36 june 27, 2005 Ǡ the new republic tails off, its murky mistakes (or sins) per- images of their common world. In the We are things thrown in the air manently inscribed in the memories of opening poem of Day by Day, however, alive in flight. . . all concerned. Lowell takes a stronger, if partly ironic, our rust the color of the chameleon. As Lowell finishes what will be his last view of the contribution of age to poetic book, Day by Day, he writes a valedictory strength: Living by “improvisation and in- letter to Frank Bidart, certain that he has vention,” changing styles, enthusiasms, consumed all his subject matter: This is riches: wives, girlfriends, and addresses (there the eminence not to be envied, are thirty-eight addresses—not including Now there can be no more. I can rub the account hospitals—listed in Hamilton’s appen- my hands over the bottom of the pot accumulating layer and angle, dix), Lowell endured a punishing rest- and find no more material.... I think face and profile, lessness, a terrible drivenness, that was I’ve even thrown some of the metal 50 years of snapshots, belied by his leisurely social ease, his of the pot in.And yet, nothing is ever the ladder of ripening likeness. desultory amusement, his delight in late- perfect, even within its crippling in- night talk. His enormous early zest for evitable human limitations.... I think he letters give us (with- almost anything—theology, books, wom- the ambition of art, the feeding on out biographical intervention) en, friendship, politics—gradually dimin- one’s soul, memory, mind etc. gives a “layer and angle, /face and ishes, here, under the blows of illness and mixture of glory and exhaustion. I profile” of Lowell’s mind and marital failure and the inconveniences think in the end, there is no end, the Tcharacter. They offer forty years of Low- of age.A poem by Hölderlin, called “The thread frays rather than is cut, or if it ellian snapshots—those “lurid, rapid, gar- Course of Life,” could serve as a motto is cut suddenly, it usually hurtingly ish, grouped” likenesses (as he called for the later Lowell: frays before being cut. No perfected them in “Epilogue”). The lurid and the end, but a lot of meat and drink along garish certainly are here, but the letters Upwards my soul aspired, the way. are also touching, spirited, and reflective. but soon Like the snapshots, they are “grouped”: Love drew it down; Lowell’s thread was cut suddenly, but Lowell, for all his solitariness as a writer, Suffering humbled it more; the letters are witness to how many fray- intensely required others to talk to, to So I hasten round the curve ings preceded the end.The poem approx- write to, and to love, and the letters are Of life, and return whence I began. imating the sentiments in this letter had the proof of his literary gregariousness. appeared earlier, as the final sonnet in They confirm, especially in their volatility In the letters, as in the poems, Lowell is For Lizzie and Harriet. It is called “Obit,” of erotic choice, Lowell’s Keatsian char- a more humanly attractive figure at the and begins with an acknowledgment of acterization of writers as chameleons: weary end than in the fierce beginning. ½ the most hurting fraying of all, the disso- lution of a long marriage: “Our love will not come back on fortune’s wheel.” The poem becomes a hymn in favor of natural David J. Garrow change over transcendence, but ends, “After loving you so much, can I forget / you for eternity, and have no other The Accidental Jurist choice?” The valedictory poems of Day by Day, published just before the poet’s death, are free-verse exhibits of the fray- Becoming Justice Blackmun: called,” the Court’s name for a gather- ing thread, as Lowell fears a depletion Harry Blackmun’s ing of the nine justices. “I walked into that can merely transcribe, not create—a Supreme Court Journey that room and there was Hugo Black, dejection phrased, of course, in as firm a By Linda Greenhouse William O. Douglas, William J. Brennan style as ever: (Times Books, 268 pp., $25) Jr., John Marshall Harlan—and I said to myself,‘What am I doing here?’ ” I am too weak to strain to remember, arry Blackmun always In the early 1970s, Blackmun was not or give remembered his very first the only person asking that question. recollection the eye of a microscope. day on the United States Justices Black, Douglas, and Potter Stew- I see Supreme Court.“I’ll never art all wondered whether the little- horse and meadow, duck and pond, forget the ninth day of known sixty-one-year-old Minnesotan universal consolatory HJune 1970, when I was sworn in,” he told could handle the tasks that confronted description without significance, a small audience in the south of France them all. Just eight years earlier those transcribed verbatim by my eye. in 1992. “Immediately after the swear- justices had watched with profound ing in we went into ‘the Conference,’ so sadness as a similarly untested Midwest- The animus of politics, the aspirations erner—Charles E. Whittaker, who had of religion, have waned, and the poet David J. Garrow is the author of Liberty joined the Court in 1957—cracked under sees himself modestly, hoping to be one and Sexuality:The Right to Privacy the emotional strain of the Court’s tough of those who have consoled their readers and the Making of Roe v. Wade (Uni- cases. Hospitalized after threatening to by transcribing into words the universal versity of California Press). commit suicide,Whittaker was pressured the new republic Ǡ june 27, 2005 37 into retiring by Chief Justice Earl War- When Blackmun’s huge collection of per- ren. Whittaker had been named to the sonal and official papers at the Library of lower federal bench, and then to the Congress was first opened in early 2004, Supreme Court, largely as a result of his five years after his death, one of the most close friendship with President Eisen- notable troves was the many deeply per- hower’s brother. sonal letters from Burger to Blackmun Harry Blackmun arrived in Washing- pre-dating 1970. ton straight from the same appeals court Linda Greenhouse, who for twenty- on which Whittaker had sat. He, too, seven years has covered the Supreme owed his appointment to that judgeship, Court for The New York Times, made and then President Nixon’s nomination the two justices’ lifelong relationship the of him to the high court, largely to one centerpiece of two front-page stories one man: Warren E. Burger, his closest friend year ago. Given advance access to the since kindergarten and, since 1969, chief Blackmun collection (along with Nina justice of the United States. Burger and Totenberg of National Public Radio), Blackmun grew up together in St. Paul Greenhouse had a two-month head start before Blackmun received a scholarship on other journalists, but the Times pub- to attend Harvard College. After law lished only a modest amount of the mate- school, also at Harvard, Blackmun re- rial that she gathered. Her new book is turned to Minnesota to clerk for a federal not a long one, nor is it based on any judge. He then joined one of the Twin additional sources beyond Blackmun’s Cities’ premier law firms, where he did papers, but it reprises in rich, thoughtful, much of his work for the Mayo Clinic in and more extensive detail the main emo- nearby Rochester. In 1949 Mayo asked tional and interpretive threads of Black- Blackmun to become its first in-house mun’s career. counsel, and Blackmun, his wife Dottie, Blackmun joined the Supreme Court and their three teenage daughters moved after a Senate Judiciary Committee hear- to small-town Rochester. ing that lasted less than four hours, de- Warren Burger earned his law degree spite the two prior nominees for that va- by attending night classes while working cancy, federal appellate judges Clement for an insurance firm in St. Paul. He then Haynsworth and G. Harrold Carswell, joined a local law firm, married (Black- having both been rejected by the Senate. mun was best man at his wedding), and Blackmun’s confirmation was unani- became active in Republican politics. mous, but repeated newspaper depictions He managed the election campaigns of of him as Burger’s “Minnesota Twin” de- Harold Stassen, the youthful three-term cisively counterbalanced the senatorial governor, and also led Stassen’s unsuc- courtesy. Blackmun’s first years on the cessful presidential candidacy in 1948. high bench underscored both his insecu- At the closely contested Republican Na- rities about whether he belonged there tional Convention in 1952, Burger proved and his pronounced conservatism. In crucial to Dwight D. Eisenhower’s first Wyman v. James, a case challenging in- ballot nomination.When Eisenhower be- trusive home visits imposed upon welfare came president, Burger was rewarded by recipients, and in United States v. Kras, being named assistant attorney general which disputed a $50 fee required of in charge of the Justice Department’s anyone filing for bankruptcy, Blackmun Civil Division. wrote majority opinions upholding the Three years later, Eisenhower ele- policies despite fervent dissents from the vated Burger to a judgeship on the U.S. Court’s liberals. Court of Appeals for the District of Co- lumbia Circuit. His judicial status not- he singular—and momen- withstanding, Burger remained in close tous—exception during Black- contact with the Justice Department, and mun’s first three years on the when the Minnesota judge for whom Court was his opinion in Roe v. Blackmun once had clerked signaled his TWade.This case, along with its companion desire to retire, Burger played a decisive case, Doe v. Bolton, arrived at the Court role in ensuring that the nomination for while the justices were already consid- the vacancy would go to his friend. In No- ering a criminal appeal challenging the vember 1959, on his fifty-first birthday, District of Columbia’s anti-abortion law. Blackmun took his seat on the U.S. Court Blackmun indicated in his own private of Appeals for the Eighth Circuit. Their notes on that case that he “would not joint service as federal judges strength- be offended” by the extension of the ened Burger and Blackmun’s friendship. Court’s constitutional privacy precedents 38 june 27, 2005 Ǡ the new republic to include women’s access to abortion, old friends was a telling sign of what was of knowing when life begins, a passage but the justices resolved the D.C. case to come. he wrongly claimed he added only at without confronting that issue. In De- The greatest irony of Roe and Doe is Stewart’s insistence. Blackmun never cember 1971, Roe, which challenged how Blackmun came to personify a rul- mentioned, and may very well not have Texas’s nineteenth-century abortion sta- ing that he initially sought to hedge and remembered, the brief flurry of clerk- tute, and Doe, which disputed Georgia’s about which he later admitted surprising drafted memos about whether to almost slightly liberalized law, came before a ambivalence. In the months immediately double the extent of Roe’s constitution- seven-justice Court. Both Black and Har- following the cases’ assignment, Black- al reach. lan had retired earlier that fall, and their mun and his law clerks drafted rather successors, Lewis Powell and William H. narrow opinions overturning the Texas OE and DOE were an- Rehnquist, would not take their seats statute but leaving many other issues in nounced on January 22, 1973, until early 1972. limbo. Come late May, feeling dissatis- and protests targeting Black- Years later, in a letter to Rehnquist in fied with his drafts, Blackmun recom- mun began almost immedi- 1987 and in multiple oral history inter- mended holding the two cases over for Rately. “I have never before been so per- views recorded in the 1990s, Blackmun re-argument in the fall rather than hand- sonally abused and castigated,” he wrote repeatedly asserted that the seven jus- ing down decisions in June. But most to a friend who was a Minnesota minis- tices heard Roe and Doe only after a members of his nascent majority— ter soon afterward. Far more notably, Burger-appointed subcommittee chaired Brennan, Stewart, and especially Doug- Greenhouse quotes a letter that Black- by Potter Stewart erred in failing to post- las—reacted angrily to the suggestion, mun sent to a Catholic priest whom he pone the two cases until a full Court was fearing that the addition of Powell and knew well. Emphasizing that the Court available. In fact, not a single contempo- Rehnquist, plus the uncertainty of both “did not adjudicate that abortion is right raneous document, in either Blackmun’s Blackmun and Burger, might well mean or wrong or moral or immoral,” the au- papers or those of other justices, offers that delay would result in an opposite thor of Roe v. Wade went on to declare any evidence that this subcommittee ex- outcome. that “I share your abhorrence for abor- isted anywhere except in Blackmun’s Blackmun defused the in-house con- tion and am personally against it.” Black- faulty memory. Blackmun’s interviews troversy by re-assuring those justices mun added that “I understand the criti- are misleading on many particulars that his votes were firm, and over the cal letters, but I do not understand the concerning Roe and Doe; and aside from summer his law clerk George Frampton vilification and personal abuse which has her rehearsal of the fictional subcommit- significantly fleshed out the two opin- come to me from some quarters.” tee, Greenhouse knowledgeably avoids ions, introducing many of the ingredients In that letter, Blackmun spoke of “this all the historiographical traps. On the that would appear in the final rulings unwelcome job I seem to have inherit- most interesting question of all—why five months later. Frampton flagged for ed,” and years later he stated that Roe did Burger assign the preparation of the Blackmun how he had failed to expand “happened to me in my early years here.” majority opinions in Roe and Doe to Roe’s minimal constitutional analysis, Yet rather than continue to distance him- his old friend?—Blackmun always pro- but once the two cases were re-argued self from Roe’s holding or put the de- fessed to know nothing more than any- in October, no bickering ensued. Powell cision behind him, Blackmun, as Green- one else. Given how exceptionally close heartily sided with Blackmun, making house rightly says, came “to embrace Roe the relationship between the two men for a seven-member majority if the un- with a fierce attachment and a deep per- had been before Blackmun joined the certain Burger remained on board. With sonal pride.” As the attacks on Roe be- Court, the absence of any private discus- support from both Brennan and Thur- came more sustained and unrelenting, sion of the two cases between the two good Marshall, Powell recommended Blackmun responded by championing that Blackmun clarify how the rulings the decision with much greater fervency would apply to the later stages of preg- than he had exhibited in early 1973. nancy. With relatively little reflection or Greenhouse suggests that Blackmun’s debate, Roe’s and Doe’s declaration of ardent embrace of Roe was rooted ini- women’s access to legal abortion was ex- tially in his remarkable sensitivity to criti- tended from the end of the first trimester cism. She depicts Blackmun as unusually of pregnancy, where Blackmun’s existing self-preoccupied from early life onward. draft had limited it, to the point of fetal At the age of fourteen, he underwent an viability, near the end of the second appendectomy, and “for the rest of his trimester. life, Blackmun would mark the anniver- The most fascinating and unanswer- sary of his own surgery; March 8 attained able question about the making of Roe a lasting significance.” Indeed, when Jus- v. Wade is to what extent, if any, the sub- tice Sandra Day O’Connor had the same sequent political controversy over the operation in 1988, Blackmun wrote her ruling would have been less intense, or to say that “sixty-five years ago today I would even have abated, had the Court had my first surgery.” stuck with Blackmun’s initial inclination While Blackmun was serving on the to protect fully only first-trimester abor- appeals court in the late 1960s, he was tions. Years later, when asked if he had assigned an opinion upholding a death any regrets about Roe, Blackmun repeat- sentence that had been imposed on a edly cited only the opinion’s disavowal murderer who had killed three people the new republic Ǡ june 27, 2005 39 during the course of a bank robbery. for himself what Lazarus called “a dis- ous Burger often was in his dealings with Blackmun appended a brief statement at tinctly solitary existence,” which was fur- his colleagues.Yet Greenhouse is certain- the end of his draft opinion expressing ther magnified by Blackmun’s strong ly correct to emphasize how “Blackmun, uncertainty about capital punishment, aversion to discussing pending cases always thin-skinned, was hypersensitive and asked his fellow judges if any ob- orally with his clerks. Sometimes at to slights from Burger,” and was “per- jected. When two did, calling the pas- breakfast Blackmun would pull from his haps perceiving slights when . . . nothing sage “gratuitous,” Blackmun was “deeply pocket small slips of paper with ques- particularly personal was intended.” wounded,” Greenhouse records. What’s tions or thoughts that he wanted his Early in 1978, Blackmun wrote Burg- more, “months later, the episode ap- clerks to consider, but “they were only er to complain that while some justices peared to have become more, rather hints,” Schneider said. already had as many as fourteen than less, painful to Blackmun.” Blackmun “liked to tell clerkship majority-opinion assignments for the cur- This precursor to his behavior after applicants that he was the least able jus- rent term, he had received only ten. This Roe also foreshadowed Blackmun’s long tice,” Lazarus revealed, and Blackmun’s may not seem like a major disparity, but subsequent struggle with the death pen- low self-regard may also have been a Blackmun told Burger that the difference alty. Even as early as 1972, while voting major factor in how distant he remained “makes me feel somewhat humiliated not to uphold the constitutionality of capital from his colleagues. Come 1992, when only personally,but publicly.” Blackmun’s punishment, Blackmun nonetheless vol- Justice Anthony Kennedy, Blackmun’s sensitivity may have stemmed from the unteered that “I yield to no one in the next-door neighbor at the Court, wanted two men’s intense disagreement over depth of my distaste, antipathy, and, in- to tell Blackmun that he, O’Connor, and Bates v. Arizona State Bar, in which the deed, abhorrence for the death penalty.” David Souter had hijacked the famous Court legalized commercial advertising Blackmun’s struggle to separate his per- abortion case of Planned Parenthood v. by lawyers. Burger not only dissented an- sonal opinions from his judicial responsi- Casey from Chief Justice Rehnquist, grily from Blackmun’s majority opinion, bilities, combined with his own deep- Kennedy sent Blackmun a handwritten he also repeatedly denounced the deci- seated doubts about his analytical ability, letter asking for time to talk. As Lazarus sion in various public forums. Blackmun, made for a justice who invested very long observed, “Kennedy’s note—an awk- Greenhouse reports, responded by taking hours in his job but never relished it. ward and stilted request for a face-to- “a lasting proprietary interest” in the face conversation—is the kind of note case, just as he did with Roe. or me, my years at the one would write to a virtual stranger,” Court have not been very not someone whose office had been next ne of the most signif- much ‘fun’ and have not been door for more than four years. icant votes that Blackmun ‘enjoyable’ in the ordinary Blackmun’s increasing distance from cast during his twenty-four ‘Fmeaning of that word,” Blackmun con- Warren Burger over the course of the years on the Court came in fessed in 1986. “Perhaps I am too per- 1970s was both dramatic and painful. O1985, in Garcia v. San Antonio Metropoli- sonally sensitive.” His daughter Nancy, Greenhouse quotes statistics showing who became a psychologist, observed that during their first five years together, that there “was often a shadow of pes- the two men agreed in 87.5 percent of simism, of sadness, of intermittent de- closely divided cases. During their sec- pression about him.”At the Court, Black- ond five years, however, that percen- mun’s daily routine was marked by tage dropped to 45.5, and by the early isolation and loneliness. Most stories that 1980s Blackmun and Burger were on his former clerks tell revolve around the the same side of only 32.4 percent of the regular weekday routine of breakfast- Court’s five-to-four cases. Roe v. Wade ing with Blackmun each morning in the was not a significant factor in their split. Court’s public cafeteria. They recount his It appears that the Court’s handling of kind greetings to visitors and his great United States v. Nixon in 1974, which interest in baseball, but “as 9 o’clock ap- precipitated the president’s resignation proached,” former clerk Edward Lazarus from office, played a major role. wrote in 2004, “the Justice’s attitude and “From then on we grew apart,” demeanor changed radically.As he shift- Greenhouse quotes Blackmun as re- ed into work mode, Blackmun became membering, but the details of the old unapproachable, a man consumed by a friends’ divergence are sketchy. Black- mantle of professional duty that fairly mun recorded in his notes numerous seemed to crush him.” instances in which he felt Burger had Blackmun’s clerk Mark Schneider behaved poorly towards him—“CJ for recalled that “except on argument days,” the first time very cool,” “CJ picks on me when the Court heard cases, “after at conference”—and Greenhouse rightly breakfast he would generally hole him- observes “how easily hurt” Blackmun self away in a private reading room in was “by any indication from Burger of a the library and pore over briefs and lack of regard.” Virtually every journalist cases. He was not to be disturbed. He and historian who has addressed Bur- took a private lunch and then went back ger’s chief justiceship has acknowledged to the library.” Blackmun thus fashioned how pompous, patronizing, and imperi- 40 june 27, 2005 Ǡ the new republic tan Transit Authority, a case about fed- almost clinical tone of Roe was replaced stance of the law and its development,” eralism. Ten years earlier, in National by something close to passion.The rights he disdainfully added. “He was what he League of Cities v. Usery, a similar feder- of women, rather than those of doctors,” was and therefore must be accepted as alism case that Lewis Powell had called became Blackmun’s focus. Yet Green- an influential Chief Justice.” “the most important case since I have house does not note a crucial memo that As Greenhouse comments, “This was been here,” Blackmun had joined with Karlan gave Blackmun after reviewing Blackmun speaking directly, not Black- Powell and the more conservative jus- a first draft of his opinion. “I think the mun editing a law clerk’s draft.” Bur- tices to exempt state government em- constant appending of phrases like ‘with ger, Blackmun went on, “did not achieve ployees from federal wage and hour pro- her physician’ to the description of the by smooth or gentle or patient tactics.” tections. But Greenhouse discloses that woman’s right to an abortion . . . is un- When the two men differed, “the dis- when the Garcia case arrived at the necessary,” Karlan asserted. “It is a agreement often was basic and, on occa- Court in 1984, one of Blackmun’s law woman’s right, and not a physician’s, and sion, emphatic. He had little patience for clerks, Scott R. McIntosh, wrote a long I think the repeated reiteration of the disagreement,” and when it occurred, memorandum that “persuaded him that physician’s role detracts from the essen- “his disappointment was evident and not he was on the wrong side” of the Court’s tial nature of this right to women.” concealed. The situation was not com- five-to-four divide. Burger had assigned As the final opinion reflected, Blackmun fortable, but it was inevitable.” Whether Blackmun the majority opinion on be- and her fellow clerks took Karlan’s com- that verdict was based upon simply his half of the Court’s conservatives, but ments to heart. view of Burger’s personality, or whether McIntosh “offered to produce a draft” As the years went on, Blackmun’s law his own evolution had contributed signif- that would instead align Blackmun with clerks enjoyed increasingly free rein. icantly to that inevitability, Blackmun the four dissenters. Blackmun adopted Greenhouse emphasizes “the disrespect- did not say. McIntosh’s draft and notified his col- ful way his law clerks felt free—or even Three years after Burger’s retire- leagues of his switch. Burger protested encouraged—to refer to the chief jus- ment, the Bush administration mounted and insisted that Garcia be re-argued, but tice” in their memos to Blackmun. But a frontal challenge to Roe v. Wade, and in Blackmun’s new position prevailed. Blackmun’s contempt was not limited to doing so it cited Blackmun’s opinion in The following term, another law clerk, Warren Burger; his acerbic views of other Garcia as precedent for how the Court Pamela Karlan, made similarly influen- colleagues—terming them both rude and sometimes reversed its own constitution- tial contributions. In September 1985, the childish—recur repeatedly in his private al rulings. Blackmun was furious.“This is Court’s internal civility was badly roiled notes. Greenhouse also acknowledges a personal attack on me,” he angrily, and by an angry dispute over Darden v. Wain- Blackmun’s regular pattern of recording egocentrically, noted. But Roe survived wright, a capital punishment case. Black- physical descriptions of lawyers and oth- not only that assault, in Webster v. Repro- mun drafted a letter to his colleagues er individuals whom he encountered ductive Health Services, when O’Connor complaining that “the Court as an institu- “in terms that were rarely flattering.” refused to give Chief Justice Rehnquist tion would certainly look a little strange” Women attorneys “were usually de- an anti-Roe majority, but also a far if it granted review but nonetheless al- scribed at least partly by their attire” and greater threat in Planned Parenthood v. lowed Darden to be executed before a often by their hairstyles. A male appli- Casey in 1992. As Kennedy told Black- decision could be rendered. Karlan, cant for a clerkship had a “small nose.” mun face-to-face after first sending that Greenhouse recounts, told Blackmun Solicitor General Kenneth Starr was la- ungainly note, not only had O’Connor that that sentence “was ‘far too tame, giv- beled “a Boy Scout goodie-goodie.” joined with newcomer David Souter in en what we’re really talking about here.’ refusing to inter Roe, but Kennedy him- She suggested stronger language: the arren Burger retired self surprisingly had defected from the Court would appear ‘intellectually and as chief justice in 1986, expressly anti-Roe stance that he previ- morally bankrupt.’ Blackmun adopted but “there is no record ously had endorsed in Webster. her proposal” and included her harsh that the two old friends phrase in his letter. Wexchanged any personal notes about this he Casey ruling preserved That same year also featured one of momentous transition,” as Greenhouse Roe just as Blackmun, by then the most significant post-Roe abortion poignantly remarks. By that time, “the eighty-three years old, was cases, Thornburgh v. American College friendship between Burger and Black- beginning seriously to con- of Obstetrics and Gynecology. Green- mun had vanished,” leaving Blackmun Ttemplate his own retirement. Yet the house describes how Blackmun’s major- a far lonelier justice than he ever could wrenching centerpiece of Blackmun’s ity opinion “rephrased the rationale for have imagined back in 1970. Only years final years on the Supreme Court was Roe in language that was more directly later, following Burger’s death in 1995, not the jurisprudence of abortion; it was centered on the woman than any of the did Blackmun even come close to voic- the jurisprudence of capital punishment, Court’s previous” abortion rulings. “The ing his feelings about what had hap- with which he had wrestled well before pened. A student law review requested Roe. As Greenhouse explains, “Black- his comments for a memorial volume, mun’s discomfort with the death pen- and Blackmun’s brief response featured alty grew with each passing term” during Class Action none of the usual encomia. “Much al- the 1980s and the early 1990s. In early Give The New Republic to your favorite student. ready has been written . . . about Warren 1993, in a dissent in Herrera v. Collins, Subscribe at www.tnr.com/gift as Chief Justice,” Blackmun observed. Blackmun explicitly questioned whether “Less will be written and said, perhaps, “capital punishment remains constitu- about his contributions to the basic sub- tional at all.” the new republic Ǡ june 27, 2005 41

In Blackmun’s mind, the disqualify- Blackmun changed ‘forward’ to ‘on,’ ing the self-chosen martyrdom of Roe v. ing flaw in the policy of capital punish- but Alexander persuaded him to change Wade, made him an increasingly senti- ment was the glaring possibility that it back. Blackmun changed ‘will’ to mental jurist in his final years. even minimal fairness with regard to ‘shall’ and reversed the word order for Blackmun’s widely mocked declara- which convicted murderers were execut- emphasis: ‘From this day forward, I no tion “Poor Joshua!” in the opening words ed and which were not had proved to be longer shall tinker with the machinery of his dissent about the legal responsibil- hopelessly unattainable. Several months of death.’ ” ity for the abuse of a child of that name later, in August 1993, one of Blackmun’s The words may have been almost in DeShaney v. Winnebago County in outgoing law clerks, Andrew Schapiro, entirely Alexander’s, but the underlying 1989 was, as Greenhouse attests, wholly gave Blackmun a forceful memo advo- repugnance was Blackmun’s own and his own phrase and not the inspiration of cating that in the upcoming term Black- reached back prior to his elevation to the some young clerk. But this exclamation, mun should indeed declare that capital nation’s highest court. As an appeals like his dissent in Callins, marked Black- punishment was inescapably unconstitu- judge in 1968, and as a justice from 1970 mun as a jurist whose empathy for soci- tional. Blackmun gave Schapiro’s memo right up through hundreds and hundreds ety’s least fortunate also betrayed an as- to one of his incoming clerks, Michelle of death row petitions during the 1980s pect of emotional self-indulgence. Roe v. Alexander, who set to work drafting a and early 1990s, Blackmun had always Wade will always remain Harry Black- comprehensive opinion. Greenhouse de- refused to allow his personal sentiments mun’s indelible legacy, but as he himself scribes the importance of Schapiro’s and to trump the limits of the judicial role. would have been the first to admit, a Alexander’s work with little editorial But his years of loneliness on the Su- landmark ruling does not require a great comment. But in one phrase—“reverting preme Court, plus his years of embrac- jurist. Far from it. ½ to his role as law clerk rather than coun- selor”—she does passingly acknowledge just how unusual it was, relative to other CORRESPONDENCE blood libel in the nineteenth-century justices’ practices, for law clerks to play continued from page 4 Ottoman Empire, Schwartz claims that so assertively substantive a role as Scha- my piece wrongly substitutes “three piro and his successor did in their work EFRAIM KARSH RESPONDS: cities in Syria” for “the whole ‘Muslim for Blackmun. Stephen Schwartz charges me with World,’ ” before claiming I neglect their Prior to the end of 1993, no one ex- “accusing all Muslims of . . . [anti- Christian origins. Not only did my New cept Blackmun himself knew how seri- Jewish] bigoted beliefs and behavior.” Republic piece specify that the blood ously he was contemplating that the 1993 I made no such accusation. Rather, libel was imported from Europe, but term would be his last. In a December in- I argued that the representation of the Commentary article shows how the terview with Nina Totenberg, Blackmun Arab anti-Semitism as an offspring of scope far exceeded “three cities in signaled that he soon might have some- the Arab-Israeli conflict “ignores a Syria,” including Aleppo, Antioch, thing notable to say about capital punish- deep anti-Jewish bigotry that dates to Beirut, Damascus, Deir Al Oamar, ment: “I’m not certain at all that it—the Islam’s earliest days and reflects the Homs,Tripoli,Jerusalem,Alexandria, death penalty—can be constitutionally prophet Muhammad’s outrage over Port Said, and Cairo.There is no imposed. I haven’t taken that position the rejection of his religious message denying that the persecution of Jews yet, but I’m getting close to it.” Indeed, by the contemporary Jewish commu- in the Muslim world never reached Alexander was already carefully perus- nity.” But this is not to say that all the scale of Christian Europe. But ing the roster of pending capital cases Muslims are anti-Semites. I might have that did not spare them from centuries with an eye toward finding an ideal one added that both the Koran and later of repression. in which to issue the dissenting opinion biographical traditions of the prophet that she had drafted and polished. By abound with negative depictions of ALIENATION February 1994, she had identified Texas Jews.They are portrayed as an evil have known Representative Tom death row prisoner Bruce Callins, whose and treacherous people who, in their I Tancredo for a long time, but his anti- petition for Supreme Court review the urge for domination, betray allies and immigration crusade is disastrous for justices were poised to deny, as the best swindle non-Jews; they tamper with the Republican Party (“Border Wars,” opportunity, and on February 22 Black- the Holy Scriptures, spurn Allah’s March 28 & April 4). Most Mexican im- mun’s cri de coeur was announced as a divine message, and persecute His migrants embrace traditional values, dissent from his colleagues’ refusal to messenger Muhammad, just as they hard work, education, and entrepre- hear Callins v. Collins. had done to previous prophets like neurship.The GOP should be recruit- Greenhouse delineates clearly, yet Jesus of Nazareth. For this perfidy, ing them, not driving them away. Re- without any explicit criticism, how not they will incur a string of retributions, publicans need only look to the demise only the opinion’s analytical content, both in the afterlife (when they will of California’s GOP to see the conse- but even its signature protestation, was burn in hell) and here on earth quences of nativism. Unfortunately for almost wholly the work of Michelle (where they have been justly con- Republicans in states like Arizona and Alexander, not Harry Blackmun. As demned to an existence of wretched- Texas—states with tremendous immi- Greenhouse writes, “Aside from some ness and humiliation). grant growth—there are no Arnold minor editing, Blackmun accepted near- I raised these issues in the Commen- Schwarzeneggers to save the party ly everything Alexander had written: tary article, from which Schwartz from itself. ‘From this day forward, I will no longer quotes selectively. In an attempt to CLINT BOLICK tinker with the machinery of death.’ downplay the pervasiveness of the Phoenix, Arizona