In the Chicago Tribune (my former prof) Ron Rotunda has a piece, titled “On deep background 41 years later.” It begins:
Type “41st anniversary of Roe v. Wade” into Google and you will get more than 54,000 hits. Wednesday marks the date. It caused me to review the notes of a conversation a small group of us had with U.S. Supreme Court Justice Harry Blackmun and his wife about Roe. It was the summer of 1994, the 21st anniversary of Roe.
He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, “The Supreme Question: Row vs. Wade.” Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke.
Blackmun began by saying, “One usually doesn’t speak about the conference of the U.S. Supreme Court.” However, it was important to speak to “promote understanding of the Supreme Court.” “I decided it,” he said.
First, Ron talks about the decision to schedule Roe for arguments in 1971 when there were only 7 justices:
At the end of 1971, there were only seven justices on the court, so Chief Justice Warren E. Burger appointed a committee to select cases for argument, to avoid a 4-to-3 split. “The screening process was poorly conducted by the screening committee, of which I was a member,” he said. It placed Roe for argument. “Our screening committee made serious mistakes. We had a bull by the horns.”
Second, Ron talks about Blackmun’s perceptions of the oral arguments:
He said, “The first (oral) argument was poor. Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, ‘Winner of Roe v. Wade.‘ I find that peculiar.” Blackmun’s gratuitous comments about the gender of the oral advocates and their competence came with no transition, either before or after, and no explanation why.
During the first argument, Blackmun was “disturbed” that the parties did not discuss the Hippocratic oath. “One of the woman oralists, in reaction to my question, said that it was irrelevant.” However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.
Third, Ron recalls the votes at conference:
At the conference a few days later, the votes were tentative, according to Blackmun. He recalled that Justice Burger suggested “Someone should prepare a helpful memorandum, not a first opinion. (Justice William) Douglas wanted the assignment, but Burger gave it to me. I don’t know why. Maybe because of my 10-year association with Mayo (Clinic).”
Blackmun’s memorandum urged that the Supreme Court strike the law. He also “wanted (a) new oral argument, to get some help on the Hippocratic oath. Also, (Justices William) Rehnquist and (Lewis) Powell were now added to the court.” Blackmun said Chief Justice Burger also wanted reargument. “I think that he thought that he might get a 5-to-4 majority to uphold the law.” Then Blackmun said, with emphasis, “It was ugly.”
Fourth, Blackmun suggested that Justice White’s dissent was due to his “wife’s influence.”
Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.” With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.” When White announced his dissent, “White was emotional.” Blackmun asked rhetorically: “Why was White so strong against my view? His upbringing in modest circumstances? Or his wife’s influence?”
Fifth, Blackmun was surprised that his opinion resulted in such controversy:
Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive” and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”
He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.
The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”
Sixth, Blackmun viewed this as a “doctor’s rights case, not a woman’s right case.”
Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.
Seventh, Blackmun closes by saying he is not that bad of a guy.
He closed by saying, “it has been exciting to be in the center of the issue so politicized by the political branches.” He added, “I make no apologies for the scholarship or result in the opinion.” His last words on Roe, “I’m really not too bad a guy after all.”
Update: Ron writes in with additional details of the Institute:
I got to be friendly with Harry Blackmun (he said to call him Harry) and his wife, Dottie. He wanted to give his side of the story. It was a small group. We were in Aspen. I may have been the only one who took notes. He knew I was taking notes. He just wanted to say some things on his mind about the case, but he wanted to questions. He spoke and that was it.
I filed my notes away on my computer and then forgot about them for a long while. Something made me think of the upcoming anniversary and so I tried to find out where I put the notes. (I took my notes long hand and transferred them to Word Perfect, which is what we used in the old days.)
So, I searched for the digital file on my computer. It took a bit of effort. After moving from one computer to another and from one school to another (from the U. of Illinois to George Mason to Chapman), it took a bit of time but I found the old notes and then I wrote this piece.
Update: As Greg points out in the comments below, it was common for Justice Blackmun to identify counsel based on their race. As Tony Mauro noted in this 2005 article about Blackmun’s papers:
The other somewhat unnerving aspect of Justice Blackmun’s papers can be found in the notes he took on oral argument. In many instances he graded the advocates before him – he once gave an ACLU lawyer by the name of Ruth Bader Ginsburg a grade of C+. 54 There is nothing particularly wrong with that, but these grades were also accompanied by unusual annotations about the lawyer’s characteristics, physical and otherwise. One lawyer in a 1971 case got a D, and was described this way: “sad face, short, stupid.” 5 Another lawyer in the same case got a D+, with this annotation: “short, older, balding, licks fingers.” 56 Hispanic lawyers were labeled “H,” and lawyers who appeared to him to be Jewish got a “J.” Future Justice Ginsburg, in the 1973 argument that got her a C+, is described this way: “NYC J ACLU very precise, reads. Rutgers.” 57 She was teaching at Rutgers Law School at the time.