Justice Blackmun and “suggestions of midcentury prejudice”

By Dave Andrusko

Supreme Court Justice Harry Blackmun

This will be a brief post. Writing for the Wall Street Journal, Jess Bravin tells us that perhaps alone among Supreme Court justices, Roe v. Wade author Harry Blackmun “made detailed assessments of Supreme Court advocates” who appeared before the Justices.

How can anyone even know this? Referring to notes made about Antonin Scalia, then a Justice Department attorney in his sole appearance before the High Court in 1976, Bravin explains

That sheet is among 15,000 handwritten pages Timothy Johnson, a political scientist at the University of Minnesota, has copied from the papers of former Supreme Court justices for ScotusNotes , an online archive he is building to make original materials from the historically opaque institution available to the public.

This entire enterprise is amusing on so many different levels. Here are two. First, to put it in the absolutely kindest possible way, Justice Blackmun was not held in particularly high esteem by his fellow justices. He was no Justice Scalia, for example. Indeed he was not even a Justice Burger. To consider Blackmun (for the most part harshly) evaluating litigators light years brighter than he was is a bit of a stretch.

Second, the peg for the story is that as a lawyer arguing before the Supreme Court, future justice Ruth Bader Ginsburg received “only so-so marks” from Blackmun. The real story—buried under the fiction of “suggestions of midcentury prejudice”—is that Blackmun marked Ginsburg” with a ‘J,’ for Jewish. ” Scalia? He was “dark.”

To state the obvious, if a justice the media didn’t adore, as it did and does Blackmun, dabbled in such highly negative stereotypes, the reporter would have boiled him in oil.