Transcript

HAROLD HONGJU KOH: Mr. Justice, during these peaceful years that you were in Rochester, was a turbulent time for the American society, particularly the Korean War and the battle over school desegregation led by Thurgood Marshall, who later became your friend and colleague.

What are your memories of the Korean War and about the school desegregation battles?

JUSTICE BLACKMUN: Well, it's a long time ago, of course now.

The Korean War bothered us because a lot of young people from the Rochester area and actually from the clinic went over there.

There was a clinic surgical group actually, I've mentioned Sandy Keith's service over there and his return.

These were disheartening days.

It just seemed that the world was full of misery and fighting and the like, but it seems always to be the case, even until today.

HAROLD HONGJU KOH: Do you remember the Steel Seizure case in 1952, Youngstown?

JUSTICE BLACKMUN: Yes, I do, indeed, and the tumult that resulted from it.

It was an audacious move on the part of the president.

HAROLD HONGJU KOH: Well, it was interesting because Chief Justice Rehnquist, who at the time was clerking for Justice Jackson, has sometimes suggested in his own writings that if the Korean War had been a declared war, that the Supreme Court might have upheld the steel seizure.

Do you remember thinking at the time that that was presidential over-reaching, or were you on the side of Truman?

Did you have a strong feeling about the case?

JUSTICE BLACKMUN: I didn't have a strong feeling about the case.

There was feeling, of course, in the community pro and con as to whether it was over-reaching or not.

I think my own feeling was one of sympathy for Mr. Truman at the time.

He was a practical guy, not always popular, but I think probably will go down in history as one of our greater presidents.

HAROLD HONGJU KOH: How about the school desegregation battle and Thurgood Marshall.

Do you remember much about that?

JUSTICE BLACKMUN: Not a great deal.

I suppose in part because it wasn't a problem in Rochester.

We had very few African-Americans living there.

When it came along, all of a sudden the community was aware that they lived in two or three houses on one part of town right adjacent to each other and that's where they were.

There was no African-American on the clinic staff.

Then of course, there was always the problem of what if one was an ob/gyn, etcetera, etcetera, those old ghosts of the past that I think we have overcome.

But we watched it from afar.

Tried to, I almost hesitate to use the word, tried to liberalize the staff and the local thinking generally.

It was not easy because not all of our Section of Administration were agreed about it.

HAROLD HONGJU KOH: When you first met Justice Marshall on the court and you began to reminisce about his time litigating these cases, were you struck by the differences of your experiences in the fifties, yours and his?

JUSTICE BLACKMUN: Well, they certainly were different I think the greatness, this will be a controversial remark, I think the greatness of Thurgood Marshall lies in his years of advocacy, when he was a lawyer bringing Brown against Board of Education along.

I think in a way he was happier then than in the years following his nomination and confirmation as a justice of the Supreme Court.

I think he liked the fray, liked the battle.

But that's just my opinion.

HAROLD HONGJU KOH: Did you hit it off with him quickly or did it take a while for the two of you to warm up to each other?

JUSTICE BLACKMUN: Well, I never did know about his attitude toward me.

He was always kind and nearly always we sat next to each other in the conference, not on the bench, because we just happened to be on opposite ends of the bench all the time.

We joked a lot.

I heard a lot of Thurgood Marshall jokes that nobody else heard, he'd lean over and tell me them.

I had a lot of respect for him.

HAROLD HONGJU KOH: At the beginning of your time on the Court, you and he often voted on the opposite side, and by the time you were both done, you were often together.

Do you remember a feeling of closeness or a time when there was a turning point in your relationship in some way?

JUSTICE BLACKMUN: No, not particularly, not particularly.

Maybe I changed more than he did.

Although I'd deny that too.

HAROLD HONGJU KOH: During the period that you were in Rochester, did you see your mother very much and your sister very much?

JUSTICE BLACKMUN: Not as much as I should have, of course.

She was living in the suburbs of St. Paul actually, for a while and then she entered a home over in Minneapolis.

I spoke to her every week by telephone, on Mondays.

Of course, I had a sister living at that time, who was in the Twin City area.

I would try to get up, make a special trip to the cities to visit my mother and have dinner with her at least once a month.

HAROLD HONGJU KOH: Was she happy with your decision to live in Rochester?

JUSTICE BLACKMUN: Well, I think she was disappointed we were that far away, especially when the children came along and she wasn't able to spend as much time with them as she would have liked, but she was a great lady.

HAROLD HONGJU KOH: How much did you see Judge Sanborn during these years?

JUSTICE BLACKMUN: Not a great deal, but I always kept in touch with him mainly because I thought he was a good friend and a great judge.

And I liked to be aware of what was going on with him and the Eighth Circuit as far as whether he was happy there or not.

His wife died, and I knew he was lonely.

So there were times, not as frequently as I went up to see my mother, but there were times when I went up specially to St. Paul to have dinner with him.

We'd always go to the Minnesota Club there, and I think he was pleased.

HAROLD HONGJU KOH: One thing people want to know is how exactly did you develop your work ethic, which has really become your mainstay throughout your career.

You work very long hours, you're extremely meticulous, you take tremendous pride in your work.

Where did that come from do you think?

Did your mother or Judge Sanborn play a role in developing that in some way?

JUSTICE BLACKMUN: Well, they were both hard workers, no question about that.

I could easily say, especially on the court, I worked long hours because I was dumber than the rest of the guys and took maybe longer to come to a conclusion.

But I think it all goes back, maybe... and I haven't really thought this through, Professor Koh... it goes back to the fact that I had to earn my way through college and law school.

Hours were precious, time was precious.

When I was driving the coaching launch, which was my best job, there were six hours, almost the best hours of the day out on the Charles River.

So to keep going I worked late, always until midnight.

Now I couldn't do it, I get too sleepy, but in those days I managed to keep ahead.

I suppose that's where it developed.

HAROLD HONGJU KOH: And your sense of self-discipline and healthiness, did that come from your days in Mayos, do you think?

Exercising and keeping to the same schedule.

JUSTICE BLACKMUN: Well, maybe a little bit but it was accompanied by the fact that I always felt better if I exercised a bit and decided that the way to exercise was to do it consistently at a certain time, then I wouldn't miss out.

And during the weekends, Dottie and I would try to get in some walks and that kind of thing.

But I think that exercise kept me going.

I don't believe I'd be here if I hadn't indulged in it one way or another.

HAROLD HONGJU KOH: When did it first enter your conscience that you might become a federal judge?

JUSTICE BLACKMUN: People, especially young law students, often ask, how do you get to be a federal judge?

I don't think there's any set formula for that.

Because every federal judge I've known, when I've discussed his appointment with him, has a different story to tell.

Chief Judge Arnold of the Eighth Circuit flatly says he got to be a federal judge because he knew a United States Senator intimately.

Well, maybe so.

I suppose one has to be at the right place at the right time.

Eventually there comes a point where one has to let it be known that he would be interested in a judicial appointment and certainly one has to work hard, do well, make friends with other lawyers, treat them honestly, your word has to be good.

If they get to like you, why, then when the time comes you're a possible candidate I suppose.

As far as I was concerned I never thought there was any possibility of the thing, of its happening, but it certainly did happen.

HAROLD HONGJU KOH: Do you think there is any one person who is the moving force?

JUSTICE BLACKMUN: I think John Sanborn was.

Now I'm speaking of my appointment to the Court of Appeals, when I first went on the federal bench.

He called me up to St. Paul one day and, as I recall, it was a very inconvenient time for me to go.

There was something pending that I wanted to work on that night, but I went up and we had dinner together and he said, I'm getting along, in my late seventies and I'm thinking of taking senior status... as they called it in those days... and would you consider an appointment as a United States Circuit Judge?

Well, this sort of startled me deeply because I never associated being a federal judge had anything to do with the appointment of one's successor, can't imagine it really, usually it's just the opposite.

And we talked a little bit about it, about his own feeling as having been a federal judge for a long time, both a district judge, a federal district judge, which I never was, then on the Court of Appeals.

He should have been down here and not I.--

HAROLD HONGJU KOH: Do you know if he was ever seriously considered for a Supreme Court seat?

JUSTICE BLACKMUN: --I think his name crept up here and there, yes, in the earlier days.

But the next thing I knew after that dinner conversation was that he went to Washington.

I hear this from him and his secretary that he went in to see the attorney general who then was William P. Rogers.

I suppose he saw a couple of others.

HAROLD HONGJU KOH: Arthur Vandenburg?

JUSTICE BLACKMUN: No, his name eludes me, I know it just as well as anything.

But I think he was just very blunt about it and said here, I'm ready to take senior status, but I want to know who is going to be my successor.

I'd never heard of such a thing, but he had enough stature that apparently it had a lot to do with my ultimate nomination.

Of course, I wasn't the only name that was pitched around, there were others; good ones.

There was a St. Paul lawyer and others out in the field whose names were advanced.

I'm sure had I been with the Dorsey office I wouldn't have made it at that time.

HAROLD HONGJU KOH: Was that unusual for someone to go directly to the Eighth Circuit without going to the district court first?

No, not any more unusual than it is now.

There are a lot of circuit judges around that haven't had district court experience.

I think maybe one is a better appellate judge if he's had some district court experience, but I don't know what kind of trial judge I would have made, probably a bad one.

It didn't bother me too much.

I liked the scholarship of the law and went into it accordingly.

Were there any other people who played a role in firming up your nomination?

JUSTICE BLACKMUN: At that time I don't think of many, no.

There were a lot of them later in 1970 who advanced themselves and said that

"I was responsible for your nomination. "

There must have been twenty who were responsible.

HAROLD HONGJU KOH: And when did it become final?

Was there a long period of indecision before you found out that you were going to be nominated for the Eighth Circuit?

JUSTICE BLACKMUN: No.

The time element eludes me a little bit, but it certainly wasn't very long.

The nomination came along and then there were instructions about getting down here for a senatorial hearing and that went off almost too expeditiously.

HAROLD HONGJU KOH: Can you tell us about that hearing?

JUSTICE BLACKMUN: The hearing came up right at the time of the anticipated visit by Khrushchev to the United States.

That was the time when he took his shoe off and banged it on the table as I remember.

The Senate indicated a desire to adjourn and not be in session when he came because they didn't want to face the prospect of his asking for permission to address the Congress.

So my hearing was held on the last day, as I recall.

There were two or three of us who were up for the confirmation action.

A senator from North Dakota, Senator Langer, was chairman of the panel, Senator Dodd was on it.

I've forgotten who the third one was.

HAROLD HONGJU KOH: Tom Dodd of Connecticut?

JUSTICE BLACKMUN: Yes.

I had been told by someone who said that if Senator Langer was presiding he would ask one question, and that was

"Mr. so and so, state the rule in Shelley's case. "

Well, I thought this was a strange observation but, I was naive enough to look up the rule in Shelley's case to get it under control and sure enough that was the question that came out.

HAROLD HONGJU KOH: That was the only question?

JUSTICE BLACKMUN: From him.

He said,

"I have no more questions, Senator Dodd, do you have some questions? "

So it went down that way.

They whipped us through fairly fast and the one following me was Mr. Timbers, who later went on the 2nd Circuit.

He was up for nomination to the Second Court at that time but ran into some difficulty.

There was opposition, and they didn't confirm him, that panel didn't confirm him at that time so his nomination dragged on for some time and I think had to be resubmitted.

HAROLD HONGJU KOH: What role did Hubert Humphrey and Eugene McCarthy play in this?

At what point did they come into the picture?

JUSTICE BLACKMUN: They, of course, appeared before the panel.

It must have been very difficult for them because they really didn't know me.

Here I was being appointed by Eisenhower and they were both Democrats.

Hubert, in his typical way, got up and gave a laudatory, fairly lengthy speech, and I didn't know whom he was talking about.

I owed him a lot, he was very, very nice.

I think it goes back to the time that, when Hubert first ran for public office, for Mayor of Minneapolis, I punched door bells for him.

Not so much maybe that I was so pro-Humphrey as I was anti his opponent at the time.

But he was aware of it; he never forgot it.

And of course, Senator McCarthy came along.

It must have been a very difficult period for Senator McCarthy to be a junior senator to somebody like Hubert Humphrey.

Hubert was so much out in the open, so vocal and talkative and the like.

I remember walking down, I think after that hearing, with Senator McCarthy down the hall... I shouldn't say this, I guess... when he said,

"You know, sometimes Hubert forgets that I'm a United States Senator too. "

But they were both very nice.

Eugene McCarthy was... as I say, it was hard, I'm sure, for anybody to be junior to Hubert and also to have the same name as the senator from Wisconsin.

HAROLD HONGJU KOH: It was only nine years later that Hubert Humphrey ran for president and Eugene McCarthy helped basically to dump Lyndon Johnson.

Do you remember how you felt during that period about seeing the two of them in this different role in American history?

JUSTICE BLACKMUN: I don't remember how I felt.

I don't mean to dodge your question.

I really don't.

HAROLD HONGJU KOH: How did your family feel about your becoming a judge?

JUSTICE BLACKMUN: I don't know, really.

I was rather pleased.

I thought maybe that I could do it successfully and I, of course, was complimented by Judge Sanborn's confidence.

It meant again a reduction in salary.

Dottie said,

"You used to tell me that your father always preached to you about being loyal to your employer and never changing a job if somebody else offered you a hundred dollars a month more. "

"And now you've made two changes, once out of Dorsey's to Mayos and now out of Mayos to the bench and each time your salary goes down. "

"I think you better stop changing around because the girls are growing up. "

Their education was ahead of us.

But again she accepted it, and we went along.

HAROLD HONGJU KOH: Was there any pressure for you to move back to Minneapolis?

JUSTICE BLACKMUN: I was concerned about it because we liked Rochester and the girls were in school obviously, but I thought surely I'll have to go back, maybe to St. Paul, which for a number of reasons I wasn't too enthusiastic about.

But to my amazement when a representative, I suppose it was GSA, came out and said, where do you want to live, well I said, my preference would be to stay right here.

I thought those were wasted words on him and he said maybe we can work it out.

At that time Olmsted County, which was where Rochester-was, had just built a new courthouse and had properly built it for larger than its present needs.

Lo and behold he worked out a deal between the federal government and the local government and I had my chambers in the Olmsted County Courthouse for a while.

I think I was the only federal judge that was housed in a state courthouse.

Eventually I had to move out of there, and they worked out another place for me in a high rise apartment.

But that enabled us to stay in Rochester and bring our family up without going back to the cities.

HAROLD HONGJU KOH: Did you feel all that wistful about leaving Mayos or did you have a sense of unfinished business?

JUSTICE BLACKMUN: Yes, Mayos, I have such a high regard for them.

That's what I went to Rochester for and now I was deserting them.

But I felt it was the right thing to do, and we did it.

HAROLD HONGJU KOH: What do you remember about the Eighth Circuit when you went on?

Who were some of the personalities and how did you feel about them?

Let me just go down the list, Harvey Johnsen I guess was the chief judge at that time.

Was he a contemporary of Judge Sanborn's I guess?

JUSTICE BLACKMUN: He was and the two of them were very good friends.

Harvey Johnsen was out of Nebraska and a Democrat.

A steel-trap mind.

John Sanborn said

"Harry, you're going to like Judge Johnsen, you will just love him. "

Actually I was deeply disappointed because I found Judge Johnsen very cold and hard to get to know, utterly unlike Judge Sanborn.

Example: My first session in St. Louis he said,

"Judge, I'd like to have breakfast with you tomorrow morning. "

"I'll meet you down here in the dining room... everybody stayed at the Mayfair Hotel in those days... at seven o'clock. "

I got down at three minutes after seven.

He was sitting in a table by a window and I walked in and he said,

"You're late. "

"No smile on his face. "

you're late.

"Well, from then on we were at cross-purposes for a while. "

"But we got along very well. "

"But Harvey Johnsen, I don't think he had any humor in him at all, but he was a good judge. "

"Why the closeness between Sanborn and Johnsen developed I'll never know. "

"But he was there, I suppose the next one... who-- "

HAROLD HONGJU KOH: A.K. Gardner.

JUSTICE BLACKMUN: --A.K. Gardner was out of Huron, out of South Dakota, anyway, and was, I think in his nineties when I went on the Court, had been there for a long, long time as senior judge.

In fact he prevented, because he stayed on, he prevented John Sanborn's ever taking on the chief judgeship of the Circuit, which I personally didn't like because Sanborn had some ideas of what the Circuit needed.

But A.K. stayed on, he liked it and he was a good judge.

Except as he got older he got a little blind, as one does, and at age ninety he bought a new shotgun, loved pheasant hunting.

I noticed all of his friends at that point didn't go pheasant hunting with him anymore because of his loss of sight.

Of course that's the ritual out there in Dakota and a good part of Minnesota.

Come October everybody goes pheasant hunting and duck season comes along and so forth.

HAROLD HONGJU KOH: Joseph Woodrough?

JUSTICE BLACKMUN: One more thing, if I may, about Gardner, maybe I shouldn't say this, but Chief Justice Burger had a couple of cases out in the Eighth Circuit and Gardner wrote both of them and wrote them for Burger's opposition.

Burger thereupon decided that age ninety was much too old to sit as an active judge and as a result of that, because of his connections here in Washington, came the Burger Bill which, to this day provides that one doesn't become chief judge after age seventy.

He steps down and he doesn't get appointed, I think, after age 65 unless certain conditions are met.

That was all due to A.K. Gardner.

HAROLD HONGJU KOH: Is this when Chief Justice Burger was at the Civil Division of the Justice Department?

JUSTICE BLACKMUN: Yes.

Whom did you name, Joe Woodrough?

HAROLD HONGJU KOH: Joe Woodrough, of Omaha.

JUSTICE BLACKMUN: Of course, from here on in, these are all Democratic appointments.

Joe was a wizened little fellow, a Texan with a Texan drawl, but he transplanted himself to Omaha, and was active in politics and got appointed.

I always kind of liked him, because he wasn't an outstanding judge, but he was full of Texas lore and Texas stories.

He did two things that worried the rest of us.

He wore white socks all the time and insisted on everybody else wearing white socks.

He said it should be a symbol of the Eighth Circuit.

Well, we resisted that.

But the other thing that did concern us was, he'd get up at four or five o'clock in the morning and take a walk.

And he always went across the Edes Bridge, over the Mississippi River into East St. Louis for breakfast, alone.

East St. Louis was a tough town; it was then, it still is, I guess.

HAROLD HONGJU KOH: How old was he then?

JUSTICE BLACKMUN: He must have been in his sixties.

He was not young.

We thought that if anybody over there in that crowd discovered he was a federal judge, why, he'd have some problems.

But he laughed at the rest of us, and then he walked back and always showed up in time for court.

We worried about him because he was just a little fellow, he could have been harmed.

Who came next, Van?

HAROLD HONGJU KOH: Charles Vogel.

JUSTICE BLACKMUN: Charlie Vogel of course came out of Fargo, very lovable guy.

Got to be a good friend of mine.

I liked Charlie.

He and I hit it off I suppose because we both came from the north end of the circuit.

Charlie Was somewhat active in Democratic politics in North Dakota.

Of course you don't have to be too active because you'd be known for it.

Nearly all the people are in the east end along the Red River and Fargo and those cities.

But he was a good lawyer and head of a fine firm.

HAROLD HONGJU KOH: Martin Van Oosterhout.

JUSTICE BLACKMUN: Martin Van Oosterhout was the "big judge", we called him, he was a large man, not just fat, you couldn't call him fat, he was just big, but with one of the most lovable dispositions that one could have.

Good judicial reaction.

He was not a particularly good writer in the sense of a smooth writer like Felix, but he had great judicial reaction, good judgment.

I grew very fond of him.

He was a good friend to all the rest of us.

When the load of bricks landed on me in 1970, we were sitting together, he and I and, I think, George Register, who was a district judge out of the Dakotas.

The word came in; it was passed in to me on a little a piece of paper that my nomination was seriously under consideration, When we left the bench that noon, there was an army of reporters out in the hall, the hallways in that federal building were fairly narrow so they filled it.

I had all I could do to get out of there.

Judge Van said,

"Harry, I think you ought to go home. "

He said,

"I'll take over, I'll get Roy Harper downstairs to sit in your place but I think you should get out of St. Louis. "

But this was his normal reaction of tender regard for his fellows and everybody else,--

HAROLD HONGJU KOH: You didn't see any jealousy on the part of the other judges.

JUSTICE BLACKMUN: --I never felt it.

There might have been but they didn't let me feel it.

HAROLD HONGJU KOH: Judge Matthes, Marion Matthes.

JUSTICE BLACKMUN: Marion C. Matthes was from St. Louis.

He really came from the boothill country of Missouri, where the little nub goes down into Arkansas.

A fine judge, a nice person.

I liked Judge Matthes.

Had a little bit of an unhappy life, particularly the last years, but he was a good person.

He was immediately senior to me as I remember.

HAROLD HONGJU KOH: Now, of these judges, how many of there had been judges when you were a law clerk?

JUSTICE BLACKMUN: Gardner must have been.

I don't think any of the others were.

HAROLD HONGJU KOH: Did you find it intimidating to be the "new kid on the block" with some of these "old-timers"?

JUSTICE BLACKMUN: Sure, sure.

But John Sanborn helped me get over that hump.

As I remember, the chief judge of the Eighth Circuit was Kimbrough Stone, of Kansas City, who was another cold fish, from a personality point of view.

He was the son of a Missouri senator.

Good judge, I think, good average judge.

He must have viewed me with suspicion a little bit, but we got along all right.

HAROLD HONGJU KOH: Were there any rivalries or internal court tensions or was it a very congenial place?

JUSTICE BLACKMUN: On the Eighth Circuit?

HAROLD HONGJU KOH: On the Eighth Circuit.

JUSTICE BLACKMUN: I never felt any rivalries, well with one exception which I won't go into but, by and large I think we were a happy group.

And one reason was that we all lived in the field.

We didn't all live in St. Louis.

I thought that when I was first appointed I might have to move down there.

The Seventh Circuit, nearly everybody lives in Chicago and the Second Circuit, everyone's in New York, more or less.

But, we lived in the field, and I think one result of that was that we were always glad to get to St. Louis to see each other again.

We did everything by correspondence or by telephone.

It generally, I think, was a happy court.

HAROLD HONGJU KOH: Did you take your meals together?

JUSTICE BLACKMUN: Yes.

Always had lunch together.

That was a time... we usually sat in two or three panels and so going to lunch together enabled each panel to tell the others what was on their calendar that day and enabled us to know what was going on.

We always were in a little bit of concern... one panel might decide an issue this way while another panel was thinking of deciding it the other way.

As I say, we all stayed at the Mayfair Hotel, which was a nice hotel.

It was run by a woman named Julia King, whom we all admired and liked.

We didn't have breakfast together except if somebody went down, Judge Van was alone, I'd sit down with him.

I think it was at eight o'clock we would assemble in the lobby, and there might have been six or seven or eight of us.

We'd go out the door together.

Turn left for a half block, left, then right, finally get down to the federal building.

And they always lined up in order of seniority.

I noticed this, I was keeping my eyes open as to how to act.

The chief judge was up there and the senior was next to him and down we went and I tagged along at the end.

I'll never forget one of those early days we were going down the street this marching crowd of federal judges and lo and behold the light turned red.

Everybody stopped.

I knew we had to cross the street to the right, and I made the helpful suggestion,

"Why don't we go on the green light across the street? "

Everybody turned around and glared at me, as though one never changed the route.

We go down on this side of the street and keep your mouth shut.

Don't give us these foolish ideas.

I learned a lot that very first march.

Everything was done the way it always had been done.

HAROLD HONGJU KOH: Judge Sanborn continued to sit, I guess, for some time after he retired from active service?

JUSTICE BLACKMUN: Yes, he did indeed.

As a matter of fact, my first sitting was with him.

Now whether he was responsible for that, had asked Harvey Johnsen to do that or not, I don't know.

But anyway, I had the privilege of sitting with him.

Harvey Johnsen did me the courtesy also, of that first session, of having me sit with a different panel each day, so that on that first session I sat with every judge on the court, which I thought was a nice gesture on his part.

HAROLD HONGJU KOH: Your first set of opinions, were they without dissent?

Do you remember?

JUSTICE BLACKMUN: Yes, I think so.

I well remember the first dissent that came along.

I was hurt that anybody would dissent.

HAROLD HONGJU KOH: Do you remember what kind of case it was?

JUSTICE BLACKMUN: No, I don't.

I could find it easily enough.

HAROLD HONGJU KOH: How often would they go to an en banc?

JUSTICE BLACKMUN: Very seldom, really.

The Eighth Circuit didn't indulge in en banc cases.

We had a few all right.

Pope against the United States was en banc.

I've forgotten, maybe the Tinker case, yes, I'm sure the Tinker case went en banc.

HAROLD HONGJU KOH: Tinker v. Des Moines?

JUSTICE BLACKMUN: Yes.

Where school children were wearing black armbands in protest of the Vietnam War.

That went en banc.

But by and large, the senior judge didn't like them very well.

They took a lot of time, of course, and you had to bring everybody into St. Louis or St. Paul wherever we were sitting and not everyone of us went to every session.

HAROLD HONGJU KOH: Was there a lot of informal consultation about cases, over meals?

JUSTICE BLACKMUN: Over meals, yes, yes indeed.

Especially at noon.

We nearly always ate at one of the hotels in St. Louis, when we were there, and they would save tables for us.

As I say, our panel would discuss our cases with the other panels and so forth.

HAROLD HONGJU KOH: You ended up writing two hundred and forty opinions on the Eighth Circuit If you had to pick the case that you felt most strongly about of the two hundred and eighty, what would it be?

JUSTICE BLACKMUN: That's a hard one.

Probably the death penalty cases Feguer and Maxwell against Bishop.

Some of those along the line there.

In one of them where I expressed my antipathy for the death penalty.

Feguer, as I recall, was the last federal execution for a long time, and it hit us, and I caught the opinion to write.

HAROLD HONGJU KOH: Now this ease involved someone who killed a surgeon.

Do you remember that hitting home, because of where you had just been?

JUSTICE BLACKMUN: No, not particularly.

But as I recall, it was up, didn't he run across the Mississippi River over into Illinois, and they picked him up there and made a federal case out of it in some way?

HAROLD HONGJU KOH: What's striking about that is the extent to which you discussed the court's obligation in a capital case to use care to examine every part of the record.

Did you have a sense at the time of how momentous the death penalty process was... did you feel that in some way your court was almost the last word?

JUSTICE BLACKMUN: No.

No, I can't assume that.

That sense of the future, at that point.

HAROLD HONGJU KOH: How about the case Maxwell v. Bishop where you actually made the statement that you personally had an antipathy to the death penalty and then two other judges ended up not joining that comment.

JUSTICE BLACKMUN: Well, that put me on record as far as my personal attitude toward the death penalty was concerned.

I wanted to make it but I certainly didn't want to involve them in it.

I'd forgotten, it was Judge Vogel and someone else.

HAROLD HONGJU KOH: Judge Matthes.

JUSTICE BLACKMUN: Judge Matthes.

I'm glad I made the statement at the time, because it came to the fore in 1970 when I was nominated here.

I remember there was an interview and some reporter asked me about the death penalty, and I told them what I thought, I didn't like it.

And Chief Justice Burger called me by telephone, he said,

"Why are you expressing an opinion on issues likely to come before the court? "

I said, I'm already in the printed record on the death penalty so it doesn't add anything new.

He hadn't realized that I had that paragraph in Maxwell against Bishop, so he forgave me for it.

I didn't talk about other issues, but I wasn't afraid to talk about the death penalty.

HAROLD HONGJU KOH: You've talked about when you came to the Supreme Court, and Justice Black encouraged you not to show your anguish.

But it sounds like you actually became comfortable with expressing your feelings about cases from the very beginning of your time as a judge.

JUSTICE BLACKMUN: Well, I guess I did on the Eighth Circuit, nobody told me not to, the way Hugo Black did.

I'll never forget... have I said this before in this thing?

I'd circulated some case, one of my early ones, and he called and said,

"I'd like to came down to your chambers and talk about this case. "

I said,

"you stay where you are, I'll come up to yours. "

after all, Hugo was in his eighties.

"You stay where you are, I'll come down ! "

And sure enough he came down.

I could hear him shuffling down the hall.

He came in... if this were a piece of paper, he was holding my opinion up over his head... he said,

"I like it, I like it very much because you go for the jugular. "

"Always go for the jugular. "

"But, what I don't like about it is that you talk about how difficult the case is, you agonize. "

"Never agonize in an opinion. "

"Make it sound clear as crystal and we'll get along better. "

Well, I took his advise and took the expression I had in that opinion about how hard it was and how we agonized over it, took it out.

But I broke that advice in Roe against Wade.

Paragraphs two and three, I think, I set forth that it was an agonizing opinion.

I'm glad I did.

HAROLD HONGJU KOH: What about the Pope case?

You've mentioned that as part of a trilogy of death cases.

That case I guess went to an en banc.

JUSTICE BLACKMUN: I don't remember too much about Pope.

Here was the all-American college student, fine record, scholastically, athletically, and lo and behold he up and killed a couple of people.

It created a lot of problems for us; at least they were fairly new problems at the time.

I've never known what had happened to young Pope.

We heard it, I think I wrote the initial opinion for the panel and then it went en banc.

I guess I wrote it for the en banc court.

Beyond that, the details of the case rather slip my memory, Professor Koh.

HAROLD HONGJU KOH: Well, looking back in the light of Callins, in your last term of the Supreme Court, do you think that if you would have had the freedom of not being on a lower court back then, you would have voted against the death penalty as a matter of law?

JUSTICE BLACKMUN: Yes.

But let me make this statement.

Of course I had as a precedent the position taken by Justices Brennan and Marshall, but I haven't agreed with them on their approach to the death penalty.

They've taken.

the position, and still, Justice Brennan still does when he makes public statements, that the death penalty is violative of the Eighth Amendment's proscription of cruel and unusual punishment.

I can't subscribe to that because the Constitution itself and certainly the Bill of Rights on more than one occasion, on more than one place, speaks of the deprival of life or limb or property, which indicates to me that the founding fathers and those who were in charge of the Bill of Rights regarded the death penalty as a constitutional penalty.

My antipathy for it was in its application, which is different from the Brennan/Marshall approach.

I think initially I felt if a state, and there are now two-thirds of them that have it, wanted to have the death penalty, well, that was its business and its privilege and I, while I disliked it, I would go along.

I couldn't say it was unconstitutional as violative of the Eighth Amendment anyway.

But after these twenty years, as I tried to point out in the Callins dissent of last spring, I've reached the conclusion that it cannot be applied fairly, constitutionally, and not without violation of the equal protection clause.

It's on that basis that I base my dissent.

Now, you may not agree with it.

I disagree with Justice Brennan, but we reach the same conclusion by different routes.

HAROLD HONGJU KOH: I'm struck when you read Maxwell v. Bishop.

The defendant there raises a very similar claim to that, later raised in McCleskey v. Kemp, about racial disparity in the treatment of defendants.

And what's interesting is that in Maxwell you acknowledge his claim and acknowledge that there might be some truth to it, but basically you say that you are not prepared to say at that point that there's a racial disparity in the way the death penalty is applied.

But then years later, you are ready to take that step.

Do you think it's because of some pattern that you witnessed over time?

JUSTICE BLACKMUN: Yes, indeed, I thought the facts demonstrated it.

Both in those who were subjected to the death penalty.

Certainly, there is racial distinction, racial discrimination, I'll put it that way.

I readily reached the conclusion, which others did not, that in its application it is unconstitutional.

HAROLD HONGJU KOH: Would you like to say something about Jackson v. Bishop, the Arkansas strap case?

That's another opinion of yours that became famous.

JUSTICE BLACKMUN: I always liked the result in that case.

This was where Arkansas, in its list of possible punishments, allowed the use of a strap by a trusty, a person himself.

convicted, more or less in charge of a group of convicts, out in the field working, and he was given the privilege of using the strap for punishment if he felt that somebody wasn't doing his share of the work.

And they also had the teeterboards, I remember, which was, well, as kids you sometimes stand on it, it rocks, it has a round bottom and you try to stand on it.

Arkansas permitted the sentence to say that somebody should be on the teeter-board for a certain period of time.

Then they had a refinement of it where they had a magneto of some kind with one end strapped to the convict's testicles and the other one somewhere and they'd turn it on.

Of course it gave him great pain at the time.

We held that those were unconstitutional punishments.

I've always been rather proud of that result.

HAROLD HONGJU KOH: Do you think it was a radical result for the Eighth Circuit?

JUSTICE BLACKMUN: It was at that time.

I had a feeling because some of my colleagues wondered about it.

We didn't have any violent argument about it.

I think it was a unanimous decision but, it was a little unusual to have a federal court move in on punishments that a state imposed.

My, how times have changed.

HAROLD HONGJU KOH: When you were later confirmed for the Supreme Court, you testified that in your capacity as an Eighth Circuit Judge you had tried to stand up for the little people.

Do you remember when you began to have that feeling, that that was your appropriate role as a judge?

JUSTICE BLACKMUN: I'd forgotten that I testified to that effect.

It doesn't surprise me if it's there, Well, I've always felt, and I say that in speeches today, that people are behind Supreme Court litigation.

It isn't just legal theory, which a lot of, I think, legal scholars feel it is, that that's the important part about it.

But, individual persons are affected by every decision the Supreme Court makes.

They may not be aware of it right now, but that's why I think the average person should take a distinct interest in who is appointed to the Court.

Sometimes we forget about the litigants, who they are and how they're hurt, one way or another, and I think we ought to think about them.

I chose the phrase, "little people".

I suppose, maybe that's improper, but I don't regret it.

HAROLD HONGJU KOH: I think our time is up.

We'll turn to the rest of the Eighth Circuit years in the next session and then talk about the move to Washington.

JUSTICE BLACKMUN: So I better do my homework.

End of interview