Transcript

HAROLD HONGJU KOH: Mr. Justice, which chambers did you move into when you first came to the Court?

JUSTICE BLACKMUN: I moved into the chambers in the center of the north side of the building, in between the two stairways.

It's smaller than the other chambers, but that's where the junior usually goes for a while.

I was happy there until I moved... until Chief Justice Burger expanded some of the other chambers, and I moved into a new one.

HAROLD HONGJU KOH: How many law clerks did you bring with you from the Eighth Circuit?

JUSTICE BLACKMUN: As I recall, and this is a long time ago, I brought two.

One was Dan Edelman, who is the younger brother of Peter Edelman, and had been with me for one year on the Eighth Circuit.

The other was Mike LaFond, whom I had hired for the ensuing term on the Eighth Circuit.

LaFond and his wife were in Washington at the time and were eager to get back to the Midwest, and I remember calling him and saying,

"Can you stand another year in Washington? "

I don't know how enthusiastic he was, but he did stay on for another year.

Then, as I recall, Robert Gooding came on after we got to Washington.

HAROLD HONGJU KOH: Was he a Douglas clerk at the time?

I guess he was originally designated as a Douglas clerk.

JUSTICE BLACKMUN: Yes, that is correct.

Bill Douglas always had designated clerks.

One was never sure whether they were going to be clerks or not.

Bob Gooding cast a lot with us, and I was very happy to have him.

HAROLD HONGJU KOH: Did you find that the press of work was dramatically higher than at the Eighth Circuit?

JUSTICE BLACKMUN: I thought I was busy on the Eighth Circuit, but the baptism of fire at the time in June, with accumulated things, made me wonder a little bit.

I think October term, 1970, my first term there, was an extraordinarily heavy term.

Of course, I didn't know the difference at the time, whether it was heavy or not, but in retrospect, I think it was one of the most important as far as cases were concerned, and the most significant of all the terms since I was on the Court.

HAROLD HONGJU KOH: Your first opinion as a justice was written in June 29, 1970, so actually for a part of OT 1969.

It's a case called Hoyt v. Minnesota.

This was an obscenity case.

I'm wondering if you have any recollections of that opinion, or of the way the Court was dealing with obscenity at that time?

JUSTICE BLACKMUN: I don't really, and that was a non-argued case, as I recall.

But I have no special recollection of that.

It seems to me that I was in the dissent, and joined by two others.

HAROLD HONGJU KOH: How did the Court deal with these obscenity cases?

Did you actually go and view the films?

JUSTICE BLACKMUN: The Court was struggling with a definition of obscenity, and finally, I think, thought they had solved it when the Miller case came down, but usually when a case came up involving a film, the Court felt that if we were going to pass upon the obscenity issue, we ought to view the film.

And we, of course, the term "we" did not include Black and Douglas because they were absolutists.

They felt the words of the First Amendment,

"that Congress shall make no law. "

meant exactly that.

So they never bothered with going down and looking at the films at all.

The rest of us did.

Nearly all of those films were the same.

They went through chapter by chapter and got, quote, worse, quote, or more extreme anyway.

Each chapter, they were all alike.

They weren't very good films.

They weren't intended to be, that wasn't the measure, it was the obscene part of it.

And, what is obscenity?

When is something obscene?

It's a tough question.

I think it was Potter Stewart, in one of his usual one sentence comments, who said, he couldn't define it, but he knew it when he saw it, which is a pretty good way of looking at it.

HAROLD HONGJU KOH: In your first term, how did you spend the summer between the first five weeks you were down there and then the first term of argued cases that you heard.

Did you go back to Minnesota, or did you stay in Washington?

JUSTICE BLACKMUN: You mean after the term?

HAROLD HONGJU KOH: Yes, after you first arrived.

JUSTICE BLACKMUN: In June, you mean.

HAROLD HONGJU KOH: In June, yes, June of 1970.

JUSTICE BLACKMUN: Yes.

I was down there, it seemed to me, about thirty days, and finally got away.

I was tired of living out of a suitcase, when I'd anticipated being there, as the chief justice had indicated, just a few days.

The thing got a little bit out of control, so I was there for some time.

But I went back.

Then I had the problem of what to do with the accumulated Eighth Circuit opinions.

My colleague Judge Van Oosterhout, very graciously called one day and said,

"Don't worry about them. "

"I see they're piling Supreme Court material on you. "

"I'll take them over, and we'll peel them off one way or another. "

And he did precisely that.

He took them out of my hands.

He took on most of them himself.

The third judge who had sat took on the others, and I was relieved, and much to my gratification didn't have those cases to get out.

It would have been a little embarrassing trying to write them when I had already taken the oath of the Supreme Court.

I don't remember much about that summer except that the chief justice sent out briefs in cases where cert had been granted, and the accumulating petitions for cert. I had plenty to do and tried to do things as best I could.

I didn't know how to do it really, during that summer.

Then of course, Dottie and I had the problem of getting to Washington and finding a place to live, and that complicated things a good bit.

HAROLD HONGJU KOH: Then the term got started.

Do you think that the difficulty of the term was a function of so many cases having been held over?

JUSTICE BLACKMUN: Yes, I think so.

I think that was a distinct factor.

There was one day, I remember, when the four cases were all re-argued cases waiting for the ninth justice.

Justice Harlan came off the bench, in the cloakroom there, and put his arm around Brennan and said,

"Bill, why don't we let Harry go into conference with himself, and the rest of us go back to our chambers and go to work on something else, because. "

he said,

"we know how our votes are, but he's the one that has to make his mind up on these cases. "

That made it dawn on me that the ninth vote was important.

HAROLD HONGJU KOH: Now, your first opinion for the Court was Wyman v. James.

What do you remember about this case?

You've mentioned a little bit about it not being unanimous, but I wonder if you have, any other recollections.

JUSTICE BLACKMUN: Well, I mentioned, I think, about Justice Brennan coming in and apologizing because it wasn't unanimous.

HAROLD HONGJU KOH: Did you have a say in which case you got?

JUSTICE BLACKMUN: No.

We pulled out the assignment papers for that first term.

They're really unhelpful.

All it shows for the first two weeks of argument is that that case was assigned to me.

HAROLD HONGJU KOH: Do you know why you weren't given a unanimous opinion?

JUSTICE BLACKMUN: No.

I was too junior to ask questions at that time.

There it was, and I went to work on it.

It took me a while.

I had trouble with it, and I knew there would be a dissent.

I think we didn't get it down until after the first of the year.

I was slow in getting it circulated.

HAROLD HONGJU KOH: What were the differences you found in working on opinions here as opposed to at the Eighth Circuit?

JUSTICE BLACKMUN: On the Eighth Circuit Court of Appeals, there was comparatively little by way of doctoring opinions.

It was seldom that we would write back to someone and say,

"I'll join the opinion if you'll put the. "

"following paragraph in it. "

There was a little difference, I remember, in terminology.

We used the word, "I concur", on the Eighth Circuit, which meant that I joined the opinion.

That isn't the term of joinder down here.

I remember the first note I got on Wyman against James was from some justice who said, "Please join me".

I didn't know what that meant.

I thought it meant that that was a summons to go down to his office and join him for something, and he wanted to talk about the case, but it was a joinder.

So I had to get used to a little difference in terminology somewhat.

Of course, with nine votes, you wait, and hope for that number five to come in so that you have a majority, and it doesn't always come in or doesn't come in immediately anyway.

With three on the Court of Appeals, one knew pretty well how the votes would fall.

Down here, there's never any hesitancy about making suggestions as to

"I don't like the third sentence on the second paragraph on page fourteen of your opinion. "

"Can you make it read like this. "

and so there's very little of that on the Court of Appeals, but there's a lot of it here.

HAROLD HONGJU KOH: Now, the technology has really changed since you first came to the Court.

Were there Xerox machines at the time?

It's often mentioned that one of the causes of Justice Harlan's eyesight problems was the fact that there were no Xerox machines.

JUSTICE BLACKMUN: We didn't have those at the time.

I remember the struggle that it was for secretaries.

I remember my splendid first secretary there, batting away on seven or eight or nine copies of every opinion.

HAROLD HONGJU KOH: What was her name?

JUSTICE BLACKMUN: Her name was Shirley Bartlett, and she had been the second secretary for Justice Harlan.

When I came down, she, with others, applied for the assignment in my office.

But that fact made one hesitate to make very extensive changes in opinions.

You didn't change "who" to "which" very freely because it meant so much work.

Now it's so easy to do it that one doesn't hesitate at all.

HAROLD HONGJU KOH: When did you start your habit of working in the Justices' Library?

JUSTICE BLACKMUN: As I recall, I did it fairly early.

I liked it for two or three reasons, the main one being that it's a splendid library.

Everything's up there, and what isn't there, I just call upstairs, and it comes down from the third floor.

It's quiet, there's a telephone, but for some reason when I'm up there, the telephone is not so disturbing as it is downstairs.

I think the secretaries would bother me only if a telephone call they felt was important had to be answered right away.

I never really understood why other justices didn't use it.

I was told that Justice Douglas used it a lot, and I used the table where he used to sit.

One time, Justice O'Connor came up for a day or so, and used it.

But, evidently my presence was bothersome, or she didn't find it convenient, and no one, since then, has ever come up.

So I almost had a private library to myself.

It was great.

I liked it.

HAROLD HONGJU KOH: How was your first opinion received?

JUSTICE BLACKMUN: I think the media regarded it as maybe an opinion to be expected of a new guy who is supposedly fairly conservative.

I didn't get much in the way of acute disapproval from the justices.

Justice Harlan wrote a nice note joining it, and one or two others did, as is the custom.

You write and say,

"It's a pleasure to join your first opinion, and it's a good one, and keep up the good work. "

that kind of thing.

Those routine letters came in.

HAROLD HONGJU KOH: Your first unanimous opinion for the Court also came down that term, Graham v. Richardson, which held that states could not deny welfare benefits to legal resident aliens.

This was actually the first of many opinions that you wrote that sided with the aliens, although over time, the Court shifted away from that position, and you were left pretty much alone.

Do you have any recollections of this case?

JUSTICE BLACKMUN: Yes, I do indeed, and I think it was the last case where a court held that heightened scrutiny was to be applied, or something of that kind.

After that, there was never a similar case.

But it sailed along and didn't seem to cause too much trouble.

I don't recall any pulling and hauling on it anyway.

HAROLD HONGJU KOH: This case is actually now a subject of discussion with regard to current issues regarding aliens.

To what do you ascribe your own support for aliens over the years?

JUSTICE BLACKMUN: To begin with, these were aliens that were legally in the country.

They were not illegal aliens.

I suppose, maybe I felt sympathetic toward their plight at times when they were isolated.

After all, they were about to be, it was hoped, citizens of this country.

They'd come over seeking a better life, most of them.

There's nothing particularly in my background that led me to that.

Of course, on my mother's side, her ancestors had come over, and I knew some of them, who were immigrants initially.

Not so on my father's side.

He came out of New England and went back a number of generations.

I can't pin it on anything that would make me particularly sympathetic to aliens as such.

HAROLD HONGJU KOH: Probably the two most famous cases of that first year on the Court, your first full term on the Court, were Swann v. Charlotte-Meckleburg, the Swann case, the school bus case, and New York Times v. the United States, the Pentagon Papers case, what are your recollections about those two decisions?

JUSTICE BLACKMUN: The Swann case of course was important.

I think it was particularly important to Chief Justice Burger.

He wrote it, and in conference discussions was always speaking of the Swann case.

And there were one or two members of the Court who felt that was rightly decided, but that it didn't establish any particular principle.

I'm not in a position to comment on that argument, but I know that the chief justice kept pounding it as, indeed, it did establish a lot of principles, and he cited it many times.

But it was important.

Like many initial cases in a particular area, one can't answer all the problems.

The Pentagon Papers case was, of course, extraordinarily interesting and important.

As I recall, Alexander Bickel argued it on the one side, and Erwin Griswold on the other.

It was excellently argued.

It was one of those cases that one remembers as being excellently argued on both sides.

There are few enough as it is.

It was seemingly rather vital at the time, and there were the papers, we had them in the conference room, more or less sealed.

Were we to look at them?

If we did, it was a pretty casual view.

We looked at them and felt, maybe we shouldn't, and there they were.

HAROLD HONGJU KOH: --There are a huge number of papers.

JUSTICE BLACKMUN: Yes, there were.

HAROLD HONGJU KOH: And the case came up on a very fast track.

Is that right?

JUSTICE BLACKMUN: On a very fast track, and resented because of that fact, in certain quarters it came up too fast.

I can still remember sitting way in the junior seat, and watching Hugo Black, particularly, work on Erwin Griswold.

HAROLD HONGJU KOH: Do you remember anything about Griswold's argument?

JUSTICE BLACKMUN: No.

It was a good argument, and earnestly given.

I think he was convinced of the rightness of it at the time.

I don't think I can say any more than that.

HAROLD HONGJU KOH: He was one of the very few solicitor generals to carry over from a Democratic administration to a Republican administration.

Did you notice any change in the way he argued cases from the Johnson years to the Nixon years?

JUSTICE BLACKMUN: I suppose the answer to that question would vary upon who the answerer was, but I personally did not notice any difference whatsoever.

I think that Erwin Griswold called the shots as he saw them and was an independent solicitor general.

I think he was not at all responsive to the political implications of the president who was in office.

He felt that as S.G., he was representing the government, and he fulfilled what he saw as the responsibilities of that job.

Other S.G.s have not taken that kind of a position.

HAROLD HONGJU KOH: Did you feel that the quality of oral argument was better at the Supreme Court than it had been at the Eighth Circuit?

JUSTICE BLACKMUN: I have said publicly that I was surprised that it was not, actually.

Now, when I say that, I do it taking all the cases together.

There are cases, such as the Pentagon Papers argument, that are outstanding.

But, there are a lot of cases that are really pretty bad, and that the general level of cases at the Court of Appeals was higher than the general level at the Supreme Court.

In a way, this is understandable.

A lawyer who hasn't argued much has a case, and all of a sudden, cert is granted.

And his partners, or other people will say,

"Oh, let me argue this case, I want to do it. "

But he isn't going to give it up.

It's his case, and, I suppose, the lawyers feel that's a great privilege to come down and argue before the Supreme Court.

It isn't going to happen twice for most of them, and so they hold on.

And yet, at the same time it's surprising.

There have been cases where we anticipated the argument would be pretty bad, and it turned out just the other way from some obscure, comparatively unknown lawyer who moves in from Podunk, or some small town.

I remember distinctly one time when a young woman was arguing, and someone, I think it was Justice Stewart, started attacking her position and did so very effectively.

Figuratively speaking, she picked herself up off the floor and went at him hammer and tongs in a way that as we came off the bench, we all said to each other,

"Wasn't she good, wasn't she good? "

That's always a great pleasure to see counsel react that way.

HAROLD HONGJU KOH: Did you feel awkward during the Pentagon Papers case having just been appointed by President Nixon, for his administration to be in there arguing for this position?

JUSTICE BLACKMUN: A little I suppose, yes.

Not very, but a little.

There I was, I had a job to do, and so I thought maybe I ought to do it.

I didn't feel like recusing or anything of that kind.

HAROLD HONGJU KOH: Was this the most visible case of the term, the most highly publicized case?

JUSTICE BLACKMUN: Certainly it was one of them, although the October term, 1970, was a very important term, as I look back on it.

I didn't realize it at the time because I had nothing to compare it with by way of personal experience.

I think it was Hugo Black who said it was the most important term that he sat on.

There were a lot of vigorous and important and determinative cases in OT 1970.

I do recall that at the end of term I never felt more intellectually weary in my life than I did at that time as I went back to the Midwest.

I was glad to get out of town.

Maybe it was in part due to the, not only my first exposure down there, my first term, but to the almost continued importance of case after case after case.

HAROLD HONGJU KOH: Did it wear you down?

Did you find that you had difficulty gearing up, for the next case because they're all so important?

JUSTICE BLACKMUN: No, not in that respect.

You just had to gear up, and move along.

HAROLD HONGJU KOH: Now Justice Black and Justice Harlan, each wrote at the end of the term a very, famous case for which they were remembered.

Justice Black wrote a ease called Younger v. Harris about federal abstention.

Justice Harlan wrote an opinion in a case called Cohen v. California, a famous case in which someone wore a jacket with an obscene anti-war slogan.

Do you have any memories of these cases?

JUSTICE BLACKMUN: Yes, both of them, of course.

The latter case brought us again into the confrontation with the meaning of obscenity and what to do about it, and the impact of the First Amendment on it.

Younger against Harris, was cited in case after case after that time.

Lots going on in OT 1970.

HAROLD HONGJU KOH: In Cohen you dissented, remarking on the immature antics of the person who was wearing the jacket saying, "Fuck the draft".

In the future, you became more generous towards First Amendment concerns.

Do you think you changed in your view?

JUSTICE BLACKMUN: No, I think I'd probably stay with it, although, I'd think twice about it.

I still think it was immature.

But there's a lot of immaturity around, a lot of people don't grow up, and I think that person thought he was pretty smart.

He was actually a smart-aleck.

I think I would stay with it.

I'm regarded as maybe a little more liberal in outlook now than I was then, but I'm not sure that that's true.

HAROLD HONGJU KOH: Several of these cases revolved around the Vietnam War.

Was that a backdrop for the entire term?

Were the protests in the streets about Vietnam affecting the way that the Court was operating, do you think?

JUSTICE BLACKMUN: A number of cases certainly were affected by the presence of the Vietnam War, and it was a difficult time for the nation.

No doubt about it.

I don't believe that the presence of the war actually affected the outcome of any case in the sense that it was decided differently than from what it would have been had the war not been in existence.

But times were difficult, politically and otherwise.

In a sense, I was in the midst of it because I was one of the four Nixon appointees.

HAROLD HONGJU KOH: Did you know people who were fighting in Vietnam?

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: And have you been down to the Vietnam Memorial here in Washington?

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: What are your feelings now about the war?

Robert McNamara has recently gone on record as saying that he thought it was a mistake, although he was a central participant.

JUSTICE BLACKMUN: Yes, and there will be a lot of to-do about that.

Of course, this is only a week or so old now.

I thought that there was a certain amount of unfairness in the political situation.

So many people took the position as Mr. Nixon's War> ["].

Well, that war was going on before he went into office.

Extraordinarily difficult.

A long, long way away, and no one had ever... I don't know my history too well, but I don't believe anyone had ever won a war in that area, certainly the French hadn't in their struggles.

That will go on in our history for a long time, as to whether we should have been in it at all.

Blame will be allocated all over the place.

HAROLD HONGJU KOH: Would the justices ever talk about politics among themselves?

JUSTICE BLACKMUN: Strangely enough, not to my knowledge.

This surprised me a little.

Even after an election, a presidential election.

And I was there, of course, through a few of them.

The day after there might be a comment or two about how it came out.

But never a pre-election comment.

I don't believe it was a studied attempt to stay away from political thought, one just didn't indulge in it.

I was gratified and surprised and pleased about it.

HAROLD HONGJU KOH: You've attended now many State of the Union addresses.

Would the justices ever talk about the content of the remarks afterwards?

JUSTICE BLACKMUN: I think my answer to that is in the negative.

In my experience at least, we always went, or some of us did... I may have missed one or two at the most but I find them extraordinarily interesting.

And there gathered in one place is governmental power.

Mention has been made if a bomb were to drop in that assembly, the State of the Union address, why, the whole government could be wiped out, I guess there is one member of the president's cabinet who is always instructed not to attend.

HAROLD HONGJU KOH: Right.

The secretary of Commerce.

[Laughter]

JUSTICE BLACKMUN: Yes.

It's interesting to watch politics in action there.

When the Democrats will applaud at a certain place, and the Republicans at a certain place, or both of them at another place.

I've always been interested in the political process, and I found those sessions well worth attending.

Of course, I always felt a little foolish.

The Court goes in robes, and sits up in the front row, it's reserved for them, and yet we are told we are not to applaud, and we don't for the most part.

But there are times when one could applaud without being regarded as favoring one side or the other politically, as

"Don't we have a great country. "

or something like this.

You know, you'd like to applaud that way, but we sit there looking very stone-faced.

Behind us will be the Republicans or Democrats, one or the other, hooting and hollering at the appropriate time.

It's great fun.

HAROLD HONGJU KOH: Did the justices vote?

Did you vote in elections after you got to the Court?

JUSTICE BLACKMUN: Always.

Yes.

And yet there are those who didn't.

Justice Harlan went out of his way to tell me that he never voted after he went on the Court.

There was someone else, I've forgotten who it was... perhaps Justice Powell... but I remember his telling me that.

It didn't stop me from voting.

I felt I was a citizen, too, so I voted.

Maybe it's improper, but I don't know why it should be.

HAROLD HONGJU KOH: The summer after your first full term on the Court was the summer in which both Justices Black and Harlan resigned.

What do you remember about that period and their decisions?

JUSTICE BLACKMUN: Their termination of service with the Court came at a very difficult time.

It came in September of 1971, which is within the month of the start of the long conference that we have, when the summer's accumulation of cases is taken up.

So we went into that long conference with just seven voices, not nine.

I know it must have been difficult for the chief justice at the time.

We didn't know who else would come along.

He appointed a committee, of which Potter Stewart was chairman, I was on it, and I've forgotten who the third one was, the duties of which were to select cases to be heard in the October session which we would assume would not be decided four to three.

A four to three decision would carry the day all right, but four was not a majority of nine.

I think the chief, properly, wanted to avoid that.

So we went along and selected cases for October and November arguments, I think.

And we didn't do a very good job actually because there were a number of four to three decisions that came down, and among others, the abortion cases were argued at that time.

HAROLD HONGJU KOH: They were argued to a Court of seven?

JUSTICE BLACKMUN: Argued to a Court of seven.

Which indicated a couple of things.

One was that nobody realized how controversial they were going to prove to be.

Anyway, as I say, we didn't do a good job.

There were a lot of four to three decisions that sailed along on their own weight.

They didn't do any harm anyway, but I'm glad that the abortion cases were reargued, and that was one of the reasons.

HAROLD HONGJU KOH: At which point did you become fairly certain that Justices Black and Harlan would not return for the OT '71?

JUSTICE BLACKMUN: Well, of course, their retirement notices came in.

Black died within a week.

He went very fast, really.

Justice Harlan lingered and died in early January, I think the 5th of January, 1972.

That was not an easy time.

It must have been a very difficult time for the chief justice.

HAROLD HONGJU KOH: Now the first names that were mentioned to replace them were not the names that eventually came forward.

One name mentioned as a possible nominee was a man named Herschel Friday, of Little Rock, Arkansas.

Another was Mildred Lillie, of California.

Then in the end the president settled on Lewis Powell and William Rehnquist.

Do you remember anything about the process of nomination and what you heard about it?

JUSTICE BLACKMUN: Well, this is all speculative in my mind.

I think the president wanted a southerner.

He certainly tried hard enough at the time I was nominated.

And Mr. Nixon indicated at that time that a southerner couldn't be appointed.

He made that flat statement which, the correctness of which, probably was doubted in a number of quarters.

I think that Herschel Friday was a very valid and legitimate name to consider.

I knew Mr. Friday fairly well.

He was out of Little Rock.

He was a partner of the old Mehaffy office, Mehaffy, Smith and Friday, as I recall, a very fine, good office in Little Rock.

Mr. Mehaffy, the head of that office, then was appointed to the Eighth Circuit; he was junior to me, but turned out to be probably my best friend on the Eighth Circuit, largely because I think we felt we came from similar backgrounds of experience.

I, from Minneapolis; he, from Little Rock, but in firms that had practice much the same.

Herschel Friday, after Judge Mehaffy came on the court, became head of that office, and argued a number of cases.

He was a good advocate.

I was always happy to hear him argue, but he was in the unfortunate position of representing, as his office had for years and years, the school boards of Arkansas.

That was not a happy assignment at the time.

HAROLD HONGJU KOH: So you had sat on those cases?

JUSTICE BLACKMUN: Sure.

HAROLD HONGJU KOH: So he had argued before you?

JUSTICE BLACKMUN: Yes, indeed.

I had respect for Herschel Friday and felt that he was a respectable and respected candidate for appointment to our Court.

I mentioned this once to Thurgood Marshall, and he reacted against it.

Now I don't know what his experience had been with Hershel Friday, but it seemed to me that Mr. Friday, when he represented the school boards, did so in a plain, and uncompromising, and entirely fair manner, and took a beating because of it.

HAROLD HONGJU KOH: Did you know Mildred Lillie, the other--

JUSTICE BLACKMUN: I might say Mr. Friday, of course, was killed in an unfortunate airplane accident that took place almost in front of his home.

He was landing on a private strip about two or three years ago and was killed.

The woman that you mention I do not recall.

I don't think I ever knew her.

HAROLD HONGJU KOH: --When the name of Lewis Powell came forward, was he someone you knew?

JUSTICE BLACKMUN: He had a reputation, of course, as a former president of the American Bar Association and as one who had accomplished a lot in his one year of service.

I don't know how anyone can accomplish a lot in one year as president of the ABA, unless he works it up in the years he goes up through the chairs and ultimately becomes president.

But he was highly regarded.

He was the, in a way, the spirit of the Old Dominion, the gentleman aristocrat, in the nice sense of that term, representative of the South, and coming out of Richmond, a thorough gentleman in every way.

HAROLD HONGJU KOH: His biography says he was a reluctant justice and that he had tried not to take the seat on the Court.

Do you know that that's true?

JUSTICE BLACKMUN: Certainly there was rumor to that effect that he had been offered the job earlier and turned it down.

He never told me so, that this was the case, but I suppose the president must have called him over, and how does one say no to the president of the United States when you're asked to go on the Supreme Court?

You don't, I guess.

But I think his appointment must have been a popular one everywhere.

Highly regarded, known by the general bar, and he just fit.

HAROLD HONGJU KOH: And William Rehnquist you had met before.

JUSTICE BLACKMUN: Yes, because, Bill, if I may call him that, at the time was one of my interrogators when I was initially up.

I'd known him in that respect.

He was then assistant attorney general in charge of the office of legal counsel, as I remember.

As an interrogator, he was out in front.

He worked with Johnnie Walters, who was assistant attorney general in charge of taxation, at the time, when they were cross-examining me and interrogating me to see what kind of an animal I was.

But he was obviously representing, in a way, the administration, but he was very gentle and kind and nice as Bill Rehnquist always is.

HAROLD HONGJU KOH: He had a fairly controversial confirmation hearing, although he got through with some discussion about his role as a law clerk in Brown v. the Board.

JUSTICE BLACKMUN: He, himself, when he came on the Supreme Court?

HAROLD HONGJU KOH: Right.

JUSTICE BLACKMUN: Yes, there was a substantial vote against him.

I think, as many as twenty-eight, or something like that.

Bill was never afraid to enter a fight when he had to and carry out his duties.

HAROLD HONGJU KOH: When did the two of them finally come on duty?

JUSTICE BLACKMUN: They came on as 1 remember, I'm guessing at this, but I know I'm within a few days, I think the 7th day of January, 1972.

They came on together, were sworn-in together, and of course, Lewis Powell being the elder, I think the statute says he takes precedence.

So Lewis Powell was never the junior justice, but Bill Rehnquist was.

HAROLD HONGJU KOH: Do you remember any steps you took to welcome the two of them?

Did you have any view about how you ought to be as a welcoming justice, having just arrived yourself?

JUSTICE BLACKMUN: Well, I hope I'm right in this recollection.

It seems to me that, and this isn't very important, but it seems to me that Dottie and I put on a Court dinner for the two of them.

I was the junior until they came on, wasn't I?

I think I was.

I had hoped to establish a little tradition that the junior should give a dinner to honor the new junior that came on.

I remember that dinner party.

The table was set in a square, and the square was filled with plants and things.

It was very nice.

Dottie had set it up extraordinarily well, and the dinner itself was good, and we welcomed the two of them, made them get up and sing for their supper a little bit.

It was a happy evening, I thought.

HAROLD HONGJU KOH: They started right in, in the middle of the term, several months in.

JUSTICE BLACKMUN: Yes, that's right.

HAROLD HONGJU KOH: There are many famous cases from OT 1971, but we'll only talk about one of them before the end of this session, and that's Flood v. Kuhn.

You sometimes called it your favorite case.

Is that so, and if so, why?

JUSTICE BLACKMUN: Well, many times, if I'm giving a speech somewhere, particularly to young people, some youngster will say,

"Is it any fun writing opinions? "

"Have you ever had any fun? "

"And, which case did you enjoy working on most? "

And I always say it's Flood against Kuhn because it was the baseball case, and their eyes light up right away.

They seem to know about the baseball case.

I was always interested in baseball, and it gave me a chance to indulge in a sentimental journey in Part I of the opinion where I tried to cover the history of baseball from the time the New York Knickerbockers played in the Elysian Fields on down to a point some years ago.

I didn't want to get into present years of baseball and try to evaluate players, but I named a lot of them.

I've forgotten how many.

I remember Potter Stewart calling up, and he said,

"I like that history of baseball, but why didn't you name Eppa Rixey? "

And I said with embarrassment, "Didn't I name Eppa Rixey"?

And he said,

"No. "

"And you know what a famous player he was for the Cincinnati Reds. "

"If you will add him, I'll join your opinion. "

Well, the name of Eppa Rixey went into the list right away.

As a matter of fact, I always blame my secretary for having omitted it in copying something.

It's always a conversation piece, the baseball case is.

A lot of people, being baseball fans, want to know why "A" was named and "B" wasn't named.

Then they start reminiscing, and we have a lot of fun.

On the other hand, I've had a lot of criticism about that.

The chief justice, Chief Justice Burger, and Justice White didn't join Part I. I think Chief Justice Burger probably thought that it was beneath the dignity of the Court.

I don't know.

He never told me.

But, I've always been surprised why Byron White didn't join it, but he didn't.

Maybe he thought it was beneath the dignity of the Court too, or else he disagreed with my listing of the famous greats.

I've never asked him; he's never volunteered.

One day maybe I'll ask him.

I'll get some blunt answer that'll hurt my feelings--

HAROLD HONGJU KOH: Another historical oddity of that case was that Justice Arthur Goldberg argued for Curt Flood, and you were occupying his seat now, at least twice removed.

Do you remember anything about that argument?

JUSTICE BLACKMUN: --Yes, I do remember that.

I remember coming on the bench that day just as I remember coming on the bench the first day I ever was there.

The latter situation, Justice Fortas was in the well of the court and caught my eyes as we came in.

I'll never forget that.

The same thing was true in a way when we came in for the baseball case, and Justice Goldberg argued it.

It presented a little bit of a problem for the Court.

How do we address Mr. Justice Goldberg?

Do we call him Mr. Justice, and if we do, is that an act of disfavor to the people in the other side, because it gives him a title.

We can't call him Arthur, although, among ourselves, we're always on a first name basis.

So I think we all ended up, being rather neuter and spoke only of addressing him as counsel, or something like that, which didn't answer anything.

I think it was a difficult argument for him, as it would be, I think for anyone in arguing to a Court of which he had been a member.

He told me afterwards, as I recall he did it orally, that never again would he argue before the Supreme Court.

It was too much of an emotional experience, and he thought maybe it isn't a good thing to do.

After all, an advocate wants to do well, and he knows he's being judged by his former colleagues and so forth and so forth.

I can understand his position.

I think he was troubled during the argument and afterwards.

HAROLD HONGJU KOH: Did you ever meet Curt Flood?

JUSTICE BLACKMUN: No.

I did not.

As far as I know.

I'm sure I saw him play, but I don't recall that I've met him, whereas I've met a number of others, but not him.

HAROLD HONGJU KOH: Although Chief Justice Burger eventually joined your opinion, it's been reported that Potter Stewart actually made the assignment.

Is this correct, or do you recall?

JUSTICE BLACKMUN: No, I don't recall that.

I certainly wouldn't want to say that Potter Stewart made the assignment.

I could look up in my files probably and find out if he did.

If he made the assignment it was because the chief justice was on the fence, and didn't know which side he was on, or else had initially voted the other way.

HAROLD HONGJU KOH: Do you have any sense of why you were chosen to write the opinion?

JUSTICE BLACKMUN: Only because I had probably talked too much baseball during the discussion.

I was glad I caught it.

I never asked for it.

I never asked for any case, but it was fun writing it.

HAROLD HONGJU KOH: Well, we're speaking at a time now where baseball is just coming out of a long strike, and there's a lot of talk of repealing the anti-trust exemption.

Do you think that would be a good idea?

Or do you have any views about how this has all played out?

JUSTICE BLACKMUN: Well, in some respects that case wasn't very important.

I think it wouldn't have made much difference had it gone the other way.

But we felt at the time that saying that baseball was a sport, rather than a business, and hence was not subject to the anti-trust exemption, was the same thing the Court had said twice before, once in an opinion by Oliver Wendell Holmes, Jr., and that rather than overrule those cases, it was up to Congress.

They could act.

Of course, it was perfectly apparent that Congress wasn't going to act if it could help it.

There were too many constituents back home who liked baseball, and I think the Congress just didn't want to do it.

But now, times are a little tougher.

After all, why should baseball be different from football, and hockey, and basketball, all of which are subject to the anti-trust exemption.

Why should it have a special status?

It may be that had the baseball case gone the other way, in the long run, would have been just as well, if not better.

But it wouldn't surprise me if baseball were to lose its anti-trust exemption.

HAROLD HONGJU KOH: A last question before we end this taping.

Is there any name that you should have added to the list that you left out?

JUSTICE BLACKMUN: Oh, a lot of people have suggested names.

I'm content with the list.

I thought I did pretty well as it was, especially after I got Eppa Rixey back in.

HAROLD HONGJU KOH: Okay, thank you very much Mr. Justice.

End of interview