Transcript

HAROLD HONGJU KOH: Mr. Justice, if we could go back to the beginning of your last term on the Court.

You are now the senior associate justice which meant that you are entitled to assign cases where the chief justice is in the minority.

How did you feel about that?

How did you choose to exercise that power?

JUSTICE BLACKMUN: Well, of course, this is a very significant power that I think the public is not aware of.

The chief justice, as you intimated, when he's in the majority assigns those cases for opinion writing, and if he's not in the majority, then the senior associate who is in the majority has the task of assigning the opinion out for writing.

This means that the Chief Justice normally can keep those cases that he wants for himself, or he can assign them to justices that he feels will write them probably more in line with his own thinking.

After all, some justices write broadly, others write narrowly, and I suppose if he wanted a narrowly written opinion he'd give it to a justice who writes narrowly.

I've always felt this is, as I've indicated, a significant power.

It isn't set forth by statute or rule anywhere.

It has a couple of consequences naturally, and that is, when one is a junior on the Court, the most recent appointee, he gets what's left.

When I first came on, it seemed to me, I got more than my share of tax cases and things that weren't particularly interesting.

Well, how did I exercise it?

I think during this last term I had my share of cases to assign, maybe a little more than the normal share.

I tried to get that assignment out promptly because it would affect the chief justice's own assignment of those cases that he was in the majority.

I like to think that I did it fairly.

Once in a while I kept a case or two for myself, but I never assigned a case to some other justice without clearing with him first, that he would be willing to take it on.

HAROLD HONGJU KOH: Did any other justice ever approach you for an assignment?

JUSTICE BLACKMUN: There were two instances where that happened, but I, usually didn't pay much attention to that.

I personally never have asked for an assignment, for a case to be assigned to me.

I thought this was the prerogative of the assigner justice, whoever it was.

And I also learned that in the long run things balance out.

You get "good" cases, and you get "bad" cases.

Every now and then a justice is so wrapped up in a case that he wants it and wants it badly.

Maybe you give it to him; maybe he's, over-anxious, and you don't give it to him.

Many times it's his clerks that are putting the pressure on.

They want the case to work on.

I don't believe that any inquiry that I made of another justice as to whether he would be interested in writing Smith against Jones ever met with a negative response.

They're always glad to take it on, and like a good soldier they'll take it on whether it's a happy case or an unhappy one to write.

HAROLD HONGJU KOH: When you watched Justice Brennan exercise the assignment power when he was in the majority, did he have any strategies that you either emulated or tried to avoid?

JUSTICE BLACKMUN: He did it a little differently.

He didn't do it by telephone the way I did.

He always wrote a note and would say,

"Dear Harry, you and Joe and Pete and somebody else and I are in the majority here, would you be interested in taking on this case. "

"He'd do it by writing, with copies to the others. "

"I don't know whether he was ever rebuffed or not. "

"I doubt it. "

"One didn't refuse to go along with Bill Brennan. "

"He was always a gentleman and fair and nice in his assignments. "

"But I didn't purposefully emulate him, I just did it in my own way. "

HAROLD HONGJU KOH: When did you start getting assignments?

Do you remember what term?

JUSTICE BLACKMUN: Well, probably right in the October session, and it carried through the year.

It might be just one case, or it might be two that I had to assign.

Although there were a couple of instances, I think in maybe in November, where I assigned more cases than the chief justice did.

HAROLD HONGJU KOH: How did he react to that?

JUSTICE BLACKMUN: Oh well, we laughed about it.

At one point he said, you have more cases to assign than I do, and you ought to take over.

Well, we laughed about it.

HAROLD HONGJU KOH: Early in the term you had the Nightline interviews with Nina Totenberg and Ted Koppel.

What do you remember about that experience?

JUSTICE BLACKMUN: Well, Nina Totenberg goes far back in my relationship with this court.

When I was nominated in 1970, I was sitting in St. Louis with the Eighth Circuit.

We had a session on.

The news came through, and Martin Van Oosterhout, who was the chief judge at that time, said,

"Harry, you better go home and not carry on with the rest of this session; there are other pressures upon you. "

He said,

"I'll get somebody else to sit in your place. "

Well, I was gratified by that, and so my secretary and my law clerk who were with me in St. Louis at the time and I caught a Braniff plane and went back to the Twin Cities, and as we got off the plane Dottie was there waiting arm in arm with Nina Totenberg.

Well, I didn't know Nina Totenberg particularly.

But she'd been there and apparently had interviewed Dottie... she was in the early stages of her career at that time... and it irked me a little that she was as aggressive as she was.

But I think this is true of so many media persons; when they start, they want to get known, they want to make a mark for themselves, and they're a little more extreme in their approaches than they are later when they're established.

But she was around in Rochester when we had some initial interviews, and for a while I tried to have as little to do with Nina as possible.

On the other hand, I ran into some difficulties.

I discovered that her father is a rather renowned violin teacher and had appeared in the teaching experience of our oldest daughter who played the violin.

She'd taken lessons from him.

Well, as the years went by, Nina, of course, made a name for herself, and I like to think that we're good friends now.

I do trust her completely.

I think she's been very fair.

What I don't remember is why I consented to her request for an interview, because I was not giving interviews, but I did.

Maybe I thought I owed her something.

But I said yes, I would give an interview.

And lo and behold when the time came not only was she there but Ted Koppel was there, unknown to me.

And what had happened was apparently he had employed her to be part of his staff at the time.

She had this appointment with me, so to speak, so he showed up.

But they were both very kind in that interview, I thought, extraordinarily kind, both Mr. Koppel and Nina Totenberg.

He, I believe, took over, so to speak, the front seat of that interview, but I couldn't have asked for greater consideration, kindness, and gentleness than the two displayed.

I think the interview was a success.

HAROLD HONGJU KOH: Now it was in that interview that you in some ways gave a hint of the death penalty opinion that was coming later on.

JUSTICE BLACKMUN: I guess I did.

Because they must have asked me about the death penalty and capital punishment generally; I've rather forgotten the details, but I think it came out during that interview.

HAROLD HONGJU KOH: Can you take us through your thinking about the death penalty and how the opinion came to be released when it was in the Callins v. Collins case?

JUSTICE BLACKMUN: Well, the death penalty has always concerned me.

I have writings when I was on the Court of Appeals for the Eighth Circuit, which demonstrated my antipathy and opposition to the death penalty.

There's one case, I think it's called Feguer against the United States, which I believe was the last federal execution for a long time.

But I expressed in that opinion, which I wrote... it's fairly long... almost as an addendum, my opposition to the death penalty, saying to the effect that were I a legislator I would vote against the death penalty.

But that it was on the books and as judges we had to enforce it, and in the Feguer case, we affirmed his conviction, and later he was executed.

So that when 1970 came along, I was on record, definitely, as being opposed personally to the death penalty.

It wasn't anything that was unusual.

I remember in one of the interviews, when my nomination was pending, I restated my opposition to the death penalty.

Chief Justice Burger wrote me a note or called me or something, criticizing me.

He said don't comment on issues if you don't have to.

I reminded him I was already on record in the Feguer case and was not going outside and committing myself on issues that weren't before us.

But the thing has always bothered me through the years, and I think my writings on this court, there's a whole string of cases, I couldn't begin to focus on them case by case intelligently at this point, where I indicated either in dissent that I was opposed to the death penalty or in concurrence or something.

And finally that culminated in my dissent on the Callins case this last term where I said that henceforth I would always dissent in a death, in a capital punishment case, and did so from that point on for the.

remainder of the term.

HAROLD HONGJU KOH: When Justice Brennan and Justice Marshall would regularly dissent, did you ever consider joining them and making a threesome?

JUSTICE BLACKMUN: No, I never really did because they took the route via the Eighth Amendment.

They felt the death penalty was cruel and unusual punishment under the Eighth Amendment and hence proscribed.

I didn't subscribe to that.

It seemed to me that the Constitution as originally written and indeed through the Bill of Rights recognized, shall I say, the constitutionality of the death penalty as such.

There are phrases in the original Constitution I think it's Article One, section two, although I may be incorrect in that, which speaks of the loss of life or limb or being put in, this is in the Bill of Rights, in jeopardy of life or limb, which indicated to me that when one refers to life, well, there's the death penalty.

So that I would have had trouble saying that it was violative of the Eighth Amendment.

Now there's a large body of judicial thinking that is not in line with that, that is in line with what Justices Brennan and Marshall did.

So I did not join them.

But in the Callins case, I reached officially the same conclusion but did it really through the Fourteenth Amendment equal protection and, due process.

More equal protection than due process.

HAROLD HONGJU KOH: Now in the opinion you emphasize the racial discrimination in the way that it's being administered.

I wonder how that theme started to come into your thinking.

JUSTICE BLACKMUN: Well, I think the statistics concerning capital punishment show it in bold numbers and letters, actually, that there is a racial strain in the imposition of the death penalty, and there's another inconsistency.

There were two strains of legal thought developed.

One is that like cases should be treated alike; all capital punishment cases should be treated alike.

And the other strain is that every death penalty case should be considered on its facts and that the defendant in case A might well be different from the defendant in case B. And putting those two together I think we run into tension and into conflict.

And as I went through, well over most of my first twenty years here, I went along with the death penalty and the Court's constant consistent upholding of it on the theory that if this is what the states wanted I guess they were entitled to have it although I didn't believe in it.

But then I became more and more convinced as I went through, and we had the Baldus study showing, I think, racial discrimination and inconsistency in application.

It seemed to me that it was impossible to administer the death penalty in a constitutional manner, that is, equally applied to all those who are accused of a capital crime.

I felt the way the court treated them was demonstrative of that fact.

And I reached the point where I thought I couldn't go along with it any longer and that it could not be applied constitutionally.

Now this is different from the Brennan-Marshall approach on the Eighth Amendment.

But I'm persuaded in my own thinking that it's right for me anyway, even if it isn't for the other justices.

HAROLD HONGJU KOH: Now you speak about McCleskey and the Baldus study.

The recent biography of Justice Powell, by John Jeffries, makes the point that when asked if he would change his vote in any case, Justice Powell said he would change his vote in McCleskey.

Did you have any inkling of that at the time?

JUSTICE BLACKMUN: Well, I thought at the time that Lewis Powell was a little quivering in his vote on the death penalty as, I think, indeed, John Stevens has been, although he has voted consistently to uphold it.

One curious thing about my dissent in the Callins case I think is that I knew I would be out there alone, and hence I thought it wouldn't satisfy anybody except me.

But I wanted to get it off my chest.

But to my great surprise really and some satisfaction, at least it has created a lot of discussion in the academic world and in the judicial world, and I think that's all for the good.

I don't know what the ultimate result will be, but I personally would hope eventually that the death penalty would be outlawed.

Now when I say that I realize I'm swimming upstream because almost two-thirds of the states have it in effect, and it's a popular thing.

Some gruesome killing comes along, and the.

popular reaction is he should have the death penalty.

That's natural, I understand it.

But I'm just convinced that we cannot administer it equally and constitutionally.

HAROLD HONGJU KOH: Can I ask you about your personal feelings over the years?

From 1972 until probably about ten years later, there are very few cases actually coming to the Court in which the consequences of your action was that someone would actually be executed.

They would go back down to habeas and have another run at it.

But by 1982, a lot of the stays that were coming up would, if denied, actually lead to someone being executed very shortly thereafter.

How did that make you feel?

JUSTICE BLACKMUN: Well, of course it brings the finality of death into our consciousness right away, and when the proposed date of execution, however it's determined, approaches, of course, the counsel for the defendant makes motion after motion on one ground or another.

Those cases always come to the court.

Maybe I shouldn't say always, once in a while there is an instance where the defendant says,

"Don't do anything more for me. "

"I'm ready to be executed. "

"Let's get it over with. "

But nearly all of them come, and they nearly always hit us in the dead of night because executions are scheduled for... I think I know why, but they're always scheduled between, usually scheduled between midnight and three a.m. or something.

So they hit our court in the middle of the night, and we get these calls to rule on the motions and sometimes have conference calls, or sometimes we vote individually.

So that I... for me at least... I can't speak for the other justices, but the reality of execution comes into the core of one's living that way.

I don't know why executions are scheduled for the wee hours, maybe because the states were a little ashamed of them, perhaps, I don't know, or they didn't want a lot of demonstrations, a lot of people present and making a picnic out of the event.

But I've said before I think every execution lessens us all.

We ought to have a better way of solving these things than the death penalty.

HAROLD HONGJU KOH: And as circuit justice, you would get cases from Arkansas and Missouri.

How would you respond when these states would come to you first?

JUSTICE BLACKMUN: Well, Arkansas, Missouri, Nebraska were the ones that produced the capital cases.

There were certain cases where I would stay the execution if I was positive that, well, if there were an issue involved that was set for argument in the following term, then I would stay the execution.

But in nearly all the cases I did as the other justices did.

We refer the application to the conference,, that is, to the full court.

Usually the circuit justice would write a note setting forth the facts, what the rulings of the lower courts were and then setting forth his own proposed vote.

Then the whole court would take it up, usually with correspondence.

So in a way maybe one could say that's a cop-out, you're avoiding responsibility, but I think death cases, for the most part, if they are to be stayed, ought to be stayed by the full court and not by the individual justice.

And of course if I were to act in a way that another justice thought was irresponsible, if counsel brought the same case to him he could overrule me and get it that way.

HAROLD HONGJU KOH: And these late night calls, would you ever have conference calls?

JUSTICE BLACKMUN: Yes, once in a while.

HAROLD HONGJU KOH: And would there be much discussion?

JUSTICE BLACKMUN: Oh, not a great deal.

If the recommendation letter by the circuit justice was well written there wasn't much need for discussion.

But now and then, is this enough like a case that's under advisement that's already been argued, or is to be argued, sometimes we'd go over those things.

And then it was a matter really of whether we held this case for the decision in the other one.

Yes, but it was always a capital punishment case that hit us in the middle of the night.

HAROLD HONGJU KOH: And during the years Brennan and Marshall were dissenting in every case, how would they participate in these discussions?

JUSTICE BLACKMUN: Well, they would always, if it came up in their circuits, they'd send out the memorandum and say, in view of my prior votes, I shall vote to stay the execution.

Knowing as I often knew, when I referred it to the full court, that I'd be over... outvoted, not overruled but outvoted,--

HAROLD HONGJU KOH: Did any of them ever lobby you about this particular issue?

JUSTICE BLACKMUN: --No.

I don't think so.

HAROLD HONGJU KOH: When you were planning the Callins opinion, how did the choice of Callins as the case in which to file the opinion come about?

JUSTICE BLACKMUN: Well, that's a fair enough question.

I'm not entirely sure I know the positive answer to it except that I wanted, in bringing that dissent down I wanted it in a, shall I say, a routine kind of case.

Now that's a bad word to use because no murder is routine.

But I didn't want it colored by racial overtones or other factors that entered into the situation.

It was kind of a routine murder without some of the nasty facts that accompany certain of these cases such as rape and incest and disfigurement or torture.

I wanted a good, clean issue, and Callins seemed to prescribe the bill.

HAROLD HONGJU KOH: And had you prepared the opinion in advance of Callins or could you have brought it down earlier?

JUSTICE BLACKMUN: Probably so, if I'd found an acceptable case.

It was fulminating in my mind, so to speak, and I got a draft or two out, and of course you always have more than one draft, and you work on it for a while.

But Collins came along and I advised the court that I would be dissenting in the Callins case.

I advised them slightly in advance, not too far.

HAROLD HONGJU KOH: Did you circulate your opinions to them in advance?

JUSTICE BLACKMUN: Sure.

HAROLD HONGJU KOH: Were any justices surprised?

JUSTICE BLACKMUN: No, because I told them it was coming.

They accepted it.

HAROLD HONGJU KOH: And what role did the availability of federal habeas play over time?

Another theme of the opinion is that federal habeas was being carved away as a way to challenge irregularities in these cases.

JUSTICE BLACKMUN: Well, of course, there's a fair body of academic thinking, I believe, that feels the Court has been cutting down on habeas as a route to relief and that federal habeas should be confined rather than expanded.

Everyone will have his own opinion about that.

I think the Callins case maybe has served to stop that trend a little bit.

And that's why discussion about the issue is good.

Whatever the ultimate decision is, why I think the more we talk about these issues and get to the bottom of them the better off we are.

HAROLD HONGJU KOH: Do you think that the other justices will continue to talk about your opinion now that you're no longer on the court, or do you think that your departure has made it easier for them to put it to one side?

JUSTICE BLACKMUN: Oh, it's there.

It's on the books, and my guess is that they'll let it stand, and they won't talk much about it.

That's my guess, I don't know.

I hope the opposite is true, but you never know.

HAROLD HONGJU KOH: Did you get mail from death row inmates?

JUSTICE BLACKMUN: Yes, not much, but I did get a letter from counsel for Mr. Callins, enclosing a letter that Mr. Callins had written me.

When it came in I thought, oh, what will this all be about?

But it was a very nice letter.

It was two or three pages, hand-written, legible, in effect thanking me for what I wrote in his case.

But not in any way claiming innocence of the crime he had committed, which was a murder.

He took an approach that in the intervening, I think it was twelve, years, that he had matured considerably, and his only complaint was that the system didn't take this process of interim maturing into account.

That he felt he was a different person now than he was twelve years ago.

It was a nice letter, really, rather a touching letter, I really had expected a lot of excuse, talk about this was all a mistake, I really didn't mean to commit the murder, etcetera, etcetera.

Not a word of that, I responded, as I recall, through counsel.

Just acknowledged receipt of it and then the niceness of it and so forth, and so forth.

And I have heard, I think in that letter from counsel that his execution has been stayed.

On what ground I do not know.

But as of that time, and this must be a month to six weeks ago, he was still alive.

HAROLD HONGJU KOH: Have you had much direct contact from litigants in the form of mail over the years in some of your more famous cases?

JUSTICE BLACKMUN: Well, not much.

There is some.

But not much really, surprisingly.

You get a lot of mail from everybody else but not so much from the litigants !

HAROLD HONGJU KOH: I understand that Norma McCorvey, Jane Roe, has expressed a desire to meet you and shake your hand.

Is that true?

JUSTICE BLACKMUN: Well, I'm told secondhandedly that this is the case.

I've forgotten who told me, yes.

HAROLD HONGJU KOH: Now your last day on the Court, in August, there was yet another triple execution scheduled in Arkansas.

JUSTICE BLACKMUN: There were three.

In my experience that's the first time I've known of three executions set for the same time in a given state.

And they were set for, whatever it was, in the afternoon I think of the third day of August.

I knew they were coming.

We get advance information about executions that are coming up.

They're listed, the state, and the name and what the execution date is.

And so before the third of August when I was still active, Justice Breyer had not yet been sworn in, I felt obligated to send the usual information letter to my colleagues.

And so I covered those three cases, apologizing at the same time saying I didn't want to be presumptuous about it, but I was still active and thus felt obligated to do it, and stating that my own vote in those cases would have been to grant in view of my Callins dissent.

And then lo and behold Chief Judge... then Chief Judge... Breyer decided to drive from Boston up into... Vermont is it +/?

where the chief justice has his summer hideaway and be sworn in by the chief.

I learned that he was sworn in about 3:40 that afternoon.

My letter to the president had indicated that my retirement would be effective at the qualification of my successor.

So it hit right into the time of those executions, and the order was issued.

The Court, of course, denied it, denied all three, relief in all three, stating that Justice Breyer took no part.

Which meant that it was after he had taken his oath.

And, of course, it then did not mention my vote to grant because I was no longer on the Court.

So it was a curious timing consequence actually.

But they were all executed.

The State of Arkansas.

HAROLD HONGJU KOH: Over the time you were on the Court, how did the Court's mechanisms for dealing with death penalty cases change?

What was the process of dealing with stay applications and the like?

At the beginning, there must not have been fax machines or other modern apparatus.

JUSTICE BLACKMUN: Well, it moves along.

If we deny the final motion, why, word goes down by, I presume, from the clerk to the clerk of the lower court that the application has been denied.

And then usually the executing authorities go to work.

They seem to be ready all the time, ready to move almost instantaneously.

So that those stay orders on occasion, if they're to be issued, have to be issued fairly promptly.

So far as I know, no one has been executed prior to the issuance of a favorable stay order.

I don't think there's been any error in that respect.

HAROLD HONGJU KOH: Do you ever recall a time when you, as circuit justice, granted a stay and the Court overturned you?

JUSTICE BLACKMUN: I don't recall one, Professor Koh, offhand, but I don't want to say that there never has been a time.

It wouldn't surprise me, but I don't recall one.

One can sense that if his reaction is going to be different from the reaction of a majority of his colleagues, well, then you throw it to the Court and let them act.

You can protect yourself in that way.

HAROLD HONGJU KOH: What do you think is going to be the future of the death penalty in this country?

JUSTICE BLACKMUN: Well, it seems to be the popular thing to do these days.

I've read reports of death penalty legislation being introduced in states that do not have it today.

That's the current trend, that's the popular trend.

But I think in the long run the death penalty will be proscribed, either under the Eighth Amendment or under the approach that I've taken.

I think our society will mature to that point.

But right now, if one is taking that position, he's swimming upstream.

The popular opinion distinctly is the other way.

And, of course, this affects the political posture of candidates for the Congress.

HAROLD HONGJU KOH: Do you see on the current court any possibility of a change among the members?

JUSTICE BLACKMUN: On the current court?

No.

It wouldn't surprise me if maybe Justice Stevens would waver sometime.

But I'm not expecting that actually.

He's been too consistently the other way despite his concerns.

But I don't see any great hope of that kind of result being achieved.

Certainly by a majority of the present court.

HAROLD HONGJU KOH: Did any of them say anything to you about the Callins case?

JUSTICE BLACKMUN: Yes.

Well, there were telephone calls that came in from... one of them said I am very proud of you for writing that opinion.

I won't identify that person but, because that person's vote was the other way ultimately.

But I think hat person was rather gratified that I had said what I did and brought the issue out into the open for further discussion.

Sometimes one gets announced antagonism to a writing of that kind.

I experienced nothing of that kind.

The calls that came in were distinctly favorable, good for you Harry for doing this, I'll vote the other way but, good for you for this kind of thing, this sympathetic approach.

HAROLD HONGJU KOH: Over the years, has this issue been one on which, when there has been angry discussion in conference?

JUSTICE BLACKMUN: On the death penalty?

HAROLD HONGJU KOH: Yes.

JUSTICE BLACKMUN: No, there hasn't been angry discussion on that issue at all.

There has been angry discussion on other issues but not on that one.

HAROLD HONGJU KOH: When you think back to the Eighth Circuit days, do you think you should have voted differently back then on the death penalty issues or your early days on the court?

JUSTICE BLACKMUN: Well, back then I... and I think all of my colleagues on the Eighth Circuit felt that we were governed by what the Supreme Court in Washington ruled, and that kind of an issue, if it was to be, if the progress of the country was to be reversed and go off in a different direction, it was up to the Supreme Court to take that step and not to us as a lower court.

I think that was the general thinking.

I don't know whether it's right.

I think sometimes it's good for a lower court to say all the precedents are the other way, including Supreme Court decisions, but this is what we think, and then let the Supreme Court overrule it if they don't like it.

There are two attitudes one could take about that kind of thing, and as I've grown older I think maybe I wish I had done that more on the court of appeals, but you know you're on a lower court, you know there's a Supreme Court in Washington, and they're the boss, and you're supposed to follow.

HAROLD HONGJU KOH: I guess the death penalty has been lumped together with several other areas in which you came to a different conclusion over time.

How did you feel about changing your mind or changing your position on cases?

I'm thinking particularly about the Tenth Amendment area, National League of Cities and Garcia, this is another are in which you--

JUSTICE BLACKMUN: Well, I feel, Professor Koh, that I haven't changed my mind very much.

People do point to Garcia, National League of Cities as a change of mind, but I think in the earlier of those two cases I certainly spelled out the possibility that the opposite result would be reached under a certain factual showing, and it came along, and I had the chance to write it and took it.

I don't believe I changed my mind, at least I'll say that at this point.

I think the case and its posture were different the second go-around from what they were in the first.

HAROLD HONGJU KOH: --Well, in both the Tenth Amendment area and the death penalty, you explicitly spoke of an experiment that failed.

Did you have that sense as you were watching the cases come in afterwards that somehow it wasn't turning out the way that you expected or hoped?

JUSTICE BLACKMUN: Are we speaking of the death penalty now?

HK: Yes, the death penalty in particular.

Oh, I don't think I can give you a positive answer to that one.

One's hopes are always dashed, but I've learned over the years that your hopes aren't too high.

It's good to stir up discussion.

Sure.

HAROLD HONGJU KOH: The Callins opinion came in the form of a dissent from denial of cert. When you first came to the court those were almost never used as a vehicle for expression of views, but now they seem to be quite regular.

Do you remember how that started to come to be?

JUSTICE BLACKMUN: Well, I might question your statement about being quite regular because I think they're still comparatively rare.

They're more frequent than they were twenty-five years ago certainly.

I hope I am correct in making this statement.

Justice Stevens, for instance, may be against the denial of cert, but he never goes on public record to that effect.

Whereas some of the rest of us have.

I think he just feels that's Court action, and why should I dissent from a Court action as meaningless as a denial of cert.--

HAROLD HONGJU KOH: Would you have preferred to have Callins be the dissent to an argued case?

JUSTICE BLACKMUN: --No, I think it's in pretty good shape the way it is.

Easier this way in a sense.

Because I can just pick on the issue sort of in a bare and naked form rather than be cluttered with other facts in the case.

HAROLD HONGJU KOH: So you never thought of yourself as trying to gather votes for the opinion.

JUSTICE BLACKMUN: No.

I knew nobody else would go along with it.

As I've indicated I've been really surprised that it's stirred up as much discussion as it has.

HAROLD HONGJU KOH: If you don't mind I'd like to ask about some of the other cases from the last term, particularly the J.E.B. case involving peremptory challenges on the basis of gender.

What are your recollections about that case?

JUSTICE BLACKMUN: Well, that case came along in due course.

On the books was Batson against Kentucky of a few years ago.

The court had the issue in the form of race and held on bare and naked facts again that peremptory challenges solely because of race were to be proscribed.

This touches a tender spot for trial lawyers particularly.

They like peremptory challenges, and they don't want.

to lose them, and I can understand that feeling.

But Batson went on... I think there were a couple of dissents in it... but this one came along on gender.

There wasn't a great deal of discussion about it in conference.

The vote as I recall was 6-3, not 5-4, I think it was 6-3.

I know there was a concurrence by Justice O'Connor to the effect that she went along with it but that the decision was not without its costs.

I'm as convinced as I can be that this is as far as the Court will go.

I don't believe they would do the same thing on a religious basis, that is, strike a person solely because he is a Buddhist or Presbyterian or something like this.

I think that J.E.B. is the end of the line so far as peremptory challenges are concerned.

One can argue that if the court were to do otherwise that eventually peremptory challenges would be done away with.

Personally I think they serve a purpose, and while I'm not a trial lawyer essentially, I've exercised them in more than one trial and have always been glad to have them.

And I have made mistakes in doing so, exercised them for the wrong potential witness.

HAROLD HONGJU KOH: Did you do a lot of trials in which you did a lot of jury picking yourself as a lawyer?

JUSTICE BLACKMUN: I didn't do a lot, but I did a fair number.

Peremptories were something I was always glad I had.

I remember one case where we won the case in the jury finally, but they were out for a number of days.

The judge asked me afterwards,

"Why didn't you strike witness number five? "

or something like that.

It turned out that witness number five was the one that held out against us for so long.

His judgment was better than mine, he saw through her better than I did.

But I was glad to have those peremptories.

I think they're part of the tradition.

I for one wouldn't like to see them done away with, but maybe the trend is in that direction.

Certainly J.E.B. carried it along to a point, but I think that's as far as the Court will go.

HAROLD HONGJU KOH: Some commentators have seen J.E.B. as proof of a difference of view between Justice O'Connor and Justice Ginsburg on the issue of gender discrimination.

There's a footnote in your opinion discussing the possibility of moving to considering sex a suspect classification, citing an opinion by Justice Ginsburg, whereas you have Justice O'Connor's.

Do you see a split between, the two of them emerging?

JUSTICE BLACKMUN: I guess I'll give you a negative answer to that.

But I'm not too sure about that answer.

They do differ on occasion, and it's rather interesting to watch them differ.

But it's no different really from Justice A differing from Justice B when they're both males.

HAROLD HONGJU KOH: Did you ever consider assigning J.E.B. to Justice Ginsburg because of her own past role in sex discrimination cases?

JUSTICE BLACKMUN: The answer is no.

There's nothing of adverse implication in that.

I think that I was pleased with the tentative vote, and it may have been that our chambers wanted that case to write, so we wrote it.

HAROLD HONGJU KOH: Another case of this term which people felt may have put you in an unusual position was the abortion demonstration cases.

JUSTICE BLACKMUN: Including Madsen, the final case of the term, yes.

HAROLD HONGJU KOH: Right.

How did you feel about those cases?

JUSTICE BLACKMUN: I get kind of tired of all these protests and counter-protests and all the rest.

I don't know what people accomplish by picketing.

They certainly haven't affected my vote even though I've been picketed extensively.

But people get it off their chests.

And of course on the abortion issue there are extremists on both sides of the issue, and the extremists on occasion get pretty extreme, as is indicated by the murders of a physician in Pensacola, Florida.

But people feel strongly about it and seem to justify it in their own mind.

Whether Madsen was decided correctly or not, it was a little complicated.

We had the thirty foot buffer zone and the hundred foot buffer zone and whether it went around the whole clinic business or just in that part to which access to the building was available.

Those are factors I can't judge, and the Court rather compromised in its result and of course then had to take the dissent from Justice Scalia who takes rather an absolutist view of this problem.

But I was wondering what the chief would do.

He kept the opinion to himself on the Madsen case.

I was interested in how it would come out, how he would handle it.

HAROLD HONGJU KOH: I think our time is just about up.

We'll start again with a discussion of your early life next session.