Harry Blackmun Papers: How the Court Handled the Abortion Hot Potato in 1991





Charles Lane, in theWash Post(March 5, 2004):

The reputation of the Supreme Court of the United States depends heavily on the public's belief that it is not only an independent branch of government, but almost a world apart -- where, unlike Congress or the presidency, the law, not politics or personality, holds sway.

Yet, from the inside, that is not exactly how it looked to Harry A. Blackmun.

Rather, by the end of his 23-year-career as an associate justice of the court, the liberal Blackmun was stewing about what he saw as attempts by court conservatives to manipulate the court's docket for political advantage. And he was inclined to see his colleagues' occasionally flip-flopping votes as driven partly by principle, partly by personal concerns.

"I have often suspected that Justice [Sandra Day] O'Connor has been uncomfortable . . . because of the possibility that she might have to become the fifth and deciding vote [on abortion]," Blackmun mused in a 1995 videotaped oral history made available yesterday as part of the Library of Congress's release of the late justice's papers. "She is a believer in states' rights. . . . On the other hand, she is a woman and may fear somewhat any accusation of being a traitor to her sex. Some women's organizations would so conclude."

The existence of a gap between the court's carefully cultivated image and the more complex reality inside its white-columned building on Capitol Hill hardly comes as a shock to lawyers, historians and other close observers of the court. Still, the contrast seems sharper when voiced by a former member of the court itself.

Among the most eagerly awaited information in Blackmun's papers concerns Planned Parenthood v. Casey, the 1992 case in which the court decided by the narrowest of margins, 5 to 4, to uphold the constitutional right to choose abortion that Blackmun himself had first articulated in the 1973 case of Roe v. Wade.

Casey came to the court in the fall of 1991, a supercharged political moment. With a presidential election looming in November 1992, President George H.W. Bush -- eager to shore up his support among conservatives -- was pushing hard for the court to overrule Roe.

For their part, abortion rights advocates had little hope, given that Justice Clarence Thomas, the fifth Republican appointee since 1981, had just joined the court.

The Casey story has been told before, notably in "Closed Chambers," a 1998 book by former Blackmun law clerk Edward Lazarus. But Blackmun's papers add new details to the picture of a court beset by ideological differences, intrigue and personal angst....

...[Blackmun] came to suspect that Chief Justice William H. Rehnquist, a conservative foe of Roe v. Wade, was deliberately delaying the court's consideration of the case so that it would not be heard until after the election.

"The obvious reason" for the chief justice's repeated postponements of a vote on hearing the case, Blackmun wrote, was to avoid "the political repercussions of a decision by this Court in the midst of an election year." Blackmun cited no specific evidence for that claim.

Blackmun threatened to go public with this protest, but it became moot when Rehnquist agreed to a vote. Seven of the nine justices voted to hear the case, according to Blackmun's notes.

Roe survived in Casey because Justice Anthony M. Kennedy, a Reagan appointee, switched his vote and agreed to join two other Republican appointees, O'Connor and David H. Souter, in crafting an opinion that also garnered the support of Blackmun and Justice John Paul Stevens.

Kennedy, O'Connor and Souter initially kept their collaboration a secret, Blackmun recalls.

Chief Justice Rehnquist, blindsided when Kennedy announced his switch after Rehnquist circulated his proposed majority opinion on May 27, took Kennedy on a series of walks to try to talk him out of it.


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