Rehnquist pointed out that in
1868,
when the Fourteenth Amendment was adopted, at least thirty-six states or territories had laws on the books limiting abortions. It did not appear that the framers of the Fourteenth Amendment intended to bar the states from regulating abortions.
By early December, Blackmun's final draft had circulated. Stewart's and Douglas's concurrences were finished, and White's and Rehnquist's dissents were ready. There was still nothing from Burger.
White was particularly unhappy with the progress of the term. Dozens of cases were ready to come down except, more often than not, for the Chief's vote. He wrote a memo pointing out the bottleneck.
By early January, there was still nothing from the Chief. Blackmun grew increasingly nervous. He was worried about his reputation for being chronically late. He had not yet brought down an opinion for the term. Abortion was ready; he wanted it to come down at once. Blackmun and the others in the majority finally began pointing toward a Monday, January
15,
announcement of the abortion decisions. Still there was nothing from Burger.
On January
12
at conference, Stewart put it to the Chief directly. "Vote now or let the decision come down with only eight votes," Stewart suggested.
To the majority's surprise, Burger said that he had decided to join the Blackmun opinion but, like some of the others, he wanted to add his own concurring remarks. "I'll get it to you next week," he promised.
Stewart and Brennan thought he was stalling. The Chief was scheduled to swear in Richard Nixon for his second term as President on January
20.
It would undoubtedly be embarrassing for Burger to stand there, swearing in the man who had appointed him, having just supported a sweeping and politically volatile opinion that repudiated that man's views.
At the Friday, January
19,
conference, the Chief said that his schedule had been busy, and he still had not gotten to the abortion decision. Stewart figured that, having manipulated a delay until after the Inaugural, Burger would acquiesce. The others wanted a Monday, January
22,
announcement, three days later, and Burger said that he would have something.
Over the weekend, he wrote a three-paragraph concurrence. Ignoring the sweep of the opinion he was joining, Burger said that one law (Texas) was being struck because it did not permit abortions in instances of rape or incest, and he implied that the other law was being struck because of the "complex" steps that required hospital board certification of an abortion. He did not believe that the opinion would have the "consequences" predicted by dissenters White and Rehnquist, and he was sure that states could still control abortions. "Plainly," he concluded, "the Court today rejects any claim that the Constitution requires abortion on demand."
The day of the scheduled abortion decision the Chief sat in his chambers reading the latest edition of
Time
magazine. "Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land," an article said. The abortion decision had been leaked.
Burger drafted an "Eyes Only" letter to the other Justices. He wanted each Justice to question his law clerks. The responsible person must be found and fired. Burger intended to call in the F.B.I, to administer lie-detector tests if necessary.
Dutifully, Rehnquist brought up the matter with his clerks. It was harmless in this case, he said. But in a business case, a leak could affect the stock market and allow someone to make millions of dollars. None of Rehnquist's clerks knew anything about the leak, but they asked him if it were true that the Chief was thinking of lie-detector tests. "It is still up in the air," Rehnquist said. "But yes, the Chief is insisting."
Rehnquist's clerks were concerned. Such a witch-hunt would be met with resistance. Certainly, some clerks would refuse to take such a test and would probably have to resign. The Chief is mercurial, Rehnquist explained. "The rest of us will prevail on him."
Brennan summoned his clerks and read them the Chiefs letter. It was another example, he said, of the Chief usurping the authority each Justice had over his own clerks. "No one will question my law clerks but me," Brennan said. Then in a softer voice, he added, "And I have no questions." The real outrage for Brennan was not the leak but the delay. If the Chief had not been intent on saving himself and Nixon some embarrassment on Inauguration day, there probably would have been no damaging leak.
Marshall asked what his clerks knew about the incident
.
When he was assured that they knew nothing, he told them to forget it
Douglas treated the letter as he had treated a request from the Chief the previous term that all clerks be instructed to wear coats in the hallways. He ignored it.
Powell was out of town, so one of his clerks opened the Chief
’
s letter. The clerk had talked to the
Time
reporter, David Beckwith, trying to give him some guidance so he could write an intelligent story when the decision came down. But the delay in announcing the decision had apparently left
Time
with a scoop, if only for half a day.
The clerk called Powell and told him about the Chief
’
s letter and his own terrible mistake in talking to Beckwith. He volunteered to resign.
That would not be necessary, Powell said. But a personal explanation would have to be given to the Chief.
Powell called Burger and explained that one of his clerks, a brilliant and talented young lawyer, was responsible.
The clerk realized his mistake and had learned his lesson. The clerk went to see the Chief.
Burger was sympathetic. Reporters were dishonest and played tricks, he said. It was a lesson everyone had to learn.
Apparently never expecting to learn so much about the little deceptions of both reporters and sources, Burger pressed for all the details. It took nearly forty-five minutes to satisfy his curiosity.
The clerk concluded that Burger understood, that he was being a saint about the matter. Burger wanted a memo detailing exactly what happened. The clerk would not have to resign.
Later, the Chief met with top editors of
Time
in an off-the-record session. He labeled Beckwith's efforts to get inside information at the Court improper, the moral equivalent of wiretapping.
Blackmun suggested to his wife, Dottie, that she come to Court to hear case announcements on Monday, January
22.
He did not tell her why. As Blackmun announced the decisions, Powell sent a note of encouragement to Blackmun's wife. Powell suspected they were about to witness a public outcry, the magnitude of which he and Blackmun had not seen in their short time on the Court.
"I'm very proud of the decision you made," Dottie later told her husband.
After the abortion decision was announced, Blackmun took congratulatory calls through most of the afternoon. But former President Lyndon Johnson died the same day, and the news of his death dominated the next morning's newspapers.
Blackmun was unhappy that the abortion decision did not get more attention. Many women, especially the poor and black, would not learn of their new rights. But the outcry quickly began, led by the Catholic Church. "How many millions of children prior to their birth will never live to see the light of day because of the shocking action of the majority of the United States Supreme Court today?" demanded New York's Terence Cardinal Cooke.
John Joseph Cardinal Krol, of Philadelphia, the president of the National Conference of Catholic Bishops, said, "It is hard to think of any decision in the two hundred years of our history which has had more disastrous implications for our stability as a civilized society."
Thousands of letters poured into the Court. The guards had to set up a special sorting area in the basement with a huge box for each Justice.
The most mail came to Blackmun, the decision's author, and to Brennan, the Court's only Catholic. Some letters compared the Justices to the Butchers of Dachau, child killers, immoral beasts, and Communists. A special ring of hell would be reserved for the Justices. Whole classes from Catholic schools wrote to denounce the Justices as murderers. "I really don't want to write this letter but my teacher made me," one child said.
Minnesota Lutherans zeroed in on Blackmun. New Jersey Catholics called for Brennan's excommunication. Southern Baptists and other groups sent over a thousand bitter letters to Hugo Black, who had died sixteen months earlier. Some letters and calls were death threats.
Blackmun went through the mail piece by piece. The sisters of Saint Mary's hospital, the backbone of the Mayo Clinic, wrote outraged letters week after week. He was tormented. The medical community and even his friends at Mayo were divided. Blackmun encountered picketing for the first time in his life when he gave a speech in Iowa. He understood the position of the antiabortion advocates, but he was deeply hurt by the personal attacks. He felt compelled to point out that there had been six other votes for the decision, besides his, that the Justices had tried to enunciate a constitutional principle, not a moral one. Law and morality overlapped but were not congruent, he insisted. Moral training should come not from the Court but from the Church, the family, the schools.
The letters continued to pour in. Every time a clergyman mentioned the decision in his sermon, the letters trickled in for a month from members of the congregation. The attack gradually wore Blackmun down. At breakfast with his clerks, when the discussion turned to the decision, Blackmun picked up his water glass reflectively, turning it slightly on edge and staring into it in silence.
The criticism also drew Blackmun and Brennan closer. Blackmun wrote Brennan a warm thank-you note: "I know it is tough for you, and I thank you for the manner in which you made your suggestions."
Brennan tried to cheer up Blackmun. Doing the right thing was not often easy, he said. The one thing in the world Brennan did not want known was his role in molding the opinion.*
Blackmun did not cheer up easily. The hysteria on each side of the issue convinced him that any decision would have been unpopular. However, the deepest cut came when the state of Texas filed a petition for rehearing that compared Blackmun's conclusion which held that a fetus was not a person, to the Court's infamous
1857
decision that said that Dred Scott, a slave, was not a citizen or person under the Constitution. Blackmun thought that comparing his opinion with the Court's darkest day of racism was terribly unfair. And, after all, it had been Stewart who had insisted on that part of the opinion.
Months later, Blackmun gave a speech at Emory Law School in Atlanta. He was chatting with students and faculty when a petite young woman with black curly hair ran up the steps to the stage. She squeezed through the group, threw her arms around Blackmun and burst into tears. "I'll never be able to thank you for what you have done. I'll say no more. Thank you."
The woman turned and ran from the room.
Blackmun was shaken. He suspected that the woman was probably someone who had been able to obtain an abortion after the Court's decision. He did not know that "Mary Doe," the woman who had filed one of the original suits in Texas under a pseudonym, had just embraced him.
The Chief had begun an ambitious remodeling program during the summer of
1972
to give the Justices bigger offices to accommodate the increasing number of law clerks.
Douglas thought that giving each Justice an extra office was a waste of the taxpayers' money. He had his office moved to a smaller chamber, wedged between two marble staircases, and decided to cut back from three clerks to
* When the clerks later put together bound volumes of the opinions Brennan had written that term, they included the abortion opinions, and on page
156
they wrote, "These cases are included with Justice Brennan's opinions for the October term
1972
because the opinions for the Court were substantially revised in response to suggestions made by Justice Brennan."
two. Even then he figured that two clerks would probably spend half their time talking to each other, so he would get the work of only one.
His clerk-selection committee had picked two women for the
1972-1973
term: Janet Meik, a pleasant, soft-spoken graduate from University of Southern California Law School, and Carol Bruch, an outspoken honors graduate from the University of California School of Law at Berkeley.
The previous term's clerks, who had laboriously developed a somewhat successful relationship with Douglas, were worried when Bruch announced that she planned to delay her arrival in Washington by several weeks in order to take the California bar exam. They tried to convince her that she would need the extra time to keep up with the mass of cert petitions and requests from Douglas, who called in frequently from Goose Prairie.