Transcript

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

My name is Harold Hongju Koh.

I'm a professor at Yale Law School and a former law clerk to Justice Blackmun.

This is session number eight on June 2, 1995.

It's being held at the Federal Judicial Center in Washington, D.C. Mr. Justice, at the close of the last session, we had just started to talk about October term 1971, which was your first full term on the court.

We had just discussed probably your most enjoyable case, which was Flood v. Kuhn, the baseball case.

I wanted to ask you about a case that was very difficult for you at that time, Furman v. Georgia, which declared the death penalty unconstitutional.

What was your memory of that case?

JUSTICE BLACKMUN: Well, that was one of the early cases we had concerning the death penalty, of course, and as I remember, I think the vote was five to four.

We didn't get into the death penalty in depth.

I wrote a dissent.

The case was well argued, rather excruciating at the time, and brought one right face to face with the death penalty issue, on which I had felt rather strongly for some years, and, in fact, I think wrote no less than three times when I was on the court of appeals about my distaste for the death penalty, and this didn't help any, but as I remember, it went off largely on a procedural ground.

It seemed to me the main argument was that the statute was vague.

I hope my memory is correct, but I think the Court reversed the lower court, saying it was not vague, and that it could be enforced.

Not an easy case.

HAROLD HONGJU KOH: In that case, the oral argument involved for the state a woman who later argued in the Doe v. Bolton case for the state of Georgia and for the petitioner Anthony Amsterdam, now a professor at NYU.

Do you remember anything about the argument?

JUSTICE BLACKMUN: Yes, I do, generally.

I think the woman to whom you refer is Margie Pitts Hames, I believe.

HAROLD HONGJU KOH: Yes.

JUSTICE BLACKMUN: At least she defended in Doe against Bolton.

Professor Amsterdam was always a very serious, earnest advocate.

There never was any humor in him when he argued, but one knew exactly where he stood.

I always welcomed him and have missed him.

It's been a long time since he's argued in the Court in my last years.

But is this the case where finally we came down to "death is different"?

HAROLD HONGJU KOH: Yes.

JUSTICE BLACKMUN: I don't know why there was some delay in getting to that statement, but he finally made the statement, and I think it was a good one.

Death is different.

Whether he felt it weakened his position or not, I do not know, but I thought it sharpened the analysis of the case, actually.

HAROLD HONGJU KOH: In your dissenting opinion, you said,

"This case subjects me to an excruciating agony of the spirit. "

and then later you said,

"I yield to no one in the depth of my distaste, antipathy, and abhorrence for the death penalty. "

But you still voted to uphold it in that circumstance.

Did your personal feelings about the death penalty change at all over the years, or did it remain the same?

JUSTICE BLACKMUN: No, I think it remained the same.

I guess I was willing at that time to rely somewhat on legislative judgment, and if the states wanted it this way through the expressions of their legislatures, why, they were entitled to have it that way, but finally, of course, in the Callins case a year or so ago, I still felt the same, but looked at it from the point of application of the death penalty and felt it could not be administered and applied in line with the equal protection and due process clauses.

HAROLD HONGJU KOH: Do you think at the time you had more faith in the fair administration of the death penalty?

JUSTICE BLACKMUN: Yes, at least to the extent of letting the states have a try at it.

That was obviously a mistaken position to take, because in later years I was convinced that they couldn't rationally apply it.

HAROLD HONGJU KOH: When Furman v. Georgia was decided, you had probably only heard three or four death penalty cases, but by the time you wrote in Callins, you had voted on hundreds.

Do you think that that experience made a difference?

JUSTICE BLACKMUN: Oh, yes, I'm sure it did.

It is true that we were just in the beginning of the death penalty issue at the time Furman came.

How I would vote on that case today, of course, is an interesting question.

HAROLD HONGJU KOH: Let me ask you about a couple of other things from that term.

This was the term when the "cert pool" began, the system of pooled memos by clerks of various chambers.

How did that get started?

JUSTICE BLACKMUN: Well, of course, this is recollection on my part, but it was obvious, I think, that there was a great deal of duplication of effort, because every case was reviewed by every chamber anew, and as I recall... and this must have been either in the 1971 or '72 terms; anyway, twenty-some years ago... a group of four law clerks, a quartet among which was one of mine, John Rich, came up with the idea that there was a lot of duplicative work here and wouldn't it be better to try to get out pooled memos that would suffice with complete review of each case by each chamber in detail.

From then on, the so-called pool developed, and as I remember, there were five of us on it when it was finally mature enough to put into effect.

Now, I believe, as each new justice has come on the court, the chief automatically puts him in the pool.

I was not disturbed about the arguments against the pool at the start, as long as there were a substantial number of justices who were not on the pool.

If a mistake is made in the pool, it is made for five justices, not just one, and that was always a matter of concern to me.

But I don't know of any disaster that ever developed from it.

HAROLD HONGJU KOH: What procedures did you put in place in your own chambers to protect yourself against mistakes in the pool?

JUSTICE BLACKMUN: I don't recall that particularly, but the clerks always were able enough to sense any error in the pool work, and I don't recall an instance where they felt the pool memo, as it was produced, was egregiously wrong at all.

HAROLD HONGJU KOH: So they annotated the pool memos for you?

JUSTICE BLACKMUN: Yes.

Sure.

HAROLD HONGJU KOH: Were those annotations lengthy?

JUSTICE BLACKMUN: No.

Very brief.

I think we made progress on it, saved a lot of time.

HAROLD HONGJU KOH: Who were some of the justices who were not in the pool, and how did they respond to the pool?

JUSTICE BLACKMUN: Douglas, of course, was one of those who were not on the pool, and he was very much opposed to it, and wrote the chief justice to that effect, I probably have his letter here somewhere.

I hope this comment isn't misunderstood.

He often disagreed with Chief Justice Burger, I felt sometimes just for the sake of disagreeing.

Here in this pile of papers is a letter from Douglas to the chief justice.

"I have your memorandum concerning the pooling of law clerk talent to prepare cert petitions on IFP cases. "

That is, in forma pauperis cases.

"I do not desire to be included in the project for the following reasons. "

and he lists two or three.

Number one, however,

"I like to go over these petitions personally. "

"They are interesting and absorbing and, for me, much more meaningful than when they are reduced to a memorandum written by someone else. "

"Two, with all respect to the strong differing views which you hold, I think the Court is overstaffed and underworked. "

and he referred to a lecture he had given to that effect.

William O. Douglas loved to work on that theme, because Chief Justice Burger felt, and most of us agreed with him, that the Court was pretty busy, and to use that phrase "was understaffed and overworked".

Justice Douglas always took the other position, said it was a job that filled maybe four days of the week, and he could do other things on the remaining day or two that was left in the week.

But anything to disagree with the chief justice.

HAROLD HONGJU KOH: This brings me to another case of that term, Sierra Club v. Morton.

At least initially, it would have seemed that you and Justice Douglas might be strange bedfellows, but in that case you both dissented.

What do you remember much about that case?

JUSTICE BLACKMUN: As I recall, this is the case... and I'd feel a little more comfortable if I looked at those opinions of some twenty years ago, but this is the case where Justice Douglas wrote, in my view, almost at his best.

His thesis was that inanimate objects should be given standing under certain circumstances, and in this case he would give trees standing to present the issues that were involved in the case.

I wasn't entirely ready to go that far, but I was impressed with his writing, but dissented separately, I think, probably in a few lines.

I just wasn't ready to take that rather unusual step that he took and did it so well.

HAROLD HONGJU KOH: Do you think he was surprised that on this point you would be a supporter of his?

JUSTICE BLACKMUN: No, I don't think so.

Now, whether I was a supporter of his is something else.

At least we were on the same side of the case; we were in dissent.

HAROLD HONGJU KOH: Do you remember much about the summer after that first term?

You told the Eighth Circuit that it was even more tiring than your first term had been.

How did you feel about being on the Court at that point?

JUSTICE BLACKMUN: Well, my comment to the Eighth Circuit was a sincere one, and I wasn't the only one that felt that way.

I know in my notes is a comment to the effect near the end of the term that Hugo Black had, at the beginning of the term, prophesied it would be a difficult term, and at the end of the term... am I getting a little out of line here +/?

said it was the roughest term that he had experienced.

There were just a lot of big cases.

I may have mistaken when I say Hugo Black.

Anyway, someone in there fully agreed with me.

I think Hugo had departed by that time.

HAROLD HONGJU KOH: You've now established a kind of a holiday or vacation schedule where you get away from Washington, but the first summer, you mentioned in the last session, you were really in Washington working the whole summer, right after your confirmation.

Do you remember how you spent the time after the first full term on the Court?

JUSTICE BLACKMUN: Well, I got home, as I call it, out to the Midwest after O.T. 1970 and was glad to get out there and get away from Washington and do a little reading and think about some other things and try to keep up with the inevitable flow of cert petitions as they came along.

I never cut those off the way one or two of the justices did, telling their office,

"Don't send them to me. "

"I'll do them in September when I get back. "

I wanted to do them currently, and that was, for me, the only way I could keep up.

But the summer was a welcome time of "relaxation".

I put that in quotations because the pool memos kept coming along, and then I obtained, and wanted to obtain, the briefs for the October cases, try to think about them a little bit.

HAROLD HONGJU KOH: When you returned for October term in 1972, one of your first cases was famous for the dissent.

The case was United States v. Kras, which involved filing fees and bankruptcy, What do you remember about this case?

JUSTICE BLACKMUN: Well, I wrote the opinion in U.S. against Kras.

The government had appealed, or had applied for cert, anyway, from an adverse decision to the effect that a [dollar] 50 filing fee in bankruptcy was improper.

The Court upheld it.

I wrote the opinion.

I probably wrote in language that was too strong.

As I remember, I thought the [dollar] 50 didn't amount to much, particularly for those who smoked.

If they gave up a couple of packs a day, why, they'd have the [dollar] 50 in a hurry.

That was not well received in certain quarters.

Potter Stewart wrote a dissent which he ended up, as I recall, with one of his favorite one-liners,

"Some people are too poor even to go into bankruptcy. "

this kind of thing.

But one interesting development afterwards is that Mr. Kras, who was regarded as such an indigent, paid his [dollar] 50 within six weeks after the opinion came down, so either somebody paid it for him or he had it tucked away somewhere.

HAROLD HONGJU KOH: Another case of that term was Miller v. California, which was an obscenity/pornography case.

How was the Court dealing with these cases during this time?

JUSTICE BLACKMUN: Well, the pornography cases gave us a lot of trouble, and the issue always was whether a certain writing or film was obscene or pornographic, in which case it was assumed it was not entitled to First Amendment protection.

So for the most part, seven of us, anyway, felt that if we were to pass on the pornographic character of a certain film, we ought to take a look at the film.

Justice Brennan and Justice Douglas didn't bother about it, because they took an absolutist view of the First Amendment, that anything went.

So they didn't go to these viewings that we had.

I well remember they were usually shown in some room down on the basement of the Supreme Court Building, where they set a camera up, say, for two o'clock, and I tried to get down there at ten minutes of two, and I could hardly get in the room.

It was full of law clerks and everyone else who wanted to see this questionable film.

But I remember one time Justice Harlan was there, sitting with his law clerk, up front.

Of course, his eyesight was almost totally gone, and it was hard for him to see.

I sat right behind him, and as the film moved on... and they're all alike, because they go through various phases, each one a little more extreme than the preceding one... and he'd lean over and say to his law clerk,

"And what are they doing now? "

And the law clerk would describe it, and Justice Harlan would say,

"You don't say. "

"You don't say. "

Well, it was funny and difficult, but such was the Miller case.

Chief Justice Burger, as I recall, wrote that case and felt that obscenity was carefully defined.

In a separate writing, Potter Stewart said that he didn't know how to define obscenity, but he knew it when he saw it.

Another Potter Stewart one-liner that he was so fond of and which expressed a lot.

When is something obscene?

I don't know.

HAROLD HONGJU KOH: Do you think you adopted some of Potter Stewart's writing style?

JUSTICE BLACKMUN: That I did?

HAROLD HONGJU KOH: Yes, later in your career you were known for some of these one-liners, as well.

"Poor Joshua" and things like that.

JUSTICE BLACKMUN: I never thought of myself as adopting his style.

Poor Joshua?

Poor Joshua.

It wasn't a final line, anyway.

It was the beginning, I think, of a last paragraph.

The beginning of the paragraph, not the end of it.

HAROLD HONGJU KOH: In Miller against California, did that involve a film?

JUSTICE BLACKMUN: I thought it did.

I could be wrong, but I thought it did.

HAROLD HONGJU KOH: What happened with the exhibits in these cases?

JUSTICE BLACKMUN: That was always a question, of course.

We'd call for the exhibits.

If we wanted to see the film, we had to get them.

Then there was one case, I guess maybe it was the Miller case, when some of the exhibits disappeared, much to the great distress of the... well, I assume great distress... of the clerk of our Court, because he was responsible for it, but even to the greater distress of Chief Justice Burger.

But some of these exhibits were pretty juicy stuff.

I have here a letter from an assistant clerk to all the law clerks.

This is dated February 9, 1972.

It reads,

"This office has received a request from the clerk of the Second Circuit for the return of the exhibits in the case of so and so. "

"Our inventory of the exhibits reveals that five magazines, one roll of 8-millimeter film, and one deck of cards are missing. "

"In still another case, the paperback book, 69, is missing. "

"These exhibits were placed in the custody of this office, and it is considerably embarrassing not to be able to return all of them, especially since these are obscenity cases. "

"Anything you can do to aid in the recovery of these missing exhibits will be appreciated. "

Of course, some of them never did show up, and I think the Chief Justice felt that some law clerks of that year tucked them away and wanted to use them personally or for future speeches or something.

HAROLD HONGJU KOH: Mr. Justice, this brings us now to the case for which you'll be remembered forever, which is Roe v. Wade.

Roe began in that term, but didn't conclude until the term after, so I was hoping that we could start talking about the background and then move through the case itself.

When you were at the Mayo Clinic, did you have any contact there with abortion?

JUSTICE BLACKMUN: Very little, as I recall.

The clinic, of course, was not, and did not wish to be, an abortion mill of any kind, and I do not recall the raising of any legal issue about abortion in the decade I was there at all.

All of that developed later with the cases preliminary to Roe against Wade.

HAROLD HONGJU KOH: Do you think that the doctors of the Mayo Clinic had a medical view about the value of abortions?

JUSTICE BLACKMUN: Well, if they did, it was certainly not uniform, and they divided, just as everybody did.

As a matter of fact, some of the nastiest letters I received after Roe against Wade, and there was a great volume of them, were from Mayo Clinic physicians.

Nearly all of them approved of Roe against Wade, but not all of them by any means, They were citizens and ordinary people like everybody else.

HAROLD HONGJU KOH: The first abortion case that you heard on the Court was a case called U.S. v. Vuitch that was argued in January '71, a case involving whether the D.C. statute was vague.

JUSTICE BLACKMUN: Yes, rather a narrow case because it involved just the D.C. statute, and the Court so treated it, and it went off on the vagueness point.

The lower court, as I recall, had said that the statute was unacceptably vague, and the Supreme Court reversed that decision, but apart from that, I don't recall much about the case.

It didn't get into the substantive issue at all.

It was more of a procedural thing.

HAROLD HONGJU KOH: Did you feel at the conference that as someone who had exposure to a medical institution, you were expected to take a lead in terms of announcing your views on these kinds of issues?

JUSTICE BLACKMUN: I didn't feel that way, no, and if I had, I wouldn't have been respected for my feeling, I'm sure.

HAROLD HONGJU KOH: Did the Court know that these other abortion cases were coming up through the circuits?

Was this something that was clearly foreshadowed?

JUSTICE BLACKMUN: The Court knew when we were reduced to a seven-person court, after Justice Black and Justice Harlan both retired in September of 1971, and Justice Black died within a week after retirement and Justice Harlan lingered on 'til January.

But we were aware of that because in that fall, the chief justice was concerned about how we would operate with just seven persons on the Court, and he and all of us were afraid of four-to-three decisions, which would be a majority of those sitting, but four votes would not be a majority of a nine-person court.

The chief justice appointed a screening committee, of which Justice Stewart was the chairman, I was a member, and I think Justice White was the third one.

Our task was to review the list of cases that were ready for argument in October, November, December sessions, and select those that we felt probably would not produce a four-to-three vote.

That meant we had to set some aside.

On that list was Roe against Wade, and we didn't set it aside.

I don't know why we didn't set it aside.

I think probably the implication, the obvious implication, is that we didn't think it was that important at that time.

So Roe against Wade was initially heard by just seven of us.

The result of that screening committee's work, I suppose, was not very good, because there were a number of four-to-three decisions.

Each time the clerk wondered whether we should note them for reargument, with very few exceptions... and Roe against Wade may have been the only exception... we let the case come down four to three as it was.

I recall no great disturbance about it.

HAROLD HONGJU KOH: Do you remember having any sort of feeling that this case was going to be somehow connected to you or it would end up playing the kind of role that it's played in your life?

JUSTICE BLACKMUN: Well, certainly not at the beginning and not at the first argument, particularly.

It ended up... I hope I'm correct in my recollection... it ended up with the Court members, nearly all of them, not being very firm in their conviction.

There were three that were firm.

Justice White and Justice Rehnquist were firm in their feeling about the issue, and Justice Brennan, on the other side, was equally firm.

But the rest of us, particularly the chief justice, Burger at the time, I think wondered about the ultimate decision in the issue and wanted to do a lot more work.

HAROLD HONGJU KOH: The first argument was on December 13, 1971.

JUSTICE BLACKMUN: Just before the holidays, yes.

HAROLD HONGJU KOH: There were two cases, the Texas case, Roe against Wade, and then the Georgia case, Doe against Bolton.

JUSTICE BLACKMUN: Correct.

HAROLD HONGJU KOH: Do you remember much about the arguments?

JUSTICE BLACKMUN: Yes.

There were four oralists, of course, and it took an entire morning.

Of the oralists, three were women.

The sole male was an assistant attorney general of Texas defending the Texas statute, which was Roe against Wade, I guess, and Doe against Bolton was the Georgia statute, much more recent statute.

But the women were Sarah Weddington, who argued in opposition to the Texas statute; and Dorothy Beasley, who was an assistant attorney general for Georgia, who argued in favor of the Georgia statute; and Margie Pitts Hames, who argued in opposition to the Georgia statute.

I felt at the time that the argument the first time around was not particularly helpful.

One thing primarily disturbed me.

I asked Miss Hames, "What about the Hippocratic Oath"?

and her response was, "Well, it's irrelevant".

"Why should it be relevant"?

And I reminded her that the Hippocratic Oath, in most of its translations, anyway, has a provision reciting that "I", the physician taking the oath,

"shall not deliver a pessary to a woman. "

And it seemed to me that was rather pertinent and not irrelevant.

The answer was that the Hippocratic Oath didn't mean a great deal.

But none of the briefs, as I recall, and certainly in none of the four oralists' argument, was mention made of the Hippocratic Oath until I brought it up.

What I got was what I just described; that it was "irrelevant".

As far as I was concerned, it wasn't irrelevant, because having worked at a medical institution, I can remember that in a majority of the examining rooms, the Hippocratic Oath was on the wall on a little plaque.

It is one of the traditions of the medical profession.

And also I had attended a number of medical school graduations where the Hippocratic Oath is administered, as such, to the candidates for the M.D. degree.

So as far as I was concerned, it had not reached the stage of irrelevancy.

HAROLD HONGJU KOH: Did any of the four arguments make a big impact on you?

JUSTICE BLACKMUN: Not the first time, no.

HAROLD HONGJU KOH: It's interesting that Sarah Weddington apparently was counting you as a vote against in the first argument.

Were you undecided, coming into the argument, or do you think you were pretty clear on how you were going to vote?

JUSTICE BLACKMUN: No, I wasn't as firm as Brennan was, for example, and certainly not as firm as White and Rehnquist on the other side, as they proved to be, anyway.

HAROLD HONGJU KOH: Do you remember much about the first conference?

JUSTICE BLACKMUN: I'm confused now.

Rehnquist wasn't on the Court at that point.

HAROLD HONGJU KOH: Right.

JUSTICE BLACKMUN: Who was the other one that was... oh, the chief justice, I think at that time was that way, although he equivocated later.

HAROLD HONGJU KOH: How do you think you came to receive the assignment?

JUSTICE BLACKMUN: Well, that's a long story, I suppose, and I have a little speech that I give at certain places, that I call

"The Anatomy of Roe against Wade. "

which takes it from the beginning to the decision itself, of how it developed.

My comments are largely speculative, but I think they're correct, despite their speculative nature.

After the first vote, the chief justice suggested that I write a memorandum on it, but We all groaned, because Chief Justice Burger had this habit of when the vote was indecisive, somebody had to write a memorandum, but that was as much work as a full-fledged opinion, of course.

But it was assigned to me.

Now, that's evading your question of why it was assigned to me.

Again I'm speculating, but one can go down the list of the justices then sitting.

I think at the conference, after the first argument, the chief justice sensed the sensitiveness of the issue, and I think probably preferred not to assign it to himself, as he could have.

There were personal reasons also, family reasons, I think.

You go to Douglas, Bill Douglas, I think, wanted the case, and I don't think he'd misunderstand this comment on my part.

I think Bill was in the waning years of his service, and was not writing as well as he did in prior years, would have treated the case rather peremptorily.

And furthermore, he was under attack in the House of Representatives by Gerald Ford, largely, and I think it would have exacerbated the situation, as far as he was concerned.

One goes down.

Should Brennan write it?

Brennan at that time was the only Roman Catholic on the Court, and I think it would have resulted in his sustaining a lot of abuse, as indeed he got a lot of it, even though he didn't write it.

HAROLD HONGJU KOH: Do you think he wanted to write it?

JUSTICE BLACKMUN: No, I don't think he did, but I think he was firm in his view.

One can go down the same way with Thurgood Marshall.

He was the only black... African American, as we say now... on the Court at the time.

I think it would have been hard and a little unfair.

One can go all the way down the line.

HAROLD HONGJU KOH: Some have speculated that you asked for the assignment.

Did you?

JUSTICE BLACKMUN: No.

I never asked for an opinion in my life, as I remember, my theory being take the assignments as they come and it will all work out rather evenly, anyway, which I think it does.

HAROLD HONGJU KOH: There have been at least two accounts of this case, one by David Garrow, Liberty and Sexuality, and the other in The Brethren.

Both of them report that Douglas thought that he was going to assign the case and that he also intended to assign the case to you.

Have you ever heard this before, or does this ring true?

JUSTICE BLACKMUN: Say that again, Professor Koh.

HAROLD HONGJU KOH: The accounts say that at the first conference, it was confused as to whether the chief was in the majority.

Douglas, therefore, assumed that he would make the assignment as the senior justice in the majority, but he had decided on his own to assign the case to you.

So you would have gotten the assignment either way.

JUSTICE BLACKMUN: I can't vouch for the veracity of that.

The chief justice was uncertain in his vote, and there's no question about that.

If Douglas took the position that you've just described, it would be natural for him to take that position, I think.

HAROLD HONGJU KOH: Had you gotten good assignments from Douglas when he was the senior justice in the majority and you were on the same side?

JUSTICE BLACKMUN: Well, I certainly can't remember of any disgruntlement with his assignments.

I don't have a positive feeling about whether they were good assignments or bad assignments.

I think Bill Douglas was always fair about it.

He didn't pay too much attention to assigning anyway.

If he wanted to write, he'd write, and if anybody else wanted to write, that was fine with him.

Justice Brennan later, Bill Brennan always immediately made his assignments after a session and peeled them off.

Bill Douglas never did.

He may get on the phone, but never otherwise.

HAROLD HONGJU KOH: From the point at which you were asked to write this initial memo, did you spend a lot of time working on it that first year?

JUSTICE BLACKMUN: Not a great deal of time.

I finally got around to circulating something, and then when I circulated it, right then I moved for reargument, right at the time.

I didn't delay on that motion.

That, of course, in itself provoked a good bit of controversy.

Justice Douglas was very vehemently opposed to reargument.

I think he felt that... well, we had seven persons... that in reargument, the votes might shift, that the chief might give way and go the other way, and would take me along with him and so forth.

It was purely a pragmatic approach on his opposition.

HAROLD HONGJU KOH: Do you think he read your call for reargument as suggesting that you were tentative on your vote?

JUSTICE BLACKMUN: Maybe so.

It's hard for me to put myself in Bill Douglas's head and try to figure out what he was thinking.

HAROLD HONGJU KOH: Did you, in fact, feel open to be persuaded differently at that point, or had you pretty much made up your mind?

JUSTICE BLACKMUN: Well, the memo indicated I had certainly made up my mind, but I wanted to do a lot more work, including the research on the Hippocratic Oath, find out how important that was.

HAROLD HONGJU KOH: Did you have a sense of how you wanted to pursue this research if the case were reargued?

JUSTICE BLACKMUN: Say that again.

HAROLD HONGJU KOH: Did you have a sense of how you were going to go about doing this research if the case were going to be reargued?

JUSTICE BLACKMUN: I was going to do the research whether or not the case, on reargument, would come to me, and however the votes fell.

Of course, the ideal place, in my mind at the time, was to get into Mayo's superb medical library and go to work.

HAROLD HONGJU KOH: So how did you do the research?

JUSTICE BLACKMUN: Well, that summer after the vote was taken and the case was set for reargument, when I went back to the Midwest I spent maybe ten days in Mayo's library.

Some commentators say I spent the whole summer; well, they're wrong, of course.

But I spent ten days there, and no one on the Mayo staff knew what I was doing.

They knew I was there, and they knew I was in the library, but the only two persons that knew what I was working on was an assistant librarian and her assistant.

They knew because of the books I was calling for.

HAROLD HONGJU KOH: What kind of books did you call for?

JUSTICE BLACKMUN: Anything that had to do with the Hippocratic Oath, mainly.

And that's a superb library.

It had everything I wanted.

It's all set out in the Roe against Wade opinion.

HAROLD HONGJU KOH: Who was your clerk during this period?

JUSTICE BLACKMUN: Well, I had more than one, but George Frampton was the clerk, as I recall, who did the major work on Roe against Wade.

Mr. Frampton was the son of a professor of law at the University of Illinois in Champaign.

I think I'm correct in that.

He did a lot of good, solid work on the opinion.

HAROLD HONGJU KOH: This is quite an unusual situation, where you'd be working on an opinion over the summer.

How did you communicate back and forth with George Frampton about what was going to be in the draft and what wasn't?

JUSTICE BLACKMUN: Well, we got on the telephone.

When I'm away in the summertime, I'm on the phone in my office almost daily.

It's a rare day that we're not in communication.

George did a yeoman piece of work in some parts of the opinion, as far as putting sentences together.

HAROLD HONGJU KOH: People who have seen the first draft, the one that you presented in the first term, said that it was based more on questions of vagueness, like the Vuitch case.

But when you returned from the summer, the new draft opinion was much more focused on history and the basis of the right to privacy.

Do you feel that your summer research bolstered your view that you really ought to get to the merits of the right-to-privacy question?

JUSTICE BLACKMUN: I think the summer research was very worthwhile, as far as I was concerned, and gave me a chance to get deeply into the subject.

Of course, it fortified my own views.

I didn't know how the Court would go in reargument, and I certainly didn't know that it would be reassigned to me.

I suppose it was likely to be reassigned to me if I was on the majority side.

HAROLD HONGJU KOH: Did you make any surprising discoveries in the research, things you didn't know?

JUSTICE BLACKMUN: Maybe discovering the monograph written by, I think, a Professor Edelstein, at Johns Hopkins Medical School, which tied directly into the Hippocratic Oath and it persuaded me that it was the product of a certain geographical area and of a certain group of medical specialists in that area.

It fortified me and lessened the significance of the oath as a matter of general medical principle.

HAROLD HONGJU KOH: When you came back for the next term and then the case was reargued, did the reargument add anything to your understanding of the case?

JUSTICE BLACKMUN: Well, I think the reargument was better than the first argument, as it should be, actually.

But again, it was extraordinarily unhelpful as far as the Hippocratic Oath was concerned.

The participants... I hope I'm correct... the same three women argued, but I believe a different member of the attorney general's staff of the state of Texas argued in defending the Texas statute.

The men in each of the arguments were somewhat overwhelmed, I think, by the women who felt so strongly on the issue.

HAROLD HONGJU KOH: In rating the advocates, who was the best?

JUSTICE BLACKMUN: Oh, I don't think I can do that, because... and I hope, again, they won't misunderstand... but in some respects the advocates were not totally helpful, particularly on the Hippocratic Oath issue.

I think if one reads the opinion as finally evolved, it is certainly different from the basic arguments that were made by the advocates.

Sarah Weddington, of course, has made a lot of the argument.

She's written a book on it, as I recall, and has gone about the country, lecturing, as she's entitled to.

Dorothy Beasley was in one of my seminars at Aspen a couple of years later, and a very valued contributor.

I think she looked back on the experience as a great one in her professional career.

Margie Pitts Hames, who is now deceased, I think, I believe was very pleased to be in the Georgia case and actually was working with a much better statute than the Texas statute, which was an ancient one.

The Georgia one was much more modem in its construction.

By and large, I think they did an acceptable job, not a triple-A type, but acceptable.

HAROLD HONGJU KOH: How did you decide which case was going to be the lead case: that Roe v. Wade, the Texas case, would take the front as opposed, to the Georgia case?

JUSTICE BLACKMUN: I'm not certain of what I'm about to say, but I think the Texas statute, which had gone on the books in the latter part of the nineteenth century, I think, was typical of a number of other state statutes and, hence, was more representative of the statutory laws that then existed than was the Georgia statute, which, as I said, was much more modern and up to date in its physical structure.

It was easy to pick Roe against Wade as an example.

I can't separate it particularly from some of the other cases, but I can easily separate it from Doe against Bolton and, hence, that's why we had two opinions.

HAROLD HONGJU KOH: When you came back from the summer research, had you reduced your notes and research into another memo?

How were you using the research at that point?

Had you written it up?

JUSTICE BLACKMUN: I beefed it up, certainly.

I haven't looked in the file about it, but I'm sure I did a completely new draft that would satisfy me, anyway, and if it came my way and I were on the majority, I'd circulate it and see what happened,--

HAROLD HONGJU KOH: Did you talk to your wife about the case?

JUSTICE BLACKMUN: --No.

A lot of people think that because we have three daughters, and Mrs. Blackmun's in the picture, and we even had a female dog at the time, that I was overwhelmed by the feminist approach to all these cases.

But Dottie, Mrs. Blackmun, and I seldom discuss issues.

We might discuss certain arguments, because she's interested in how lawyers conduct themselves, but not on the issues themselves.

HAROLD HONGJU KOH: She didn't lobby you about this case?

JUSTICE BLACKMUN: Not at all.

Very definitely not at all.

HAROLD HONGJU KOH: And your daughters also didn't lobby you?

JUSTICE BLACKMUN: Exactly.

HAROLD HONGJU KOH: When you came back and the reargument was held, then the conference was held with now Justice Rehnquist and Justice Powell sitting in.

Did you have a sense of how they were going to vote?

JUSTICE BLACKMUN: Well, certainly not before the argument, and I don't recall any questions that either of them asked that indicated how they would vote.

Of course, they went in opposite directions, so it didn't make any difference from the original seven to the final nine.

Chief Justice Rehnquist, of course he was just a justice at the time, easily sided with Justice White, and he was adamant in his views from the very beginning and is to this day, I think, and would be one of those who would overrule Roe against Wade in a minute if he could.

HAROLD HONGJU KOH: We have only a little time left on this tape, but I wanted to ask you about Justice Powell.

Justice Powell's recent biography by his clerk, John Jeffries, reports that at this period, Justice Powell was so overwhelmed with being in the Court and the press of the work that he was considering resigning.

Did you see any sign of this strain in him?

JUSTICE BLACKMUN: Well, not any more with him at that time, than with any of the rest of us, particularly in the first year or so, as I recall, Justice Powell's name had been mentioned before, and he had said publicly he would not accept it.

But then it came along and he was named again, and like the good soldier that he is, he accepted the nomination to the Court.

He was a very popular nominee, I think, because he'd been... well, he was a southern aristocrat in appearance, I'm not speaking of wealth, but had headed a fine Richmond law firm, was a splendid gentleman in every sense of the word, and people, I think, were delighted to have Lewis Powell come aboard.

But I think maybe to this day he wasn't overwhelmed with a wild enthusiasm to become a member of the Court.

His experience indicated he knew what the burdens would be.

He'd been president of the American Bar Association and widely known over the country, but I think he would have been content not to go on the Court and rest his life's achievements on matters already accomplished.

But he's been a very valued member of the Court ever since, and a popular one.

HAROLD HONGJU KOH: Why don't we pick up at this point with the start of the next tape.

I want to ask you at the start of the next tape about whether there's any possibility that Justice Powell would have been assigned to write Roe v. Wade.

JUSTICE BLACKMUN: Do you want me to answer that now?

HAROLD HONGJU KOH: Sure.

JUSTICE BLACKMUN: I think the answer, as with Justice Rehnquist, is in the negative, and the reason is that by that time the chief justice and the rest of us knew that we had a bull by the tail.

This was a very emotional, difficult issue, and that it would be unfair to two brand-new justices coming on board, either Powell or Rehnquist, to load that burden on them, and they hadn't had the benefit of the first argument, for what that's worth.

So I think they probably were not considered to be victims by having that case assigned to them.

HAROLD HONGJU KOH: We'll take up at this point in a minute.

JUSTICE BLACKMUN: All right.

Break