Transcript

HAROLD HONGJU KOH: Mr. Justice, the Jeffries biography of Justice Powell suggests that the Roe opinion created some emotional distance between you and Justice Powell.

Because you were passionate about Roe v. Wade and he was a supporter, but not as passionate, and that this created some distance between you until 1985.

At that point, Jeffries says that Justice Powell went out to the Mayo Clinic because of an illness.

You helped him to go out, and that sort of healed the wounds between you.

Do you remember this, or does this strike you as... ring true to you?

JUSTICE BLACKMUN: I don't remember any of that aspect at all.

I never thought that there was any strain between Lewis Powell and me.

I haven't read John Jeffries' biography, which everyone acclaims, and he knows more about Lewis Powell's thinking than I do, of course, but this is all news to me.

HAROLD HONGJU KOH: He also recounts that Justice Powell, as a partner at Hunton & Williams, came into contact with a young man whose girlfriend had to have an abortion, and that that person sought Justice Powell's counsel.

And in seeing the torment that this woman went through, this is part of the reason that Justice Powell came to his own views in support of Roe v. Wade.

Did he ever recount this to you?

JUSTICE BLACKMUN: I don't know.

By "he", you mean the justice?

HAROLD HONGJU KOH: Justice Powell.

JUSTICE BLACKMUN: Well, I certainly have it in my memory.

Someone must have spoken to me about it, and I'm sure he must have done it either in a memo or otherwise.

I think that Lewis Powell was deeply disturbed by that incident, and it might well have influenced his vote.

HAROLD HONGJU KOH: Another case that came out in March of 1972 was the Court's decision in Eisenstadt v. Baird, which was written by Justice Brennan, and there was a line in that case which says that the right of privacy certainly encompasses the right to "bear or beget a child".

Now you didn't join that language, but many people thought that this was in some way foreshadowing Roe v. Wade.

Do you remember this decision as having any sort of influence in your thinking?

JUSTICE BLACKMUN: Well, it must have, because it and one other case were the two predecessors of Roe against Wade, and when I talk about the development of Roe against Wade, I always mention the Eisenstadt case.

There it was, and as I recall, it was a great favorite of William O. Douglas at the time, who felt it was a step... a milestone along the way.

HAROLD HONGJU KOH: When you talk about the doctrine of Roe v. Wade... the constitutional doctrine of Roe v. Wade... there are a number of ways you could have gone.

You could have gone on the Ninth Amendment.

You could have gone on equal protection.

You went, instead, on due process and the right to privacy.

Can you explain a little bit about the reasoning that went into this and the other theories that could have been relied upon?

JUSTICE BLACKMUN: Oh, I don't know whether I could give any explanation that would be helpful this long after the fact.

The main thing, of course, was to try to get the Court together, because it was in such a position of equivocacy among most of the justices, and we came up with what it was, with the trimester system.

And it seemed to have an appeal, and that was it.

I put a lot of myself into that opinion, I must admit.

And George Frampton did, also.

HAROLD HONGJU KOH: Did you work on the trimester view while you were at Mayo's?

JUSTICE BLACKMUN: I might, but Mayo's had absolutely nothing to do with it, but I did a lot of writing and thinking out there, so to that extent my answer to your question is in the affirmative.

But I never discussed it at all with any physician.

HAROLD HONGJU KOH: But, for example, the choice of where to draw the line... at conception or at the first trimester or at quickening or viability... how did this line of discussion start to evolve in your mind?

JUSTICE BLACKMUN: Well, by reading... by doing a lot of reading that summer and literally getting into the history of abortion and the attitude of organizations to it.

That attitude, for instance, the American Medical Association was not consistent over the years, and if one goes back far enough, there was, I think, little opposition to abortion as long as it had been before quickening.

Again, all that is set forth in the opinion.

I found it fascinating, and I'm sure it influenced the ultimate conclusion that I drew.

HAROLD HONGJU KOH: Well subsequently, the reliance on substantive due process has attracted a lot of criticism from people like John Hart Ely.

And other people like, including Justice Ruth Bader Ginsburg, have suggested that it should have been done on equal protection grounds.

What's your reaction to that?

JUSTICE BLACKMUN: Well, Professor Ely, of course, could hardly wait.

He got his first critical writing out before the ink was dry, on the opinion, actually, and I think has somewhat regretted it a little bit.

There's no question that it created a stir in the academic community, no question about that.

However it would have been decided, a stir would follow.

As far as Justice Ginsburg's criticism is concerned, it's a valid point of view to take, but it's an easy one to take after twenty, twenty-five years, in that it could not have been decided on the grounds she suggests back in 1972-73.

William O. Douglas was dead set against approaching the case on that ground, and he would have had enough agreement in the Court that five votes to that effect would never have been achieved.

So with all respect to Justice Ginsburg, I just regard her criticism as another proper one as any academic would make of the opinion.

She has a right to make it, but she wasn't on the firing line at that time.

HAROLD HONGJU KOH: So at the second conference, the one which led to your finally being assigned the opinion, did you essentially state the views that were in your memo, based on your research?

JUSTICE BLACKMUN: Views with details such as the trimester kind of thing?

No, because I'm not sure it had developed finally in my own mind.

Much of that came out in the writing and it came rather easily in the writing.

Of course, it's been a matter of controversy, but it's also been a matter with great support from certain quarters.

HAROLD HONGJU KOH: At this point you had a new law clerk working on the case.

JUSTICE BLACKMUN: Yes, I think that Randy Bezanson had moved in with the new quartet, if there were four at that time.

Randy, I should call him Professor Bezanson, he's now... he's been dean at Washington and Lee, and is now going back to Iowa, to rejoin the staff out there.

He moved in and was helpful.

HAROLD HONGJU KOH: And uh, what kinds of, um... when you circulated the opinion, the final draft opinion, did you think you would get five easily?

JUSTICE BLACKMUN: Oh, I don't know what I was thinking at the time.

I knew that William O. Douglas would be on that side.

As a matter of fact, he joined immediately and said he was going to write separately, but then Douglas always wrote separately if he felt strongly about any case, and that didn't disturb me at all.

And uh, White and Rehnquist, being on the other side, I knew one of them would write in due course.

And uh, I think both of them wrote.

White, of course, had the lead dissent and was pretty bitter.

It's a bitter dissent, there is no question about it, where he accused the majority, and particularly me, of the exercise of "raw judicial power".

Those are pretty strong words.

I kid Byron White a little bit and say he's done the same thing in some things he's written since then.

Of course, we all do.

But it was an exciting time.

HAROLD HONGJU KOH: Do you remember any justices asking for changes to join the opinion?

JUSTICE BLACKMUN: Only one.

Potter Stewart asked for the addition of... oh, it seemed to me two or three paragraphs or it might have been just a few sentences.

I think if I had the book in front of me, I could point them out to you.

They're fairly early and have to do with whether a fetus was a person within the meaning of controlling constitutional thought.

I put it in.

I wish I hadn't, in retrospect, but as soon as I put it in, Potter joined the opinion immediately, but it has caused a lot of antagonistic comment, those insertions, and I believe that they didn't add a great deal to the opinion.

We could have gotten along without it.

But then that's the way we develop opinions.

HAROLD HONGJU KOH: And Brennan and Marshall, did they come in pretty quickly?

JUSTICE BLACKMUN: They came in right away.

HAROLD HONGJU KOH: And how about Powell?

JUSTICE BLACKMUN: I can't answer that.

I'd have to look in my file, but I... he wasn't too long, and the Court was there.

The vote we waited for was that of the chief justice.

HAROLD HONGJU KOH: What do you think was going through his mind?

JUSTICE BLACKMUN: Again, pure speculation, but the case was argued the second time in the October session, I think.

HAROLD HONGJU KOH: October 11, 1972.

JUSTICE BLACKMUN: And I got the opinion out... obviously it was easy to get it out, because I'd done so much work on it... sometime in November, and it didn't come down until the 23rd or thereabouts, 22nd, maybe, day of January 1973.

The chief justice was the last vote.

I wondered why he was taking such a long time.

I know of some problems he had personally on this kind of an issue in his family.

And of course, when it did come out, it was fairly short.

It seemed to me not over two pages.

One thing I was always grateful for in the chief justice's opinion was that near the end of it, he said,

"The Court today is not holding for abortion on demand. "

I've always been grateful for that.

I think the majority opinion said that, certainly implied it, but coming from the chief justice in a separate opinion, I think greatly enforced that posture, that aspect of the case.

Now, why did he delay?

Again, pure speculation.

Mr. Nixon had been reelected in 1972, and the chief justice's timing was such that when he circulated his concurrence, the earliest time then that the opinion could come down, it was a Monday following the second inauguration of Mr. Nixon as president.

Now whether that was a factor in the chief justice's delay, I do not know.

I've never spoken with him about it.

And he may have had a good reason for putting this very controversial opinion over until after the inauguration was behind us.

HAROLD HONGJU KOH: Was there some sense that President Nixon would have been embarrassed by a decision written by you and joined by Chief Justice Burger that was upholding the right to choice?

JUSTICE BLACKMUN: Oh, I wouldn't want to say that, but it was so controversial, and when it caught hold of the public's fancy, it certainly occupied the headlines for a while, and the president deserved all his headlines himself.

Again, whether that was in Chief Justice Burger's mind, I don't know.

He'd have to be asked.

HAROLD HONGJU KOH: Did you ever talk to the chief about the abortion question, just one on one?

JUSTICE BLACKMUN: No.

No.

HAROLD HONGJU KOH: And do you think that the opinion in some way drove a wedge between the two of you?

JUSTICE BLACKMUN: Well, I think it probably was a factor in drawing a wedge between the two of us, yes.

HAROLD HONGJU KOH: Although he had assigned it to you.

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: When you announced the opinion, do you remember what that day was like?

JUSTICE BLACKMUN: Well, I don't specifically remember too much about it.

Byron White announced his dissent orally, which was fairly unusual.

We do it once or twice every year.

I don't recall that Justice Rehnquist announced his separate opinion.

It happened to be the day that President Lyndon B. Johnson died, and that, of course, took over the headlines, and maybe properly so.

So Roe against Wade, to the extent that there was any news element in it, to the extent it was newsworthy at all, was rather relegated into the inside pages for about three or four days, and then, of course, it emerged.

I think the, um.

HAROLD HONGJU KOH: Did you have the feeling when you announced the case,

"This is the biggest case I've written since I've been on the Court? "

JUSTICE BLACKMUN: --No, I didn't feel that at all.

I just didn't appreciate it at the time.

Of course, now over the years it's always been with me.

I'll carry it to my grave, for what it's worth, although I think I've written in a lot of other areas of the law.

But I suppose one catches cases like that, and certainly it has emerged as a high point.

Maybe that's the wrong description; certainly it's emerged as a controversial case, as a well-known case during my time.

Ambassador Sol Linowitz, when I was visiting with him one day, said,

"This is the kind of case every justice should have once in his lifetime. "

And I hadn't looked at it in that respect.

Well, the result was, of course, that the mail started to pour in, and I believe it was the greatest outpouring of mail from the public since Brown against Board of Education.

HAROLD HONGJU KOH: Did this begin immediately?

JUSTICE BLACKMUN: It began within the week, anyway, after Mr. Nixon was inaugurated and in office.

Then the newspapers turned to this.

But as I recall, I can see our officers at their respective posts where usually they just stand and watch, buried, each of them, with mail.

They had nine baskets in front of them, and they'd go and put the letters all in those baskets and separate them.

I've retained all of that mail.

I still have it, thinking that some day some Ph.D. candidate would like to get into it and find out why people wrote and why they wrote in groups, pro and con.

I would think it would be an interesting psychological analysis.

HAROLD HONGJU KOH: When did you see the first demonstrators?

JUSTICE BLACKMUN: Well, it seems to me about ten days, a week or ten days after it came down.

I had a commitment for a speech in Iowa City... no, in Cedar Rapids, Iowa... and to my surprise, I had to walk through a picket line to get into the auditorium, wherever the function was.

The first time I was ever picketed, but certainly not the last time.

HAROLD HONGJU KOH: So as you were flying out, you weren't saying to yourself,

"There might be some sort of demonstration about this? "

JUSTICE BLACKMUN: No, I didn't expect it.

No one had warned me about it.

No, I'm usually advised when there's going to be a demonstration or picketing.

On occasion this happens, even to this day.

People like to personalize Roe against Wade as though it's a Blackmun opinion.

Even many professors do that.

You haven't done it, Professor Koh, but some of your colleagues have, and I've called them on it, because it was a seven-to-two decision.

HAROLD HONGJU KOH: How did you feel, reading all this hateful mail and being picketed?

Were you discouraged or angry?

JUSTICE BLACKMUN: I wasn't discouraged, I was, uh... it was an experience I'd never had before, that I, just a shrimp growing up on the East Side of St. Paul, Minnesota, would encounter this national reaction to something that I'd done, be in the midst of such a controversy, and it was something to live through, actually.

And, of course, it continues to this day.

The mail right now has dropped off, but every now and then something will happen and there will be another avalanche of mail.

Even now people feel as strongly about it, and they're not all on one side either.

I've read most of the mail.

There was so much of it at the time that there are several boxes in my storeroom that I never did get to read, but I'm guessing 75,000 to 80,000 letters now have come in, and some of them, of course, are group writings... the third grade in such and such a school, everyone writes.

Some of the most beautiful letters I've ever had, on the other hand, have come from Roman Catholic nursing nuns, despite the fact that the church obviously is very much opposed to Roe against Wade, and rightly so.

HAROLD HONGJU KOH: What would they say, these nuns?

JUSTICE BLACKMUN: They would express gratitude for the decision, that there were practicalities in life, and that these particular people had experienced them.

There was a feminist side to a good bit of it, of course.

It's an experience in human emotion that was educational for me, anyway.

HAROLD HONGJU KOH: Were you ever reduced to tears by reading these letters?

JUSTICE BLACKMUN: Almost.

Almost.

Even to this day, of people who have had the experience of back-alley abortions in the prior days, what it meant to them to look back and know that that wasn't going to happen to their daughters, that kind of thing.

HAROLD HONGJU KOH: Now did you ever meet either Roe or Doe?

JUSTICE BLACKMUN: Not to my knowledge.

Whether they've come up in a line somewhere, I don't know, but otherwise the answer to that is no.

HAROLD HONGJU KOH: One of the shifts that's been charted in your thinking about this issue is the focus on doctors and the need to defer to the discretion of doctors toward more of a focus in the later years on the rights of the women who are involved.

Was that a conscious shift on your part, or how did that come about?

JUSTICE BLACKMUN: I'm not sure it's a shift at all.

I've been accused of making a shift.

Certainly in writing Roe against Wade, I was particularly careful to get the advice of the physician into the picture so that it was not abortion on demand, and that ties into Chief Justice Burger's concurrence and why I was grateful for it.

But I think to this day there ought to be a physician's advice in there.

I don't believe in abortion on demand.

It may be, however, that the issue of Roe itself is receding into the background, particularly since the Casey case came down, and I think there was a time during the Reagan and Bush administrations when the overruling of Roe was a possibility.

The votes were there, I think, in the Supreme Court, and no less than three times, as I recall, did the solicitor generals in the Reagan administration and the Bush administration ask specifically that it be overruled.

There's a very interesting argument made by Charles Fried, professor at Harvard, who is now being seriously considered for the Massachusetts Supreme Judicial Court... maybe he's already been appointed; you would know better than I do... in which he attacked Roe against Wade as being seriously flawed.

It's interesting to read that brief.

But the Court has never gone that far, although, as I say, if it came to a pinch, why, the votes were there, but I like to think now that the great convulsion or convulsive period in Roe against Wade is behind us, and we're on to other things.

HAROLD HONGJU KOH: When you retired at the press conference at the White House, you were asked by a reporter,

"What has Roe v. Wade meant, and why do you think it's been an important decision for our country? "

And you said,

"I think it was right in 1973, I think it was right today. "

"It's a step that had to be taken as we go down the road toward the full emancipation of women. "

Is that the way you felt about it at the time that you were announcing it, that this was a necessary step for the emancipation of women?

JUSTICE BLACKMUN: At the time, I don't think I felt much of anything in that respect, but as the furor developed and its integrity was attacked and upheld, certainly I came to that conclusion, and I feel strongly about it today.

I think it's a step that had to be taken.

I make no apology for Roe against Wade.

As I say, I think it was right in 1973, and I think it is correct today, and I'll stick with my guns on that one.

HAROLD HONGJU KOH: Have you ever thought about what your career on the Court would have been like if you hadn't written Roe v. Wade?

JUSTICE BLACKMUN: Well, I assume it would have been less controversial, or controversial in a different direction, perhaps.

I suppose all of us live in a certain state of controversy for one opinion or another, but as Ambassador Linowitz said,

"Do you want to be just another Supreme Court justice and be there for ten or fifteen years and write a few opinions and be forgotten, or do you want to be remembered? "

HAROLD HONGJU KOH: So in the end, you're happy about the experience... or, it's not an experience that you would take back?

JUSTICE BLACKMUN: Oh, I think that is a correct statement.

I wouldn't want to go through it every day or every year or anything like that, but that experience came along and we had to go through with it, and there it is.

No.

As I said before, I think it was right when it was decided; I think it's right today.

I think maybe there's a little element of contribution to society's welfare in it.

HAROLD HONGJU KOH: How did your family feel about this furor?

JUSTICE BLACKMUN: I don't know.

Of course they've seen the criticism, and they've seen the expressions of the opposite kind.

I think that they share my feeling that it was right.

We've never discussed it at any length.

Our daughters have seen picketing and gone through with it.

Our middle daughter is a lawyer herself.

There's never been a note of criticism on their part expressed to me personally at all.

HAROLD HONGJU KOH: Apart from the language that was added at Justice Stewart's request, is there anything differently you would do in the opinion now if you were crafting it now?

JUSTICE BLACKMUN: Oh, a question of that kind is often asked.

Would you decide cases differently, or this case differently from how it was decided, or would you write it differently?

I suppose I'd write a case today differently from maybe the way I would write the same case back in 1971, somewhat, but by and large, no.

I think I'd craft it about the same way.

It worked, and it seemed to be welcomed among those of us on that side of the case.

As I think I said before, if not I'll say it here, that I put a lot of myself into it, particularly when we came to the trimester deal, with great help from George Frampton and Randall Bezanson.

HAROLD HONGJU KOH: At the beginning of the opinion, right at the beginning, you say,

"We acknowledge our awareness of the sensitive and emotional nature of the controversy of vigorous opposing views even among physicians, of deep and absolute convictions that the subject inspires. "

"One's philosophy, one's experience, one's exposure to the raw edge of human existence are all likely to influence one's thinking. "

This is often cited as another example of your putting a personal touch into your opinion and being willing to show the anguish of decision.

How did you come to the decision to include that passage?

JUSTICE BLACKMUN: Well, my memory is a little faint, but it's the kind of thing that I'd put in an opinion late during the consideration of the case, and my guess is that I put those words in there near the final draft stage, so to speak.

It violated, of course, Justice Black's argument to me, which I think I've mentioned before, when he said,

"Harry, never agonize in public on opinions as to how difficult they are. "

and that's precisely what I did in this case, but I thought of all cases that merited revelation of the anguish of decision, Roe against Wade and Doe against Bolton deserved that treatment.

It was an emotional issue.

It is an emotional issue today.

And all the things that I've mentioned, one's background, one's religious beliefs, one's attitude toward life itself, I suppose, comes to the fore here.

And why not say so?

It wasn't easy.

And no one else on the Court objected to that.

I don't know what Hugo Black would have done, but no one else objected to it.

I'm glad those words are there.

HAROLD HONGJU KOH: Do you think that Roe v. Wade was a liberating experience for you in some way?

JUSTICE BLACKMUN: Maybe so.

Maybe so.

I don't know exactly what you mean by liberating, but for those who think I've changed from an old arch conservative into a flaming liberal, the most flaming liberal on the Court, I suppose I'd say that I've been liberated, but I think it shook me up.

I think it was a worthwhile experience.

In other places, I've spoken of the fact that when one comes to this Court, he has to grow a little... a lot, if he can.

And that here's an opportunity to think about things that he's never thought about before.

And that as he thinks and develops and decides case after case, I would hope that he would be in a position where people can say that he has grown in the law, maybe not in a way that whoever is writing about it would like, but certainly, in a way, if that's a liberating experience, why, I went through it.

HAROLD HONGJU KOH: Do you think it made you feel that you had nothing to lose by expressing yourself as openly and honestly as possible; that in some way you endured as much criticism as you could possibly endure for an opinion?

JUSTICE BLACKMUN: I felt obviously there was nothing much to lose by putting in those agonizing words in the first part of Roe against Wade.

Nobody's ever really criticized me for putting them in.

Other justices joined it, and there we were.

HAROLD HONGJU KOH: How do you think Roe v. Wade changed your thinking about the "little people"?

You had mentioned in your confirmation hearing your concern for the "little people".

But after Roe, there was much more in your jurisprudence.

uh, really sticking up for the underdog.

Do you think that that grew out of Roe?

JUSTICE BLACKMUN: Well, it may have.

I've never really thought about it, but it well may have.

After all, there are a lot of women that desperately need help at a time of crisis in their lives, and certainly Roe against Wade ties right into times of crisis.

HAROLD HONGJU KOH: What was the response from the medical community, your friends at Mayos, about your opinion?

JUSTICE BLACKMUN: Well, I think the medical community, as every other branch, was divided, again depending on their background and religious upbringing and training and that kind of thing.

By and large... and I was interested in this... I think the people in obstetrics and gynecology were heartily in favor of it, and I know this is true at Mayos as it developed.

I've never had, as I recall, any strenuous letter of objection from an OB/GYN specialist.

I don't want to say that as a positive fact, but I think that's correct.

HAROLD HONGJU KOH: How do you think the case affected your relations with some of the other justices?

For example, Justice Brennan or Justice Marshall?

JUSTICE BLACKMUN: It probably surprised them at the start, particularly Justice Brennan, surprised that I could be so liberated, to use your term, at the time.

I'm sure they felt a sense of relief at not having to write it, too.

I think there was that element.

HAROLD HONGJU KOH: Did they ever console you about the mail or the criticisms, the picketing that you were getting?

JUSTICE BLACKMUN: No, because I think they were subjected to similar abuse.

We take it.

One gets it for almost every type of opinion that he writes.

HAROLD HONGJU KOH: Did the case affect your relationship with Justice White?

JUSTICE BLACKMUN: Well, I'd like to say it didn't.

It didn't, as far as I was concerned, toward him.

I was always a little surprised he was so adamant about it, but, again, it may go back into his background and aspects of that that I don't know about.

After all, he grew up in not the easiest of circumstances in the state of Colorado, dug a lot of beets, worked hard physically, distinguished himself on the football fields later, and is a highly respected personification of what is good about athletics in this country.

I just never discussed it with him.

He wrote.

He wrote with forcefulness, obviously feels very strongly about it.

Chief Justice Rehnquist, I think is a little easier to analyze in that respect.

I've never been able exactly to determine why Byron White feels the way he does.

We've never discussed it on a one-to-one basis.

HAROLD HONGJU KOH: In the farewell letter when you left the Court, Chief Justice Rehnquist's letter says something like,

"You will be remembered as the person who wrote Roe v. Wade, but this should not obscure your other accomplishments. "

How do you take this?

JUSTICE BLACKMUN: Well, I was amused by it, because he, as chief justice, wrote that farewell letter, which all the other justices signed.

The chief always seems to write those letters when somebody steps aside, and the rest of us sign them, whether we would have written it that way or not.

But there it was.

I can't escape it.

It's going to follow me around.

At first that bothered me.

It doesn't bother me anymore.

HAROLD HONGJU KOH: When did you think you started to feel more comfortable with it?

JUSTICE BLACKMUN: Oh, when I sat down, thought it through, that this is part of the job here, and one's going to run into controversy.

If he doesn't like controversy, perhaps one shouldn't think about law as a profession.

It's a profession that's dedicated to the resolution of disputes, in contrast to the medical profession, where mostly everybody is engaged in one goal; namely, the cure of the patient or something along that line.

But I guess it was Holmes that said,

"The lawyer's place is in the fray. "

and maybe that's where lawyers belong.

At least that's where they find themselves if they haven't thought much about it, and if they don't like it, maybe an individual who doesn't like it ought to go off in a corner and think long thoughts about the development of the law and so forth, and not engage in practice or become a judge.

HAROLD HONGJU KOH: In the years after, did you ever think that Roe v. Wade would be overruled?

JUSTICE BLACKMUN: Well, yes.

There was a period, as I mentioned a little bit before, today, during certain years of the Reagan and Bush administrations, when they took a flat position asking the Court to overrule it, that I thought it might be overruled.

I still think the votes were there for it on an initial counting.

Now, if it got down really to the hard decision of whether or not to do it, I think the average justice... not all of them, but the average justice... would think long and hard about it.

With the passage of the years and with it now being part of our judicial heritage, at least it's there in 410 U.S. But one could say the same thing about Brown against Board of Education.

That must have been an education for Chief Justice Warren in writing it, These cases come along.

I just happened to catch this one, and there we are.

Of course, to this day whenever there's a little publicity and my name is mentioned, it's always coupled with

"the author of Roe against Wade. "

never

"the author of the dissent in Bowers against Hardwick. "

or some of the other cases I feel equally strong on.

HAROLD HONGJU KOH: Do you feel that your position in Roe v. Wade led you directly to the dissent in Bowers v. Hardwick?

JUSTICE BLACKMUN: Never thought about that one, but maybe they go together.

HAROLD HONGJU KOH: Did you stay on the Court to make sure that Roe v. Wade didn't get overruled?

In thinking about your plans, did you ever say to yourself,

"I can't retire if Roe v. Wade is still in jeopardy? "

JUSTICE BLACKMUN: Well, I'm sure there are those who will accuse me of doing that.

I can count.

I know how old I am.

Maybe I was in kind of a dangerous position.

I didn't want to make a record of longevity as an active jurist.

Holmes has that record, I think.

And I didn't want to stay so long as to have the Court, through the chief justice, tell me its time to step aside, as was done with Justice Holmes.

I saw Hugo Black struggle in his last year.

I didn't want to go through that.

On the other hand, I know how old I am, and people to this day say,

"Why did you retire? "

"Why didn't you stay on? "

and try to be nice and say, "We miss you", or something to that effect.

But I think when one is in his mid-eighties, he'd better be aware of how old he is.

HAROLD HONGJU KOH: In the Casey case, when Justices Souter, Kennedy, and O'Connor wrote the joint opinion which has now, at least for the time being, consolidated Roe's position.

Did that come as a surprise to you?

JUSTICE BLACKMUN: Well, somewhat.

Roe against Wade was having some rough seas, rough going in that era, and then the Casey case came along.

Justice Kennedy came in and talked to me about it,... told me what was happening, and that he was one of the three... which, as far as I was concerned, was a matter of great gratification, and I think the Casey case has done a lot to silence the turmoil and the like.

As I said before, I think we're in a position to carry on and get on to other things now, just as Brown against Board of Education is an accepted fact of life, although I suppose not entirely heeded everywhere.

I think Roe against Wade probably is ready to fade into the background and we can go on to other subjects.

HAROLD HONGJU KOH: Do you think you rose in the stature of your colleagues as a result of this case.

Did they begin to turn to you, to look to you, on this issue?

JUSTICE BLACKMUN: You're going to have to say that again.

Let me be sure I understand your question.

HAROLD HONGJU KOH: Do you think that after this opinion came out, your colleagues concluded you had to be reckoned with on this issue?

JUSTICE BLACKMUN: On this issue, yes, I suppose.

Whether they took me more seriously on other issues, I'm not in a position to comment.

But it's been an experience, no doubt about it.

HAROLD HONGJU KOH: In the balance of the 1972 term... from January 22, when that case was announced, until the end of the term... were you still absorbed with Roe v. Wade or were you on to other things at that point?

JUSTICE BLACKMUN: Oh, pretty much the latter, I think.

That's a long time ago, of course, but there were opinions that had to get out, and more opinions in those days than at the present time, and it was always a battle.

One never wanted to be the last one getting his opinions circulated or holding the Court up toward the annual recess that would come along around the Fourth of July.

I can rightly say I never held the Court up, although there are those who would like to accuse me of such, but the thing to do is to get the opinions out and not to get them out in any old order, as I think one or two of the justices would do just to get them out and then fix them up for the fourth draft.

But it's a hectic time of year.

The Court utterly ruins the beautiful spring months here of May and June, because we have our noses buried in these obscure legal issues, trying to get the stuff out.

The pretty spring months are gone by the time we reach adjournment.

HAROLD HONGJU KOH: Let me ask you about another case that came along in that term, Frontiero v. Richardson, one of the great cases involving gender classifications, sex classifications.

The Court was asked to apply strict scrutiny and came very close to applying it, but did not.

JUSTICE BLACKMUN: Fell one vote short, as I remember.

HAROLD HONGJU KOH: Right.

In time, you became more sympathetic to this view, although at the time you didn't join in the Frontiero opinion, and Roe v. Wade is now very much seen as a gender-equality opinion for the Court.

Do you think this is an area in which your own thinking evolved or moved?

JUSTICE BLACKMUN: Professor Koh, as I remember, I joined Justice White in a separate opinion that was circulating at the time... I hope I'm thinking of the correct case... we were concerned somewhat, at least we made mention of the fact that the Equal Rights Amendment was pending at the time.

Maybe that was a cop-out, but he and I and one or two others felt that maybe that was the answer to this issue.

Well, it turned out that it wasn't, of course.

But the Court has held short of saying something like gender was a suspect classification and was entitled to strict scrutiny.

I think the alienage case was the last time this was said, and it never has gone beyond that.

Maybe it's just as well that it hasn't, but I suppose if this case came up today and with no Equal Rights Amendment in the background, that I probably would come down joining the majority.

That's speculation on my part.

HAROLD HONGJU KOH: Were you a supporter of the Equal Rights Amendment?

JUSTICE BLACKMUN: Well, I don't like tinkering with the Constitution very much, and when you ask if I was a supporter, I would say probably not in the sense that I was out beating the bushes to get votes in favor of it.

Well, I can say, no, I wasn't a supporter, because I think the Court has done very well without the Equal Rights Amendment in upholding women's rights, in bringing the law along independently on gender controversies.

I would fear the stricture that a constitutional amendment would impose on us, "us" being the Court at the time.

I think the Court did well and handled it well and didn't really need an Equal Rights Amendment.

Of course, it sounds wonderful.

HAROLD HONGJU KOH: Let me ask you one final question.

As a result of this opinion in Roe v. Wade, which upheld the privacy rights of other individuals, in some way you lost a lot of your own privacy.

Did you ever find that ironic?

Did that make you value your privacy more?

JUSTICE BLACKMUN: Oh, maybe it's a little ironic.

We certainly lost our privacy, there's no doubt about that.

I always felt somewhat chagrined, as far as our family is concerned, and I didn't know how it would affect our daughters' lives.

I'm sure it has affected their lives somewhat, because they've used, professionally, anyway, their own names rather than their married names, and that immediately ties them into me and Roe against Wade, but it doesn't seem to bother them too much.

Privacy is pretty valuable, and we, as a family, lost it, no doubt about it, but I don't resent that fact.

HAROLD HONGJU KOH: Does that make you feel all the more happy that you wrote an opinion protecting it for others?

JUSTICE BLACKMUN: Yes, I think so.

I'm glad there is that aspect to it, and I hope it stands for the value of privacy as much as it does for the specifics of abortion.

HAROLD HONGJU KOH: Is there a happy side to the whole picture?

Is there ever anything that you remember as sort of a pleasant outcome of this whole experience?

JUSTICE BLACKMUN: Oh, that's a hard one to answer generally.

As I've indicated in prior answer to your question, I think the opinion was right, and there's great reward and satisfaction in that, and maybe some happiness emerges from it.

As I've said publicly many times, it wasn't much fun, it wasn't for me, anyway, being on the Supreme Court of the United States for twenty-four years.

I didn't particularly enjoy the experience.

So many people use that term; it's the wrong term.

But it's been a fantastic experience.

I'm indebted to the nation for the privilege of having had it and had the opportunity to spend twenty-four years at this level.

That doesn't mean there haven't been moments of pain every now and then, and there have been, but by and large, it's been a great privilege, and as I look back on it, I'm grateful to the powers that brought it about.

HAROLD HONGJU KOH: Thanks very much, Mr. Justice.

We'll continue here next time.

End of interview