By Dave Andrusko
It was not until about a week before Justice Harry Blackmun's vast trove of files were officially unsealed that there was much notice in the popular press. Part of that was probably resentment that the Blackmun estate had given Linda Greenhouse of the New York Times and Nina Totenberg of National Public Radio a two-month head start on deciphering the staggering paper trail, consisting of more than 1,500 boxes of documents and more than 530,000 items. This allowed the two longtime apologists for the author of Roe v. Wade to file in-depth stories March 4, the day the cache was opened to the public.
Based on the initial spate of news stories, Blackmun's papers provide much grist for the mill, although most of what he wrote merely confirmed what we already knew about him. One thing we're reminded of for sure: the late Supreme Court justice had perfected the art of attributing his own unpleasant behavior to others.
For example, he was the Rembrandt of scolding other justices for playing "politics" at the very same time his intra-court maneuvering and opinions were drenched in political machinations. The Washington Post reported on March 5 that "from the beginning," the 1992 Planned Parenthood v. Casey case "was viewed through a political lens in Blackmun's chambers." Understandably so, for at the time pro-abortionists were terrified that the justices would use the Pennsylvania case to say that Roe was not good constitutional law.
According to the Post, one of Blackmun's law clerks counseled Blackmun to make sure the case was heard and decided in an election year. "If you believe that there are enough votes on the court now to overturn Roe," Molly McUsic advised, "it would be better to do it this year before the election and give women the opportunity to vote their outrage."
Blackmun agreed. Without citing a shred of evidence, Blackmun persuaded himself that Roe v. Wade foe Chief Justice William Rehnquist was "deliberately delaying the court's consideration of the case so that it would not be heard until after the election," according to the Post.
Blackmun's politicking didn't end there. When Casey reaffirmed the "right" to abortion, "Politics also dictated the blast Blackmun aimed at the court's conservatives in his own separate opinion concurring in the court's judgment," the Post reported. "It was an open appeal to abortion rights supporters to remain vigilant on future court appointments despite their victory."
In that self-pitying/self-aggrandizing/woe-is-me voice he adopted in his later years on the Court, Blackmun intoned, "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light," he wrote. "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Old Horatio at the Gate wasn't going to be at his post forever.
Blackmun's name came to be a synonym for Roe v. Wade, with which he had a love-hate relationship (far more the former than the latter). While he will go down in history as the author of the most controversial opinion of the past half-century, it surely has its compensations.
An undistinguished jurist, Blackmun made few ripples when he was appointed to the High Court. But in the mythic lore that the Media Elite subscribe to, the erstwhile "skeptical bystander" in the battle to protect "women's rights" eventually "enlisted in the cause and expressed the hope that his work had contributed to 'the progress of the emancipation of women,' according to Linda Greenhouse. More generally, Greenhouse and her colleagues lauded Blackmun because he "acted as a brake on the rising conservative forces of the Burger and Rehnquist courts."
The most flamboyant news surely concerned the 1992 Planned Parenthood v. Casey decision.
The Times' March 4 story began with this paragraph: "In the spring of 1992, Justice Harry A. Blackmun's struggle to preserve the right to abortion he had articulated for the Supreme Court two decades earlier was headed for bitter failure." Greenhouse wrote that five justices, including Anthony Kennedy, had voted in a closed-door conference "to uphold provisions in a restrictive Pennsylvania abortion law," adding, "Roe v. Wade was in peril."
But the plot thickened when, according to Blackmun's files, Kennedy wrote Blackmun a note. According to the Times, it read, "I need to see you as soon as you have a few moments. I want to tell you about a new development in Planned Parenthood v. Casey. It should come as welcome news." Blackmun then wrote on a pink memo pad, "Roe Stands."
The inference from the first few paragraphs of Greenhouse's story is that upholding the law would have spelled the end of Roe. But as many commentators said before and after the case was decided in 1992, the law could have been upheld without touching the core of Roe. In fact, Kennedy did vote to uphold the Pennsylvania law (except for spousal notification).
Far more importantly, however Kennedy affirmed Roe using a different legal rationale.
What pro-lifers hoped for and pro-abortionists feared was that a majority of the justices would conclude that Roe v. Wade was not good constitutional law and would use the opportunity to explicitly overturn the 1973 decision.
The Associated Press characterized the ensuing Casey ruling as having "carved out a middle ground." It did nothing of the sort. The Casey decision reformulated the legal rationale upholding the "right" to abortion.
If we are to believe the media's characterizations of Blackmun's papers, the justices didn't have a clue what a battle their Roe v. Wade decision would unleash. We also learn that in reaching the media-approved final endpoint in his "journey," Blackmun made more stops along the way than previously thought.
According to Greenhouse, Blackmun seemed ready to gut abortion laws in 1971 when the Court decided United States v. Vuitch, a challenge to the District of Columbia's abortion law.
Vuitch is "largely forgotten" because of Roe's "long shadow," Greenhouse writes. But Blackmun's memo to himself reveals he had already concluded that," Certainly a good faith medical judgment must be a defense to any charge" filed under the District's abortion statute.
In addition, it is very much worth pausing to note where Blackmun went to find support for his position that all abortion laws were unconstitutional. "In the memo, he reviewed the court's recent precedents establishing a right to privacy for the use of birth control and the private possession of pornography," Greenhouse writes. "These cases 'afford potent precedence in the privacy field,' he wrote, adding, 'I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented in the present case.'"
Nothing that has come out in his enormous archives thus far will challenge Blackmun's status as a media icon. In fact, his credentials as a "champion of women's rights" have only been burnished for those who equate the annihilation of over 44 million unborn babies with "progress."
In his self-delusion (nurtured by an idolatrous press corps), Blackmun told himself that abortion "was a step that had to be taken...toward the full emancipation of women." We, of course, know better.
As NRLC anticipated in a statement it issued prior to the papers' release, nothing in the initial media accounts challenges the basic conclusion that in Roe v. Wade, seven unelected justices chose to act as a super-legislature, in the process obliterating not only the lives of over 44 million unborn babies but also the carefully crafted decisions of 50 state legislatures.
This truth wouldn't change if Blackmun's stash of papers reached from here to the moon. Roe was a jurisprudential disaster, a verdict whose sheer viciousness and inhumanity rivals the infamous Dred Scott decision of 1857.
It was not worthy of us in 1973. It is even less so today.
Dave Andrusko can be reached at firstname.lastname@example.org