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Bookings Blackmun saga is example of destiny eclipsing fate A timely book review by freelance legal writer Richard J. Blaustein of Washington, D.C., of “Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey,” by Linda Greenhouse (Times Books, Henry Holt and Co., 268 Pages). Justice Sandra Day O'Connor, who served with Justice Blackmun, will retire from the court next year.• • • Philosophically speaking, the difference between fate and destiny is that with destiny a person's willful choices coincide or are spurred on by powerful external events, while with fate, an individual resignedly submits to external events or individual weaknesses. Destiny then often indicates a bringing out what is best in a person. Supreme Court Justice Harry Blackmun was genuinely a man with a destiny and not a fate thrust upon him. This is certainly the sense Linda Greenhouse invokes in this well-circulated 2005 book. The inveterate Supreme Court correspondent for the New York Times, Greenhouse writes with verve and anticipation as she charts the professional life of Harry Blackmun. She shows ultimately how Blackmun, the hesitant decision writer of Roe v. Wade, came to embrace with ever-growing zeal the rights premised and granted by the landmark 1973 Supreme Court case. It was in fact the assignment of writing the Roe decision that cast Blackmun's otherwise cautious life as destiny-driven. As she portrays the unobtrusive, shy, even somewhat hypersensitive Blackmun becoming more and more expressive in his Supreme Court writings, Greenhouse also illumines his Supreme Court legacy and how his opinions and dissents cast him as one of the very large legal personalities of the 20th Century. Greenhouse starts her story at childhood, with Blackmun as the son of an unsuccessful would-be merchant with a financially insecure family in Minnesota. Blackmun excelled in school and unexpectedly, just before enrollment, was awarded a scholarship to Harvard by a local lawyers group. He did well at college but was under financial stress, always needing supplemental employment and not even being able to afford Christmas holiday visits home. Minnesota would be a place he surely missed, whether at Harvard and law school, or in later years in Washington. This nostalgia no doubt figured into his decades-long friendship with fellow Minnesotan Warren Burger, whom he first met in kindergarten and with whom he would celebrate milestones in each other's life. Yet their shared sentiments for Minnesota, and their humble backgrounds, also obscured different values and life visions. They ultimately had an irreparable falling out when the two jointly served on the Supreme Court. The course and disillusion of the Black-mun-Burger collegiality is a long thread in Greenhouse's book, one she depicts with genuine sadness, as though Thomas Wolfe's title-turned-maxim, “You Can't Go Home Again,” might easily be transferred as a label to their friendship. Still, Burger's friendship had a central impact on the course of Blackmun's life. It was in large part due to Burger's persuasiveness that Blackmun moved on from the Mayo Clinic, where he had nine happy years as chief counsel, to first become an appeals court judge and later a Supreme Court justice in 1970. When he begun his tenure on the court, Blackmun was in a bit of vertigo. The weightiness and pace of the nation's defining legal contests were somewhat daunting for him, and even the personalities on the court exuded largeness and awe. Although Greenhouse writes sparingly about William O. Douglas, William Brennan, Thurgood Marshall, John Harlan and Hugo Black, they are nonetheless strong figures of real stature. But she offers brief, yet bright, portraits of William Rehnquist, who succeeded in instilling collegiality to the court, and Ruth Bader Ginsburg, who as a frequent counsel before the court in gender discrimination cases cast a purposeful and confident presence, to which Blackmun was not fully accustomed. It was not long after joining the court, however, that Blackmun found his stride and acquired his own influential reputation. In particular, the years of 1972 and 1973 would be especially consequential for the nation, and personally life-transforming, as Blackmun thought through and issued his majority opinion in Roe v. Wade. The Roe decision is the legal and, indeed, emotional core of “Becoming Justice Black-mun.” Greenhouse fascinatingly depicts the setting and process by which the case came before the court, coupled with the other abortion case, Doe v. Bolton, and the manner by which Roe displaced Doe as the lead case. There was also drama, as Justices Harlan and Black died shortly after unexpectedly resigning, and the court reluctantly readied itself for deciding the controversial cases with only seven judges. To Blackmun's relief, the justices changed their minds and held re-argument of the cases when two new justices, Rehnquist and John Paul Stevens, were confirmed with sufficient expediency. By the time of new arguments of the abortion cases – after months of his clerks' research and writing, his own introspection and a consequential summer visit to the Mayo Clinic's library – “the issues in his own mind were now fairly clear,” Greenhouse writes. Perhaps as to Roe, Greenhouse most interestingly writes about the different vantages from which Blackmun and his 1973 opinion would be criticized, challenged and often vilified in the aftermath. A surprising one was from academia, with the most prominent academic criticism of Roe coming from constitutional scholar and former Earl Warren clerk John Hart Ely He wrote the famous and dismissive criticism, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” in the Yale Law Journal. Greenhouse comments that “Law review battles aside, it was Ely's critique that shaped the academic discourse. This debate – conducted almost entirely by men, at a time when women accounted for less than 3 percent of the law schools tenured ranks – helped make it acceptable, even fashionable to express disdain for the opinion even in liberal intellectual circles. “The result was that in its earliest years, Roe lacked the enthusiastic support in the academic world that might have provided intellectual armor in the battles to come.” This is certainly a prescient assertion. The “battles” certainly came, and will come again soon. In aftermath of the Starr Report, current challenges to civil liberties, and the readied efforts to overturn – or at least chip away at – Roe during new Supreme Court justice confirmations, that early academic appreciation of what Blackmun and his closest colleagues sought to protect would have consolidated understanding and support for a fundamental right that might atrophy in the next few years. Yet Blackmun would not be deterred by his academic detractors. He stood by Roe and its legacy, and here is where Greenhouse depicts an individual rising to meet a personal destiny. “As attacks on the decision mounted both outside the court and within it,” she writes, “he would come to embrace Roe with a fierce attachment and a deep personal pride.” Furthermore, as he wrote decisions and dissents that dealt with abortion and other matters, such as the death penalty, his writings became more personal and filled with feeling. In one especially emblematic episode, Blackmun read aloud his dissent in the 1986 Bowers v. Hardwick case, in which the court would not strike down a Georgia sodomy law. Greenhouse quotes Blackmun's defense of privacy: “It is precisely because the issue raised by the case touches the heart of what makes individuals what they are...” She then narrates, “When he was finished Marshall passed him a note. It had been more than thirteen years since Marshall had accused his junior colleague of failing to understand in the bankruptcy fee case, how other people lived. Now the aging civil rights hero wrote. ‘you was great.'” Mirroring Marshall's fond gesture, women, individuals involved in death row situations and others, too, would increasingly regard Blackmun as their champion on the court. What ultimately emerges in “Becoming Justice Blackmun is a man changing, becoming expressive in his later years, and leaving behind as a legacy a jurisprudence of unexpected feeling and expressed sympathies. With the recent release of Blackmun's papers, to which Greenhouse had first and privileged access, there will be other books on the jurist, more scholarly perhaps and certainly using more sources. But it will be hard to find a book or a law review article with quite the personal touch and the convincing conveyance of growth and destiny that “Becoming Justice Blackmun” conveys. |