who, of course, has these physical problems that I think probably concerned the president, plus the fact that all of us knew coming from Arkansas was, at that point, maybe was a negative factor rather than a positive one.
But I'm sure that had the president made a selection from the heart, that Richard Arnold would've been high on his list, very high on his list.
Good judge, nice person, good chief judge, and just a delight to be with.
HAROLD HONGJU KOH: Did you know Breyer?
JUSTICE BLACKMUN: Well, to an extent.
The judge had been a participant in the seminar at Aspen that Professor Norval Morris and I co-moderate every year, have now for sixteen years.
And he was out there, I would say, as a participant four or five years ago, right at the time the sentencing guidelines were being developed, and he was on the Guidelines Committee.
At the end of the first week, the chairman of that committee called him and said,
"We're having a vital committee meeting, you must come back. "
And so he left.
He didn't stay the full two weeks.
But having been there, as is always the case every year, we were on a first name basis.
That's the way Aspen operates, you're on a first name basis, you're not formal.
HAROLD HONGJU KOH: Did you ever talk to him after your opinion upholding the sentencing guidelines?
JUSTICE BLACKMUN: Mistretta?
HAROLD HONGJU KOH: Mistretta.
JUSTICE BLACKMUN: No, I never talked to him about it, no.
HAROLD HONGJU KOH: What did you think of him?
Did you have a strong impression of him?
JUSTICE BLACKMUN: Oh, he's obviously able, articulate, in some respects Bostonian, in many ways.
I think he was a fine judge on the First Circuit, a good chief judge, a good administrator.
How interested he was, how compassionate he was, how interested he was in the little person that are parties to our cases, I didn't know, actually.
Time will demonstrate that to us.
But, he's able, he's fully qualified to sit on the Supreme Court.
HAROLD HONGJU KOH: When the announcement had all been done and then you had to go back to finishing the term, did you find it difficult to get your work done?
JUSTICE BLACKMUN: No, not really.
Actually, a little less difficult than in previous terms.
I think you can remember from your own experience that May and June are pretty hectic months here.
We finish oral arguments in April and then devote the rest of the time trying to get the opinions out in all argued cases.
It takes a bit of doing to get those things out.
We always aim for the first of July or, in any event, by the fourth.
Sometimes that's a hard deadline to meet.
This year it didn't seem too difficult.
That, in part, was because we took fewer cases this year.
But the ones that were assigned to me to write seemed to roll off.
I was worried about one or two, whether they'd roll along and get out on time.
We got them out.
In that respect it was just like any other year, you were working on those cases and getting them out.
HAROLD HONGJU KOH: Did you feel at any point any sense that you had made the wrong decision or wish that you could take it back?
JUSTICE BLACKMUN: No.
This question has been asked of me a number of times over my twenty-four years here.
"Is there some case where you wrote and wish you hadn't written and would do it the other way? "
And the answer to that is definitely no.
There are one or two instances where I probably would have written a little differently from the way I did eighteen years ago, or something like this.
There's one case, and I can't quite give you the name of it, where I joined Byron White in a concurrence that today I probably would've joined the majority in, but the result was the same.
Apart from that I have no feeling of having decided or having made my decision wrongly in any way.
HAROLD HONGJU KOH: Tell me about the last day on the Court and how that went.
JUSTICE BLACKMUN: Well, of course, this year was different from other years.
For me it was a much more emotional year.
Knowing it was the last one.
The others didn't have that feeling; I did.
Of course, after twenty-four terms, the last one I suppose is a little different.
I do not deny that there is some pain in this transition from being an active justice and going into retirement.
But I think the last arguments sailed off as they all do.
I felt a little inward quiver when I walked off the bench at the conclusion of the last argued case in April.
Knowing that while I'd be back on the bench for announcements and that sort of thing, I wouldn't be on that bench anyway for any argued case ever again.
It's just like closing the chapter in one's life and moving on to a different chapter.
HAROLD HONGJU KOH: And the last day of the term, how did that go?
JUSTICE BLACKMUN: As I recall, this was the thirtieth day of June this year, and we brought down a few cases, I think I had one or two, and as you know we announce them in order of juniority.
The chief justice had the Madsen case to announce, and so I finished mine, and then he announced the Madsen case, and Justice Scalia orally announced his dissent in the Madsen case.
So that was a little unusual ending the term with a voice raised in dissent on the last case announced.
I had the feeling, I may be completely wrong in this, that the chief justice was rather annoyed about having the dissent read, annoyed about the timing of it.
We all have a right to read a dissent, of course, if we want to.
But at least I remember, I thought he kind of huffed off the bench as I followed him.
But that was the end of it, and the chapter was closed.
HAROLD HONGJU KOH: Your exchange of letters with the Court, the farewell letters, was that also read from the bench?
JUSTICE BLACKMUN: The letter that was signed by all of the justices to me was read from the bench.
That's a letter that normally is written, is composed by the chief justice.
And I'm sure that Chief Justice Rehnquist wrote this one.
And they signed it, and then I had a response to it.
Those too were read from the bench.
To my amazement, the Washington Post published my dissent the next day without comment.
It just put it in the box, published it.
HAROLD HONGJU KOH: When did you write it?
JUSTICE BLACKMUN: When did I write it?
Sometime in advance of that day.
Actually in advance of receiving the letter from them.
I knew a letter would come in; it always does.
I took a little time in writing it.
I didn't want to dash it off and not have it in the form I wanted it.
So maybe a month beforehand.
Went through a few drafts and fixed it up.
HAROLD HONGJU KOH: Did you have visitations from other justices?
JUSTICE BLACKMUN: Yes.
Yes, David Souter came down.
Ruth Ginsburg, to my surprise, came down, into my chambers, yes.
Then of course some letters came in from most of them, not all of them, but from most of them.
And then they were plagued with what the media does all the time.
They want comments from the remaining justices about the one who has retired, or if a justice dies they always want comments about that.
There were those, they're usually syndicated, some papers publish them, others do not.
They're in my files.
HAROLD HONGJU KOH: This is actually a very exciting term, apart from your retirement.
One of the things that you just mentioned was the arrival of Ruth Ginsburg.
What had you known about her before she came and how did you find her after she arrived?
JUSTICE BLACKMUN: Well, let me speak generally about the term.
I think the term as a term was rather ordinary.
We didn't have any major blockbuster cases like Bakke or the Pentagon Papers or Roe against Wade or anything like that.
This is not to say that the cases were not important.
Every case that comes is important at this level, It's particularly important to the litigants, of course, which, I think, sometimes the Court forgets about.
But apart from that I thought it was rather routine, and I haven't any particular comments to make about the term I suppose.
It affected me more than the others because I knew it was the last term, so it had that emotional overlay that was there.
HAROLD HONGJU KOH: Did you start the term knowing it would be your last term?
JUSTICE BLACKMUN: Well, pretty well, pretty well.
And certainly by mid-term I knew it was because Renaissance Weekend came along at New Year's, and I had told Mr. Clinton of my intentions.
The thing went along generally.
Of course it seemed a little strange for me to sit to the right of the chief justice as the senior associate.
I remember others preceding me who had sat there, particularly Hugo Black.
With it, of course, comes the assignment power to the extent that the chief is not in the majority and the senior associate is.
That comes along.
I suppose the term was notable for the fact that it was the first time we've had two women on the Court, one appointed by President Reagan, the other one appointed by President Clinton.
It was interesting to me to watch the reactions between the two.
They're very different.
They're very respectful of each other.
I didn't sense any political leaning that was demonstrated, that is, Justice O'Connor didn't decide a case a certain way because she was a Republican and Justice Ginsburg didn't decide it another way because she was a Democrat.
Justice Ginsburg had argued a number of cases before the Court as an advocate, cases largely concerned with women's rights.
She was an able advocate, she knew her way around, did a very presentable, acceptable job of advocacy in connection with those cases.
I suppose I was a little surprised at her appointment as I am with the appointment of anybody.
I mean, how does any person get to be appointed out of the thousands of lawyers that are out there, hundreds of them that are fully qualified.
The president had certain things in mind I suppose.
She, Justice Ginsburg, is able and articulate, she knows her way around, she's always prepared.
She's a little late in conference sessions.
She and Justice Scalia are always the last to come in.
It annoys the chief justice on occasion.
I don't believe that Justice Ginsburg is aware of his annoyance, but every now and then he would sniff and snort and say, "where are these two"?
who hadn't come in yet.
As we go on to the bench, the three in the center go first and the three to the right, looking out on the audience, go next, then the three to the left, and always the three to the left were kind of dawdling along and among them were Justice Scalia, Justice Souter, and Justice Ginsburg.
To my surprise she, Justice Ginsburg, asked a lot of questions.
That prize had always been taken before by Justice Scalia.
But whether she wanted to emulate him or to out-do him I don't know, but nearly all of the questions were asked from that side of the bench.
Justice Souter, who sits between them, I think in self-defense felt he had to ask a number of questions too.
One time in a couple of related cases that were argued in tandem during a morning for two hours, I, just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel.
Justice Souter had about ten or so in the two cases.
The result was often that counsel never could get his case argued.
One of them always said,
"Now counsel, before you begin your argument, will you answer this question. "
and from then on poor counsel never got to his notes.
It was a little disturbing at times.
And I'm told Justice Ginsburg, when she was on the court of appeals, was fairly quiet, she asked very few questions.
HAROLD HONGJU KOH: We should probably wrap up this session.
After they can change the tape, we can start with the term as it began rather than as it ended.
