"That is still my view of how to handle these two sensitive cases, which, I might add, are quite probable candidates for reargument."
Douglas ascribed to Burger the most blatant political motives. Nixon favored restrictive abortion laws. Faced with the possibility that the Court might strike abortion laws down in a presidential-election year, the Chief wanted to stall the opinion, Douglas concluded.
Blackmun was by far the slowest writer on the Court. The year was nearly half over and he had yet to produce a first circulation in a simple business case that had been argued the first week
(Port of Portland
v.
U.S.).
It was the kind of case in which Douglas produced drafts within one week of conference. But in the abortion cases, Douglas had a deeper worry. The Chief was trying to manipulate the outcome.
Blackmun might circulate a draft striking portions of the restrictive abortion laws. But as a judicial craftsman, his work was crude. A poor draft would be likely to scare off Stewart, who was already queasy, and leave only four votes. Or if Blackmun himself were to desert the position— a distinct possibility—precious time would be lost. Either defection would leave only a four-man majority. It would be difficult to argue that such a major decision should be handed down on a 4-to-3 vote. There would be increasing pressure to put the cases over for rehearing with the two new Nixon Justices. This was no doubt exactly the sort of case that Nixon had in mind when he chose Powell and Rehnquist
Blackmun was both pleased and frightened by the assignment. It was a no-win proposition. No matter what he wrote, the opinion would be controversial. Abortion was too emotional, the split in society too great Either way, he would be hated and vilified.
But from Blackmun's point of view, the Chief had had little choice but to select him. Burger could not afford to take on such a controversial case himself, particularly from the minority. Douglas was the Court's mischievous liberal, the rebel, and couldn't be the author. Any abortion opinion Douglas wrote would be widely questioned outside the Court, and his extreme views might split rather than unify the existing majority. Lastly, Blackmun had noticed a deterioration in the quality of Douglas's opinions; they had become increasingly superficial
Brennan was certainly as firm a vote for striking down the state abortion laws as there was on the Court. But Brennan was the Court's only Catholic. As such, Blackmun reasoned, he could not be expected to be willing to take the heat from Catholic anti-abortion groups. Marshall could not be the author for similar reasons: an opinion by the Court's only black could be unfairly perceived as specifically designed for blacks. That left only Stewart Blackmun believed that Stewart would certainly relish the assignment, but he clearly had trouble going very far.
Blackmun was convinced that he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas's assumption that the Chief had some malicious intent in assigning the abortion cases to him. He was
not
a Minnesota Twin.
True, Blackmun had known the Chief since they were small children and had gone to Sunday school together. They had lived four or five blocks apart in the blue-collar Daytons Bluff section of St. Paul. Neither family had much money during the Depression. The two boys had kept in touch until Blackmun went to a technical high school.
Blackmun's seven years at Harvard, however, put the two men worlds apart. Burger had finished local college and night law school in six years and was already practicing law when Blackmun came back to clerk for a judge on the Court of Appeals. Blackmun was best man at Burger's wedding, but the two drifted apart again as they established very different law practices.
Blackmun tried to tell his story every chance he got. His hands in his pockets, jingling change uncomfortably, he would explain how he had practiced in Minneapolis, where large law firms concentrated on serving major American corporations. Burger had practiced in St. Paul, across the river, in the political, wheeler-dealer atmosphere of a state capital.
"A Minneapolis firm," Blackmun would say, "will never practice in St. Paul or vice versa." Left unsaid was the disdain so obvious in the Minneapolis legal community for St. Paul lawyers.
But Blackmun was a hesitant and reserved storyteller, and he was never sure that the others got the message. Douglas, however, should have realized by now that Harry Blackmun was no Warren Burger twin.
Blackmun had long thought Burger an uncontrollable, blustery braggart. Now, once again in close contact with him, he was at once put off and amused by the Chief's exaggerated pomposity,. his callous disregard for the feelings of his colleagues, his self-aggrandizing style. "He's been doing that since he was four," he once told Stewart.
Blackmun was just as aware as Douglas was of the Chief's attempts to use his position to manipulate the Court. Douglas was correct to despise that sort of thing. But this time, Blackmun felt, Douglas was wrong. When he arrived at the Court, Blackmun had assumed the Chief's job as scrivener for the conference. Burger had finally given up trying to keep track of all the votes and positions taken in conference, and had asked Blackmun to keep notes and stay behind to brief the Clerk of the Court. Even then the Chief sometimes misstated the results. Blackmun would deftly field the Chief's hesitations, filling in when he faltered. When Burger misinformed the Clerk of the Court, Blackmun's cough would cue him.
"Do you recall what happened there, Harry?" the Chief would then say. "My notes seem to be a bit sporadic."
Blackmun would fill in the correct information as if Burger had initiated the request.
Part of the problem was that the Chief spread himself too thin. He accepted too many social, speaking and ceremonial engagements, and exhibited too little affection for the monastic, scholarly side of the Court's life. As a result, Burger was often unprepared for orals or conference. Too often, he had to wait and listen in order to figure out which issues were crucial to the outcome. His grasp of the cases came from the summaries, usually a page or less, of the cert memos his clerks prepared. The Chief rarely read the briefs or the record before oral argument.
The problem was compounded by Burger's willingness to change his position in conference, or his unwillingness to commit himself before he had figured out which side had a majority. Then, joining the majority, he could control the assignment. Burger had strained his relationship with everyone at the table to the breaking point. It was as offensive to Blackmun as it was to the others. But one had to understand the Chief. For all his faults, here was a self-made man who had come up the ladder rung by rung. Blackmun did not begrudge him his attempts at leadership.
The abortion assignment really amounted to nothing more than a request that Blackmun take first crack at organizing the issues. It was one of those times when the conference had floundered, when the briefs and oral arguments had been inadequate, when the seemingly decisive issue in the case, jurisdiction, had evaporated. The Court had been left holding the bull by the tail.
Blackmun was not so naive as to think that the Chief had given
him
the abortion cases with the intention of having him find a broad constitutional right to abortion. But he was distressed by Douglas's implicit suggestion that he was unfit for the assignment or was somehow involved in a deception.
Blackmun also knew that he, after all, had a unique appreciation of the problems and strengths of the medical profession. At Mayo, he had watched as Doctors Edward C. Kendall and Philip S. Hench won the Nobel Prize for research in arthritis. He rejoiced with other doctors after their first successful heart-bypass operation, then suffered with them after they lost their next four patients. He sat up late nights with the surgical staff to review hospital deaths in biweekly meetings, and recalled them in detail. He grew to respect what dedicated physicians could accomplish. These had been terribly exciting years for Blackmun. He called them the best ten years of his life.
If a state licensed a physician to practice medicine, it was entrusting him with the right to make medical decisions. State laws restricting abortions interfered with those medical judgments. Physicians were always somewhat unsure about the possible legal ramifications of their judgments. To completely restrict an operation like abortion, normally no more dangerous than minor surgery, or to permit it only with the approval of a hospital committee or the concurrence of other doctors, was a needless infringement of the discretion of the medical profession.
Blackmun would do anything he could to reduce the anxiety of his colleagues except to spurn the assignment. The case was not so much a legal task as an opportunity for the Court to ratify the best possible medical opinion. He would take the first crack at the abortion case. At the least, he could prepare a memo to clarify the issues.
As was his custom, Douglas rushed through a first draft on the cases five days after conference. He decided not to circulate it, but to sit back and wait for Blackmun. He was still bitter toward Burger, whom he had taken to calling "this Chief," reserving "The Chief as an accolade fitting only for retired Chief Justice Earl Warren. But Douglas broke his usual rule against lobbying and paid a visit to Blackmun. Though he would have much preferred that Brennan write the draft, he told Blackmun, "Harry, I would have assigned the opinion to you anyway."
Reassured, Blackmun withdrew to his regular hideaway, the Justices' second-floor library, where he worked through the winter and spring, initially without even a law clerk to help with research.
Brennan too had little choice but to wait for Blackmun's draft. But in the interval, he spotted a case that he felt might help Blackmun develop a constitutional grounding for a right to abortion. Brennan was writing a majority opinion overturning birth-control activist Bill Baird's conviction for distributing birth-control devices without a license
(Eisenstadt
v.
Baird).
He wanted to use the case to extend to individuals the right to privacy that was given to married couples by the
1965
Connecticut birth-control case.
Brennan was aware that he was unlikely to get agreement on such a sweeping extension. He circulated his opinion with a carefully worded paragraph at the end. "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
That case dealt only with contraception—the decision to "beget" a child. He included the reference to the decision to "bear" a child with the abortion case in mind. Brennan hoped the language would help establish a constitutional basis, under the right to privacy, for a woman's right to abortion.
Since the last paragraph was not the basis for the decision, Stewart could join it without renouncing his dissent in the
1965
case. Brennan got Stewart's vote.
But Blackmun was holding back. The Chief was lobbying Blackmun not to join Brennan's draft. Brennan's clerks urged their boss to lobby Blackmun.
Brennan refused. Blackmun reminded him, he said, of former Justice Charles E. Whittaker, who had been paralyzed by indecisiveness. Whittaker's indecision had ended in a nervous breakdown and his resignation. Former Justice Felix Frankfurter had misunderstood Whittaker's indecision and had spent hours lobbying him. Instead of influencing him, Frankfurter had drawn Whittaker's resentment. No, Brennan said, he would not lobby Blackmun.
Blackmun finally decided not to join Brennan's opinion, but simply to concur in the result. That worried Brennan. Without adopting some logic similar to that provided in the contraception case, Blackm
un would have difficulty establi
shing a right to abortion on grounds of privacy.
With the official arrival of Powell and Rehnquist, the Chief scheduled a January conference to discuss which cases should be put over for re
-
argument before the new nine-man Court. Burger suggested that cases with a
4
-to
-3
vote should be reargued. His list included the abortion cases, as well as the Florida adult-bookstore case that had settled the question of federal jurisdiction.
Douglas, Brennan, Marshall and Stewart objected vigorously. The Court had an obligation to dispose of every case it could, Douglas argued, leaving the second half of the term free for important cases they had still to deal with, including the death penalty.
The Chief was equally determined. The
4
-to
-3
cases, particularly those in which two new conservative members might likely change the outcome, should be put over. As always, the majority would determine what cases to put over, but Burger argued that the new Justices should be allowed to vote on whether these cases should be reargued.
That was impossible, Douglas insisted. The new Justices could not vote. Their votes could determine the outcome of the very cases being debated. The internal operating rules, though they were unwritten, must be inviolable.