Transcript

HAROLD HONGJU KOH: This is the Harry A. Blackmun Supreme Court Oral History Project.

My name is Harold Hongju Koh.

I'm a former law clerk to Justice Blackmun, and I teach at.

Yale Law School.

This is session number seven.

It's being held on 24th of April 1995, at the Federal Judicial Center in Washington, D.C. Mr. Justice, when we concluded our last session we were talking about your first impressions of the Supreme Court when you first arrived in 1970.

I'm wondering if you would talk a little bit about the lineage of your seat, which you occupied upon coming to the Court.

JUSTICE BLACKMUN: I've always felt, and I think it is generally recognized, that the lineage of that seat, perhaps is the most famous of all of them, if one excludes the chief justiceship as something separate.

Of course it's one of the originals.

It goes back to 1789 and '90, when William Cushing of Massachusetts was the first occupant.

For a while, it gave the impression that it was a New England seat, almost a Massachusetts one, because it was occupied by Story of Massachusetts; and then Woodbury of New Hampshire; and Curtis of Massachusetts; and Clifford of Maine; and Gray of Massachusetts; and Holmes of Massachusetts.

Those are all in order.

Then that lineage was somewhat broken with the appointment of Cardozo of New York; but again, Felix Frankfurter of Massachusetts; and then Goldberg, Fortas, myself, and now Stephen Breyer.

That list includes many prominent names, able jurists, and it rather impelled one, I think, to do his best.

HAROLD HONGJU KOH: Did anything pass along to you with the seat?

You mentioned a couple of times to me that you got some copies of the Constitution when you first came to the Court, but were they just gifts from other justices, or did they come with the seat?

JUSTICE BLACKMUN: No, the copies of the Constitution I referred to, I think that you are referring to, there were three copies, a little, kind of an orange covered one, that Hugo Black gave me, and he said, "Take good care of these".

One could acquire them at the Government Printing Office... price ten cents... that's what it says inside.

But now, if one goes to the GPO, it costs a dollar and a half for a larger sized copy.

I like them because I can put them in my pocket.

I think I mentioned that the first one is in shreds, the second one is lost or somebody swiped it, and the third one I carry around at appearances.

It has to outlast me.

It will.

It's in pretty good shape.

HAROLD HONGJU KOH: We talked a little bit about some of the justices at the last sessions, particularly Justice Black, Justice Douglas, and Justice Harlan, but I did want to ask a few more questions about them.

Justice Black, you mentioned just now that he gave you copies of the Constitution.

Did you have a warm, personal relationship with him?

JUSTICE BLACKMUN: , I think so.

Of course, I served just a year and had not known him before I came on the Court, but there he was in a profound and vital presence on the Court.

It was interesting to see how he operated.

I would describe him as canny, really, and much of that is due, I think, to his long period of service in the United States Senate.

Being a southerner, the combination of all those factors and being so successful in the political sphere, he knew how to handle himself and was nimble and able.

It was sad to see him deteriorate during October term.

, 1970, as he did, and toward the end of the term, he had failed considerably from his physical presence at the beginning of the term.

HAROLD HONGJU KOH: Did he talk much about his political past?

JUSTICE BLACKMUN: No, not a great deal.

I don't recall his ever having mentioned what the media always does, that is, his initial membership in the Ku Klux Klan.

I don't recall his ever having mentioned that, other than one time where he said that everybody did it in those days, it was just routine.

He seemed to surmount that political negative, if it was a political negative.

He did talk a little bit about his experience in the Senate.

Of course, he voted first after the chief justice.

Sometimes he would pass and let the votes accumulate, and then cast the deciding one, if it was four to four as he anticipated it might be.

I had the feeling that Chief Justice Burger looked at Hugo Black as a precedent for procedure and more than procedure at the time.

I think he highly respected him as a person of experience on the Court, and indeed he was.

HAROLD HONGJU KOH: Chief Justice Burger had been there for one year at the time that you arrived.

JUSTICE BLACKMUN: , One year, yes.

HAROLD HONGJU KOH: Did you sense that Justice Black and Chief Justice Burger were getting along all right?

JUSTICE BLACKMUN: I think so.

Justice Black was never one to hold a grudge or be antagonistic in any respect.

I think he respected everyone's point of view.

But, again, this was the politician in him.

But certainly, because I think Chief Justice Burger looked to him for guidance and leadership, and the like, I think they got along very well, as far as I could tell.

HAROLD HONGJU KOH: Justice Black had well-known rivalries with Justice Frankfurter and Justice Jackson.

Did he ever make mention of these?

JUSTICE BLACKMUN: No, I would say not.

At least not in a caustic manner, ever.

He was the true southern gentleman in many respects.

HAROLD HONGJU KOH: Did you have much one-on-one contact with him?

Would he ever visit you?

JUSTICE BLACKMUN: A little.

They were always pleasant, I think.

I learned a lot from Hugo Black.

HAROLD HONGJU KOH: Another famous friend of F.D.R. who was on the Court was Justice Douglas.

Did either Justice Black or Douglas talk much about F.D.R., or their relations with him?

JUSTICE BLACKMUN: Justice Black did not.

Justice Douglas would mention this relationship on occasion.

Bill Douglas, of course, was independent-minded and independent; spirited, and when he was the leader in a dissent he never bothered about assigning cases.

If he wanted to write, he'd write.

If anybody else wanted to write, why, he'd let them write.

There was that close connection between the president and Justice Douglas.

I suppose that it might be said also that Bill Douglas came within an inch of being president of the United States because I think at the time that Mr. Truman was selected as vice-president, it carne down to the choice between Harry Truman and Bill Douglas.

HAROLD HONGJU KOH: Justice Douglas was famous for going off to Goose Prairie.

Was that disruptive of the work of the Court?

JUSTICE BLACKMUN: Yes, he had this place in the state of Washington.

Always about the.

tenth day of May, sometimes a little earlier, he took delight in announcing,

"Well, my work is done. "

Which, translated, meant that his majorities were out, and he'd go to Goose Prairie.

There was a telephone there, but it was down the road, and one had to walk a way to get to it.

There was no telephone in his cabin out there.

I think he took delight in making it uncomfortable, because it was uncomfortable.

His voice was missing from the conference table.

One never knew what he might say in dissent.

But in fairness to him, his absence never held things up.

He got his writings out in a hurry.

Of course, I always felt that Bill Douglas did his.

dissents long before the majority opinion ever circulated.

He just wrote them, put them in the file, and then when the majority came out, he would circulate them.

They were like two ships passing in the night sometimes.

They didn't connect until the second or third draft.

Douglas, I suppose, in a way, was a prolific writer, but he wrote in a hurry and got things out.

He didn't delay.

HAROLD HONGJU KOH: Did he speak at length in the conference?

JUSTICE BLACKMUN: No, not a great deal.

Black would speak at much greater length.

I remember one time, perhaps I've mentioned it to you before in these interviews, that Douglas sat at the opposite end of the conference table from Chief Justice Burger.

The senior always sat at the opposite end.

The Chief Justice went on at great length describing a certain case and presented his theory about the case, and finally ended up and said,

"And for these reasons, which I regard as entirely valid, I vote to affirm. "

Then he'd say,

"Bill, what do you think? "

And in this particular instance Justice Douglas said only this, he said,

"Chief, for the very excellent reasons that you have spelled forth, I vote to reverse. "

It jarred me a little, but, this was typically Douglas.

He would like to stick a knife in and twist it.

But that was his contribution in that particular case.

HAROLD HONGJU KOH: We've already spoken a little bit about Justice Harlan who was having health problems during the term that you were with him on the Court.

But you did have some fond memories of him that you've mentioned in other places about times you spent in the basement of the Court, watching movies.

Could you tell us more about that?

JUSTICE BLACKMUN: Justice Harlan, of course, was I suppose in a way the New York aristocrat, even though the first Harlan, his grandfather from Kentucky, was almost the opposite of that kind of a person.

He had come up through New York practice, and, of course, struggled on the year that I was there with him, with his badly fading eyesight.

I suppose he was literally blind that year; had a high intensity light, not only on the desk, but also in conference, and with its help was able to do some reading.

But for the most part, he was unable to read, and that made his questioning of counsel during argument particularly valuable and attractive... because he did it without notes, and did it very effectively.

There's a photograph somewhere of Justice Harlan standing up with a small child on the floor in front of him, and the contrast between the mature adult and the youngster is very vivid, but it was a splendid picture of the justice and his approach to the youth of the nation.

I had a happy experience with him, and it was sad to see him fade away at the end of that term.

HAROLD HONGJU KOH: How did he use his law clerks during this period?

JUSTICE BLACKMUN: I don't think I can answer that, Professor Koh, with any assurance.

I'm sure they discussed everything and read things to him, but he must have used them in a manner different from the rest of us.

HAROLD HONGJU KOH: Now in watching the other justices, you've often commented about how you made your own decision to retire.

Were you influenced by the experience you had had watching the decline of these other justices while you were first at the Court?

JUSTICE BLACKMUN: Yes, I have always been worried about physical and particularly mental deterioration when one is on the Court.

Federal judges do not serve for specified terms, they serve, not for life, as so many people think, but as the Constitution says, "during good behavior".

Which means a particular justice can deteriorate, and how do you get rid of him?

Impeachment process is one way, of course, but it's a very undistinguished and difficult way.

On the other hand one can be told that he ought to resign as Oliver Wendell Holmes, Jr., I understand, was told that he should resign at, whatever it was, 93, and to his great credit, he did it like that.

But this has always bothered me.

I wouldn't want to stay in the Court too long, and I suppose one never knows the kind of mental condition he's in.

There are a lot of people who say you're not fit to serve when you're appointed anyway.

And I know how old I was when I finally turned in my suit.

HAROLD HONGJU KOH: But to your knowledge, nobody asked or suggested to Justices Black and Harlan that it was time to step down, nobody from the Court?

JUSTICE BLACKMUN: No.

Neither one.

Because they, until the last days, they were really functioning very, very well, and with great influence.

HAROLD HONGJU KOH: If we could now turn to some of the other justices who were there when you arrived.

The chief justice, Warren Burger, was someone you had known for many years, but this was really the first time you had really worked with him.

What was your impression of how he was doing when you got there?

JUSTICE BLACKMUN: Of course, he'd been there one year, and I was going to say only one year, which is a very short time.

You are correct in saying that while I've know him since we were age four or five, we had never handled any legal matter together.

He practiced in St. Paul.

I was with a Minneapolis firm.

Nor were we on opposite sides of any litigation, strangely enough.

All of a sudden, we were thrown together on the Court.

I sensed immediately what I've already mentioned, that.

he was looking, not improperly, at Hugo Black for guidance, not to Bill Douglas, but to Hugo Black.

I think this was a good move on his part for reasons that have been stated and others that are implied.

Chief Justice Burger did not go in with a sweeping strong hand of changing everything.

He went in and wanted to cause as little disruption as possible.

It isn't easy to come on the Court under those circumstances.

His advent there was really a very successful one in the sense of the soft touch and moving along, knowing that people like Black, and Douglas, and Harlan were there of many years experience, and he was a brand new chief, and he'd better tread softly.

HAROLD HONGJU KOH: Do you think the other justices were wary of your past friendship with the chief?

JUSTICE BLACKMUN: I suppose they were.

Certainly the media was, thinking that I was a clone of the chief justice and would vote together with him at all times, etcetera, etcetera.

And I guess it turned out that during the first term or so, I was with him a good bit of the time, somewhere in the eighty percent.

HAROLD HONGJU KOH: But you never actually spoke to any of the other justices about your relationship, or did they inquire about your relationship?

JUSTICE BLACKMUN: I don't believe so.

I don't recall that that was so.

They must have wondered.

I suppose that Bill Brennan wondered, and some of the others.

HAROLD HONGJU KOH: What was your initial reaction, to Bill Brennan?

JUSTICE BLACKMUN: My reaction was that of the same reaction everyone else has, that here was a very pleasant, outgoing, wonderful, Irish personality, who was pleasant to work with, and who had great influence on the Court.

Earl Warren, of course, let him exert that influence.

Probably a greater influence than one in his then... what'll I'll say... middle position on the Court would ordinarily have resulted.

There are a lot of comments in the media about how he was a consensus builder, etcetera, etcetera.

In my point of view, never was that in the adverse meaning of the term.

He never came down to my chambers and said,

"Harry, you have to vote this way. "

or anything like this.

If he built a consensus, it was through the written word, his facility at language and his leadership, in many respects, of that wing of the Court that supposedly he was a member of.

HAROLD HONGJU KOH: It is sometimes said that Justice Brennan would court the newcomers.

Did you see any sign of this?

JUSTICE BLACKMUN: I had no feeling that I was being wooed by him in any way.

He was always pleasant to me.

I think he was no different to me than he was to anybody else.

I remember in my first circulated opinion, which was not unanimous in its initial vote or as it came out, he did come down to my chambers.

He didn't pound the table or say anything about the opinion.

He merely came in and said,

"You know Harry, it's customary here that one's first opinion is always a unanimous one. "

"The chief justice sees that he gets an opinion in which the Court is agreed all the way across the board. "

"This is not so with your first opinion. "

I think it came out six to three, eventually, and he almost apologized for that, saying he had to write a dissent, and did I mind too much.

Just the typical, nice, pleasant, almost affectionate approach of William J. Brennan, Jr.--

HAROLD HONGJU KOH: But over time you became quite close to Justice Brennan.

Did you have any, personal interactions or socializing outside the Court?

JUSTICE BLACKMUN: --No, I would say not.

I think I may have mentioned before that I was surprised when I came down of how little internal socializing there is in the Court, and I think it's because we see too much of each other during the daytime, but no, no more with Justice Brennan than anyone else.

HAROLD HONGJU KOH: Potter Stewart.

What was your impression of him?

JUSTICE BLACKMUN: Potter, of course, was one I really didn't know as well as I should.

He came out of Ohio, Cincinnati, Ohio; had been elected to a municipal position there and was highly regarded in his home state as a coming politician.

I think Potter worked hard, did very presentable work, but I always had the feeling that he wasn't too sure about the rightness of my being on the Court.

We'll put it that way.

HAROLD HONGJU KOH: It's sometimes reported that he was either considered or offered the chief justice position that was eventually assumed by Warren Burger.

JUSTICE BLACKMUN: There was that rumor at the time, and probably it was more than a rumor.

Maybe he was considered, and in many respects it was a logical thing for the president to consider.

I think certain segments of the media felt that this was coming along.

I remember when the announcement was made of Chief Justice Burger's nomination that some member of the media, and I can't remember who it was, said very audibly, "My Lord, it's Burger".

He had thought, this particular member, that it would go to Justice Stewart, but there it was.

Stewart was on the Court, Burger wasn't, but Burger was on the Court of Appeals, the District of Columbia Circuit.

HAROLD HONGJU KOH: Did you ever see in Justice Stewart any sign of second thoughts or regrets for not having pursued the chief justiceship?

JUSTICE BLACKMUN: No, not in his personal attitudes or remarks at all.

He must have had some inner feelings, I suppose, if one really wants to be chief justice.

I don't know whether that is a job that one should desire, but, of course, it has prestige with it and historical importance, but in some respects, I think it's more enjoyable just being an associate.

HAROLD HONGJU KOH: What is your view about the wisdom of an associate justice being promoted to chief, as opposed to a chief being selected from the outside?

You've seen it happen both ways.

JUSTICE BLACKMUN: Certainly happens both ways.

I suppose one can make an argument in support of each.

I don't know where I come down.

I don't have any positive view one way or another.

It's probably just as well it gets mixed up once in a while.

Surely, the elevation of one on the Court must be satisfying to the individual concerned, he must feel he has a good or preferable interest than somebody from the outside.

HAROLD HONGJU KOH: Justice White, did you know him before?

JUSTICE BLACKMUN: Before I came to the court?

Yes, only because he was circuit justice for the Eighth Circuit and hence would always show up at our annual circuit conferences, give the usual speech, and, I think, enjoyed having the Eighth Circuit.

It seems to me he also had the Tenth, which was his home circuit.

To that extent, those of us out there in the Midwest received him and were glad to have him as circuit justice.

Of course, he was still a football hero, which he did his best to tone down.

He wanted to be known for things other than being an All-American.

HAROLD HONGJU KOH: Did he ever talk about his football days?

JUSTICE BLACKMUN: Yes, he talked a little bit about it and let it be known... at least I had the impression... that he wanted it to be regarded as a closed chapter in his life, as something he had performed and done well, but now he was into law, and that was what he was pursuing, and this is what he wanted to make the most of.

HAROLD HONGJU KOH: During your time on the Court with Justice White, some commentators believed the two of you moved in opposite directions, that you were viewed as having become more liberal and he as becoming more conservative.

Did you see changes in your relationship over the course of the years?

JUSTICE BLACKMUN: I never really felt it.

Nearly always we sat next to each other on the bench, and usually in the conference room.

I think we got along well together.

His dissent, of course, in Roe against Wade and Doe against Bolton is pretty strong, and I think it was stronger than I really realized at the time it came down.

But those are tough words, where he accused the majority of indulging in an exercise of raw judicial power that was unwarranted.

Didn't impress me at the time as being something I should resent, and I didn't.

HAROLD HONGJU KOH: When you would get these tough dissents from him, would he ever talk to you about them as a way of cushioning the blow?

JUSTICE BLACKMUN: No, not necessarily.

Byron White doesn't operate that way.

If there's a blow to it, he strikes a blow, and let the consequences flow as they will.

But he always has that grin, and one never gets mad at Byron White.

HAROLD HONGJU KOH: Thurgood Marshall.

JUSTICE BLACKMUN: Well, Thurgood, of course, was there, and it probably was not easy for Thurgood to come on to the Court, but he certainly deserved it.

I well remember the day his appointment was announced by President Lyndon B. Johnson.

I think, by and large, Justice Marshall was pleased to be on the Court.

I think he felt somewhat burdened at carrying the responsibility that being the first African-American on the Court necessitated.

He was sensitive about things, He talked a good bit about, I would say frequently, about his experiences as a litigator and the problems he had in the South in some of these cases.

Not problems, but very sad experiences, actually, that one wonders how they could have happened in the United States of America.

And he was in the middle of it, and I think, fearless in that respect.

I always was thankful for having Thurgood Marshall on the Court because it brought a point of view that was different and that was missing for many, many decades.

HAROLD HONGJU KOH: Had you ever met him before you came to the Court?

JUSTICE BLACKMUN: I don't recall that I ever had.

HAROLD HONGJU KOH: Did you have many occasions to talk with him outside the conference or outside the Court?

JUSTICE BLACKMUN: I would say probably no.

Although, whenever we had Court dinners, seating is always arranged by protocol and order of seniority, and so the Marshalls and the Blackmuns would always end up next to each other at those dinners.

I felt I got to know Mrs. Marshall and the Justice fairly well in a different atmosphere, socially, at that time.

HAROLD HONGJU KOH: He was noted for his sense of humor.

Did he use this effectively within the conference?

JUSTICE BLACKMUN: He had a great ability when things got a little tense of telling an appropriate story that would break the tension, and sometimes the story had absolutely nothing to do with the problem, wasn't even related to it.

Where he had this great supply of appropriate stories, I do not know.

I never heard him tell the same story twice.

Of course, some of us joked a little bit that he would excoriate his clerks about not getting their work done on time, and then he would sit and spend two hours telling them stories and preventing them from doing the work that he was complaining about not getting out.

I wish I had had his storytelling ability.

A person of great experience with the human animal.

HAROLD HONGJU KOH: When was the first time that you joined everybody in your robes?

Do you remember that moment?

JUSTICE BLACKMUN: The first time I joined everybody in my robe must have been the ninth day of June, 1970, when I came down and was sworn in.

I remember walking into the conference room, and there were these eight black-robed figures standing around with names like Hugo Lafayette Black, and William Orville Douglas, and William James Brennan, Jr., and John Marshall Harlan, and all the rest.

Names that any law student, or any lawyer in those days knew well, knew about.

Made me wonder what I was doing there.

They were very kind at the time, and made me feel welcome.

I don't know whether I was welcome, but they made me feel welcome anyway.

Then we went into the courtroom, and one goes through the formal ceremony of being sworn in.

The candidate always sits over on the end, in the John Marshall chair, one that goes back to John Marshall's day, and then is brought up into the center of the bench.

The chief justice administers the oaths.

If he isn't robed, he's robed at that time, but I remember I was robed.

Then you are led over to the junior chair, which is in the extreme right as you look at the Court, and there you are.

HAROLD HONGJU KOH: Now a lot is said about the tradition of shaking hands when you gather together.

Is this something which is done in a formal way?

JUSTICE BLACKMUN: Of course, that tradition was in force when I joined the Court.

Always, when there's a gathering of justices, whether for a conference, or before going on the bench, everyone shakes every other person's hand.

I'm told it goes back to the days, about a hundred years ago, Chief Justice Fuller, after some ugly incidents right in open court when there were nasty remarks made by one justice about and to another one, and it was rather an unseemly incident, and I think Fuller thought maybe he ought to do something about it.

So he suggested the hand-shaking routine, and it worked pretty well.

I think it is a good way to greet each other and to realize that we're not enemies.

We may disagree, but, as the old saying goes, we should disagree without being disagreeable.

It's routine as far as I'm concerned, a pleasant routine.

HAROLD HONGJU KOH: Why is it that you came to the Court in June, 1970?

Why not wait until after the end of the term?

JUSTICE BLACKMUN: That is what I expected to do and was hoping I could do because I had an accumulation of cases in which to write opinions on the Court of Appeals.

I must have had twelve or thirteen backed up anyway.

But, the chief justice called and... see if I get this straight.

I think right after I was confirmed, but before I took the oath, a couple of U.S. mailbags arrived full of briefs and cert petitions and the like, and I realized that something was amiss.

I wasn't going to be able to do that work and finish up the Court of Appeals work.

But anyway, the chief justice called and said,

"I think it would be advisable for you to come to Washington. "

"Why don't you come down here and be sworn in, and then we can get at the cases that have been backed up pending the arrival of someone to fill the existing vacancy. "

That vacancy had lasted for a year, and I think there were... I know there were a number... at least seventeen cases that had been, what they called "hold for nine", which meant that if four votes were needed to grant certiorari in a case, that there were three to grant.

I think he wanted to clear up that backlog because those cases could go on for argument in October or November and move along.

He said,

"It will take only a week or so. "

"Come on down. "

Well, it turned out he was wrong on that.

I was there about five weeks before I was able to get away.

But that was the reason for my coming down.

HAROLD HONGJU KOH: Did you bring your law clerks with you at that point?

JUSTICE BLACKMUN: You know, I don't remember that.

I can't answer that question.

I probably did not.

HAROLD HONGJU KOH: But the argued cases were over for that term.

JUSTICE BLACKMUN: Yes, indeed, as they are every year, the end of April.

HAROLD HONGJU KOH: So your first court business was in the conference?

JUSTICE BLACKMUN: My first court business.

Well, we sat on the bench, every Monday in those days, opinions were announced, and I remember the announcer always said at the end, Justice Blackmun took no part in the consideration or decision of this case.

This was repeated time after time, and made it sound to me, if not to the media, as though I were there but not doing any work at all.

That, of course, was appropriate because the cases they were announcing were decided by a court of eight, not nine.

Then we cleaned up, tried to anyway, those cases that were up for certiorari and also some other cases that were up on the merits, particularly Boddie against Connecticut.

I well remember the differences that existed at the time.

HAROLD HONGJU KOH: This is the case about the filing fee for divorces.

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: What were some of the differences that were going on?

JUSTICE BLACKMUN: I'll put it this way, a great effort was made to get out a unanimous opinion if possible on it, and that failed.

But I can well recall, I think it was Harlan and Brennan walking out one time, might have been Douglas, arm in arm with the chief instructing them,

"Please go out and settle your difference if you can, and come up with some writing that each of you can join. "

As you know, the Boddie case was not decided that term.

It went over again and was argued in the fall finally.

HAROLD HONGJU KOH: What was it like in the conference room as a junior justice?

JUSTICE BLACKMUN: There are the little unimportant particulars, I suppose.

The junior justice always answers the door when there's a knock.

There's no one in the conference room, other than the nine, and in my day, the seat for the junior justice was a fairly uncomfortable one.

The table is set up so that the chief sits at one end, the senior associate at the other end, three on one side, and four on the other, and I was among the four, but not at the corner, in the middle.

It seemed that that door was always being knocked upon, and I'd have to get up.

It was always a note for Justice Douglas.

I think he had a routine that anything that came in to his chambers had to be sent in to him.

It couldn't wait.

At the end of every conference, he would tear these notes up, and throw them on the floor.

There was always a little pile of paper underneath his seat.

Of course, being a junior, sometimes you're in the middle of expounding your views when you have to get up and answer that door, and your views evaporate and are lost in the confusion.

As you know, the vote is taken by seniority, which means that as junior, one speaks last.

In a sense that makes it easier because you can see, even in a case in which you're troubled, if there are eight votes the other way, well maybe your troubles will have expired by the explanations and comments that the other justices make before you.

On the other hand, if the vote is four to four and it gets down to you then you realize that there's a burden on you and that your vote will determine the fate of that case.

So that there are both pluses and minuses, however one chooses to call them, in being the junior justice.

HAROLD HONGJU KOH: The protocol used to be, or so it was reported, that the justices would speak from senior on down, but then vote in the opposite direction.

JUSTICE BLACKMUN: That's the old tradition.

I suppose it must have been in effect at one time.

It was not during my stay in the Court.

We always voted the other way.

Yet the docket sheets themselves are printed so that the junior is at the top, and the chief justice is the last name in the lineup.

Which means, I'm sure, that at one time people voted by juniority, that is, they discussed by seniority, but voted by juniority.

The theory being that then the seniors wouldn't influence too much the vote of the juniors.

But, as I say, it was never that way during my time on the Court.

HAROLD HONGJU KOH: What is the mode of presentation?

Would the justices give speeches, or was it more informal, or would they speak at length?

JUSTICE BLACKMUN: During my time, and I can't say it still exists today, but the chief justice presides... this will be a Friday conference where we're discussing the cases from Tuesday and Wednesday.

--and the chief will say the first case is v. Smith> ["], and will state the facts.

Chief Justice Burger always stated the facts, sometimes at great length, and then his analysis, and his vote.

All of us regarded our votes then as tentative.

We weren't stuck with that vote if we wanted to change our minds or were influenced Otherwise.

Then he would turn to the senior associate, who was, in those days initially, Black, and a little later Douglas and Brennan.

They would do the same thing, and it would go down by seniority.

And sometimes, entirely appropriate, someone would say,

"Well, for the reasons that Joe or Pete said, my vote is to affirm. "

Without saying anything more than that.

It all depended.

Some of the justices liked to talk at greater length than others, and sometimes the discussions are pretty tedious so that... I must have annoyed one or two... if they were tedious enough, I'd get up and walk back and forth because I couldn't sit there any longer and had to get some relaxation that way.

But eventually we got through the case, the ninth vote was cast, and the chief would usually announce,

"Well, the vote is six to three to affirm. "

If he were in the minority, then he would say to the senior in the majority, "Bill", or

"Hugo, will you assign that case for writing. "

at that time.

HAROLD HONGJU KOH: Would justices ever argue during the conference or would they just let each person speak in turn?

JUSTICE BLACKMUN: The argument was not very vociferous.

Usually, they let each speak in turn.

Once in a while, there were interruptions, but nothing violent or vituperative or with a lot of noise, never.

HAROLD HONGJU KOH: Were justices allowed to pass until everyone had spoken, or did you have to vote in your turn?

JUSTICE BLACKMUN: No.

One could pass if he wanted to.

I remember particularly in the Mitchell case, eighteen year-old voting case, if I have the name right, Justice Black passed.

And then of course, when you pass, one votes at the end, he votes after the juniors have voted.

I think he did that purposefully because it turned out he had the deciding vote, loved it, at that time.

Why does one pass?

I think once in a while, for example, if there's an antitrust case, the views of Justice Stevens are always helpful because of his specialty in antitrust law, and sometimes some of us wanted to hear what he had to say, but if he was junior in the lineup... he spoke after me, for instance... I often passed just to get his views expressed.

HAROLD HONGJU KOH: Did you feel at any point that the passing was done deliberately to disguise someone's vote or so that others wouldn't know them?

I didn't get that impression.

Of course, once in a while, one passes and doesn't vote at that conference.

You say, I'll get my vote in before tomorrow noon, or something like this.

But, deliberate disguising, I didn't get that impression.

How often would you find that you had come in prepared to vote one way, but things that were said were so persuasive that you--

JUSTICE BLACKMUN: --Not very often.

Very seldom actually.

HAROLD HONGJU KOH: --As the junior justice, did you have a good ability to predict how the votes would come out or were you surprised?

JUSTICE BLACKMUN: Pretty well.

Always on the bench when a case is being argued, in order to stay awake often, I'd put a tentative lineup over on the left hand margin as to how the votes were going to go.

Usually you could tell, but not always.

HAROLD HONGJU KOH: Do you remember any time when you were really surprised?

JUSTICE BLACKMUN: Not that I can put my finger on it right now.

Of course, one can get misled by another justice's questioning because oftentimes his questioning is not because he's hostile to a position, but because he wants to find out the answers to his doubts.

Those questions can be a little misleading.

HAROLD HONGJU KOH: Who are some of the justices who you had the most difficulty reading from the questioning on the bench?

JUSTICE BLACKMUN: I don't think I can name any, actually.

Of course, in my day they didn't ask as many questions as they do now.

Right now, they sometimes ask so many questions that counsel never can get his prepared remarks in.

HAROLD HONGJU KOH: Why do you think this is the case?

JUSTICE BLACKMUN: I don't know.

I don't know whether justices want to make themselves aware of things or what it is.

I've noted sometimes where a justice is postured is an influence.

If he's on the side near the press box, he seems to ask more questions than if he's on the side far away from the press box.

HAROLD HONGJU KOH: What would be your objective in asking question?

You were known as one of the quieter justices.

JUSTICE BLACKMUN: I usually asked when I was concerned about certain factual matters.

That's the time to get facts straightened out if you are confused about them, because you have both sides there, and nearly always one had an answer, and that helped.

On legal theory, I didn't ask too many questions because that, theoretically, is what the briefs were for.

HAROLD HONGJU KOH: How did you set up your chambers to use your law clerks compared to the way you had done it in the Eighth Circuit?

JUSTICE BLACKMUN: I didn't do very well at the start.

I could have used my clerks in the early days much better than I did, I think.

When we had the list of cases that were to be argued, unless your recollection is different, I liked to let the clerks decide which cases each one would take.

If one was interested in antitrust and wanted to work on an antitrust case, that was fine with me.

I didn't say,

"Joe you must do the preliminary memorandum in this. "

I did indulge in memos, in what we call preliminary memos, which was an outline of the case, its facts, and the arguments.

Some of the justices did not follow that custom.

It helped me a lot.

HAROLD HONGJU KOH: When did they start the cert pool?

JUSTICE BLACKMUN: I think it was fairly early in my time.

I should remember, but I don't remember, who brought it up initially.

Before the pool was started, each of us was doing every case from scratch.

It occurred to a justice, I am sure, that there was a lot of duplication of work here, and why don't four or five of us form a cert pool and divide thirty cases among the five of us.

That would be six a piece in which to take the laboring oar and do the preliminary work on it rather than do all thirty ourselves.

I think there was concern, I know there was on my part anyway, that this would be unduly influential, in the result of the case, but it didn't turn out that way at all, and I think it was a step ahead, particularly as long as there were some justices not on the cert pool.

That was always the case.

HAROLD HONGJU KOH: Now that you've retired, it seems that everybody is on the cert pool, is that right?

Or, I guess Justice Stevens is still--

JUSTICE BLACKMUN: --As I understand, nearly everybody is.

It was easy to develop that way because I think Chief Justice Burger and maybe Rehnquist, in following him, when a new justice came on said,

"we'll put you on the cert pool. "

and so instead of having five, we had six, and we had seven, and we had eight.

More or less.

HAROLD HONGJU KOH: --I think we are going to change the tape, and when we come back we'll talk a little bit more about the procedures of your chambers, and then on to the cases of OT 1970.

Break