A fanciful portrayal of Justice Harry Blackmun, author of Roe v. Wade

By Dave Andrusko

Editor’s note. As we approach the 46th anniversary of Roe v. Wade, we are running articles from the past which relate directly [or even indirectly] to the somber realization that over 60 million unborn babies have paid the ultimate price for Justice Blackmun’s jurisprudential flights of imagination. The following ran in 2005, prompted by the publication of a slavishly favorable new book about Justice Blackmun.

“[New York Times Supreme Court reporter Linda] Greenhouse maintains that it was Roe and its reception that forced Blackmun to begin the rest of his life and become Justice Blackmun. Doubtless, conservatives would say that Greenhouse herself played a role in Blackmun’s transformation. They have deplored ‘the Greenhouse effect’ and accused Justices Blackmun and Kennedy of taking positions to curry favor with her and with others in the ‘liberal establishment.’ Certainly, Blackmun was alert to his reputation.” — Laura Kalman, New York Times, reviewing Linda Greenhouse’s new book, “Becoming Justice Harry Blackmun: Harry Blackmun’s Supreme Court Journey.”

“Blackmun’s papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference. …” — William Saletan, Legal Affairs, May–June issue

“How could a right to abortion be established in such a climate? By emphasizing the supervisory role of doctors. That was the headline of the poll found in Blackmun’s files: ‘ABORTION SEEN UP TO WOMAN, DOCTOR.’ It was also the implicit advice of the moderate [Justice Lewis] Powell and the wily [Justice William] Brennan. Powell urged Blackmun to frame abortion as ‘a medical problem broadly defined,’ and Brennan proposed to strike down the Georgia law because it ‘overrides a good faith determination by the attending M.D.’” — William Saletan, Legal Affairs

Supreme Court Justice Harry Blackmun

As the author of Roe v. Wade and a man invincibly convinced of his own rectitude and role as liberator of women, the late Supreme Court Justice Harry Blackmun demanded that you take him seriously. Though a man of mediocre legal talents, he is frequently spoken of in almost reverential terms and treated as if he were already being fitted for induction into the Supreme Court Hall of Fame.

As we have written more than once, few reporters puffed up Blackmun’s already considerable vanity more than the [now former] New York Times’s Pulitzer Prize-winning Supreme Court reporter Linda Greenhouse. Greenhouse has a new book out which was reviewed by the Times. Surprisingly, Prof. Laura Kalman’s review is both an enlightening and entertaining read.

Blackmun saved everything, which makes him an invaluable resource for reporters and scholars. As Kalman writes, “Blackmun, who sat on the court for 24 years, kept everything from hotel receipts to private exchanges between justices in many of the 3,875 cases in which he participated; and he sat for 38 hours of videotaped interviews with his former clerk Harold Hongju Koh, now the dean of Yale Law School. This pack rat then donated his entire collection to the Library of Congress, providing that it be opened five years after his death.”

When it came to buffing their father’s already highly polished image, Blackmun’s daughters were every bit as shrewd as their father had been during his long career on the bench. As the five-year anniversary of Blackmun’s March 1999 death approached, they gave Greenhouse a two-month head start. Out of this research appeared Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey.

It goes without saying—and it mostly isn’t said—that we’re getting a highly skewed, one-sided perspective. For example, Blackmun not only skewered his one-time close friend, Chief Justice Warren Burger, he set a tone that allowed his clerks to treat Burger with utter contempt.

Although I have not completed the book, it’s clear from the excerpt, from the Kalman review, from William Saletan’s fascinating analysis of the same book, and from the many admiring portraits Greenhouse painted of Blackmun’s role in Roe that her book would treat him with great tenderness. Or, to put it another way, she’d produce a puff piece.

By all accounts, Blackmun initially treated protective abortion laws as an infringement on physicians more than a “burden” on a woman’s “right” to abortion. As Kalman correctly describes it, “Blackmun focused more on doctors’ right to perform abortions without fear of prosecution than women’s right to have them.”

It’s hard to determine just how convinced he was that his decision would bring the public to heel. But if peace and quiet were what Blackmun expected following clearly Roe v. Wade [and its companion case Doe v. Bolton], he was in for a rude awakening.

Whatever the explanation—harsh criticism by ordinary citizens, a blistering critique of Roe’s slipshod legal reasoning by a run of “pro-choice” legal scholars, the day-to-day influence of a string of pro-abortion legal clerks—Blackmun gradually embraced Roe to his bosom. Roe was his baby, so to speak, and he defended it with a ferocity that grew more and more extreme.

In every sense, Blackmun was radicalized.

In reviewing Becoming Justice Blackmun, Slate columnist and author William Saletan takes two givens—that early on Blackmun appeared to be a judicial moderate and that the foundation of Roe was built more on support for physician autonomy than for “women’s rights”—as a springboard to speculate that it was the vehement criticism of the rickety Roe decision that explains why Blackmun’s language turned increasingly caustic and apocalyptic.

“Maybe,” Saletan writes, “the conservative assault on Roe, which became a serious threat with [the 1986 case of] Thornburgh and the appointments of Justices Antonin Scalia and Anthony Kennedy, made Blackmun not wiser but angrier.”

An interesting train of thought. In this telling those who challenged Blackmun’s full-throttle, pedal-to-the-metal jurisprudence, which careened from one flimsy justification for abortion to another, were responsible for his bitterness and his all-out militant advocacy.

It’s not his crankiness, nor his enormous ego, nor his penchant for demonizing anyone who disagreed with (what the Wall Street Journal said of another decision) his “legislative diktat in the guise of a legal decision.”

For years Blackmun predicted Roe’s reversal, often more as a tool to rally defenders than as an honest assessment. However, by the time of the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, while it is by no means absolutely clear, it appears that in early discussions there were five justices ready to use the Pennsylvania law to effectively reject Roe. The pivotal justice was Anthony Kennedy.

Whatever the exact sequence (and it varies from account to account), Kennedy switched horses in mid-stream. He let Blackmun know he was on Blackmun’s side.

Edward Lazarus clerked for Blackmun. He once had this to say about Kennedy, which holds even more true for his old boss. Lazarus argues that Kennedy has a “romantic” view of the Court and “the constitutional system over which it presides.”

“The romantic view of the Court holds that it is an institution largely above politics, throwing down moral thunderbolts that reshape American life,” Lazarus writes. “Its decisions do not merely resolve disputes. Far more than this, they uphold shining ideals like justice, fairness, and the rule of law.”

On reflection, this is really scary stuff. When unelected justices have persuaded themselves that they are the functional equivalent of deities on Mt. Olympus—the real guardians and defenders of our liberties—then none of us is safe.

The Constitution? What is that in comparison to the accumulated wisdom of five justices constantly looking over their shoulders to see if Linda Greenhouse approves?

That is precisely why President George W. Bush’s philosophy in choosing judicial nominees is such an anathema to pro-abortionists and their ilk, why they reflexively filibuster brilliant conservative jurists. If judges actually have to pay attention to the text and the history of Constitution, making it far more difficult to make policy decisions under the guise of deciding cases, then eventually the Abortion Establishment would have to engage the American public in an honest dialogue.

They would need to persuade the citizenry that abortion ought to be legal on demand, not have it imposed from on high by a small cadre of out-of-touch justices.

Small wonder they obfuscate, distort, and filibuster President Bush’s nominees to the courts of appeal.