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Taking Note: Justice Harry A. Blackmun's Observations from Oral Taking Note: Justice Harry A. Blackmun’s Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court AMANDA C. BRYAN, RACHAEL HOUSTON, and TIMOTHY R. JOHNSON Introduction Thus, while Blackmun took his (usual) notes on Christopher Wright’s arguments for On November 4, 1992, the U.S. Supreme the federal government, Blackmun’s mind, Court heard oral arguments in Bath Iron and his pencil, wandered to how his life might Works v. Workers’ Compensation Programs.1 quickly change. Writing in his characteristic As attorneys presented their arguments, Jus- green pencil, he mused about the implica- tice Harry A. Blackmun, like the entire tions of the election, “What do I do now. nation, had a lot on his mind because the [R]etire at once, 6/30/93, 6/30/94.” He added, night before William Jefferson Clinton had perhaps nostalgically, “33 years ago today, I been elected the first Democratic President in went on the fed bench! Seems like yesterday. twelve years. While the political implications What a privileged experience!” of the Clinton victory would be undoubtedly We know what was going on in Black- vast, Blackmun was more concerned with mun’s mind that day only because he was a how it would affect him personally. It was just habitual note-taker. In fact, as he did in Bath days until Blackmun’s eighty-fourth birthday, Iron Works, in almost every case Blackmun and it suddenly seemed viable for him to took copious notes about what transpired depart and allow the new President to make a during oral arguments. As Linda Greenhouse politically and ideologically suitable replace- wrote in Becoming Justice Blackmun, he ment. seemed to keep these notes out of “an HARRY A. BLACKMUN’S NOTES AND OBSERVATIONS 45 Figure 1. Harry A. Blackmun’s oral argument notes in Bath Iron Workers vs. Workers’ Compensation Programs (1993) impulse to order [his] world … It was a Blackmun also wrote in green pencil to indi- deep impulse that reappeared throughout his cate comments outside of the legal and policy long life.”2 While his notes (written with substance of the arguments themselves, in- a traditional gray graphite pencil) focused cluding his musings about politics, personal mainly on the substance of the arguments,3 life, and a plethora of other thoughts that 46 JOURNAL OF SUPREME COURT HISTORY occurred to him while the attorneys argued notes as well) to better understand Black- their cases. mun’s assessment of the arguments presented Blackmun’s oral argument notes con- to the Court; we do so to determine whether tinue to be a treasure trove for scholars,4 these arguments were persuasive to him and Court watchers,5 and interested citizens.6 his colleagues and to detail how he thought However, his “green notes,” the name we his colleagues would decide each case. From have given to these more personal reflections, there, we turn more specifically to what have been paid far less attention. Our goal Blackmun’s green notes teach us about the is to provide a better understanding of them Court’s oral arguments, its inner workings, while also providing readers with insights the dynamics between the Justices on the about the gray notes. Both are of particular Burger and Rehnquist Courts, and American interest for several reasons. cultural and political history.7 Finally, we First, they offer a rare glimpse of the utilize Blackmun’s notes as evidence that the world through the eyes of a Justice who Justices, while certainly the top legal minds sat on the Court through some of its (and in the nation, are not particularly different the nation’s) most interesting and tumultuous from typical U.S. citizens. For instance, while years of the late twentieth century. Indeed, listening to arguments, Blackmun sometimes Blackmun’s personal insights are one of the thought about his favorite baseball team (the only opportunities scholars have ever had to Minnesota Twins), entertained himself and peek into the mind of a U.S. Supreme Court his colleagues by playing games on his note Justice and, as such, they open the Court in a paper, and reflected about his health and way our least publicly observable institution impending retirement. These are insights we has not yet been open. Second, these notes believe serve to humanize Blackmun and his add to our understanding of how Justices colleagues in an important way. Indeed, law reach decisions. For decades, scholars have is made by actual humans who possess fears, used Court outcomes (who wins, who loses, concerns, hobbies, and interests. Blackmun’s and why) to infer the factors that influence notes therefore help us understand the human Justices’ decisions, particularly their motives side of the Marble Palace. that are the quintessential black box of the Before completing these related anal- decision-making processes. In a sense, then, yses, however, we begin by highlighting Blackmun’s notes allow us to open that box to the general historical period during which explore his motivations. Third, the notes add Blackmun built his legacy, from the history a dimension to scholarly understanding of he lived through beyond the Court to the the Court in a way that even most historians transformations he witnessed within the wall cannot provide because these insights come, of the nation’s highest court. quite literally, from Blackmun’s own hand as he watched law, politics, and history develop Justice Blackmun: Witness to History around him over the nearly quarter century he Within and Beyond the Marble Palace sat on the bench. In the crux of the article we utilize While Justice Blackmun will always be Blackmun’s oral argument notes to elucidate remembered for his abortion jurisprudence,8 how he viewed the courtroom proceedings he has left a much less appreciated legacy as unfolding in front of him, including his a keen observer and record taker. His archival assessment of the attorneys who appeared papers, publicly available at the Library of before the Court and his insights about his Congress, provide a wealth of insight into colleagues’ behavior. We first explore his life, law, and the inner workings of the U.S. graphite notes (although sometimes his green Supreme Court.9 For more than fifteen years, HARRY A. BLACKMUN’S NOTES AND OBSERVATIONS 47 now, they have been an invaluable source of Court’s long-standing obscenity standard,13 data and information that have enriched how campaign finance,14 and the death penalty.15 political scientists, legal scholars, and histo- Beyond legal changes, Blackmun wit- rians understand the inner workings of the nessed considerable ideological transforma- Court. Our goal in this section is not to pro- tion on the bench and he often took notes vide a comprehensive recap of Blackmun’s about these dramatic shifts. During his first life but, rather, to highlight the extraordinary five terms, he watched the retirements of Jus- events that took place within and outside the tices Hugo L. Black and William O. Douglas, Court during his twenty-four years on the the final remaining New Deal appointees of bench. President Franklin D. Roosevelt. As Douglas Blackmun’s tenure from 1970 to 1994 and Blackmun sat together in the Courtroom was a time of great international tumult for during their final day as colleagues and the United States. He joined the bench several for Douglas’s final oral argument, Blackmun years before the end of the Vietnam War wrote, “WOD retires today.”16 He then added, and stayed long enough to witness the first “My last day on this seat,”17 meaning that Persian Gulf War. He also had a front row he would be moving to a new seat closer seat to the end of the Cold War and ultimate to the center of the bench because more downfall of the U.S.S.R. Thus, his years on senior Justices sit nearer the center while new the bench were a time of important and Justices sit nearer the wings.18 transformative foreign policy for the United After Black and Douglas retired, only States. two of the Court’s stalwart liberals remained, Domestically, Blackmun sat on the High Justices William J. Brennan and Thurgood Court through six presidential elections, in- Marshall. Blackmun also remarked when cluding the reelection of the President who Douglas’s replacement, John Paul Stevens, appointed him and the election of the Pres- joined the bench. As he sat for Stevens’s first ident who would ultimately replace him. In argument just two months after Douglas’s addition, he watched as scandal led to the departure on January 12, 1976, Blackmun resignation of Vice President Spiro Agnew wrote, “January 1976 Session. JPS #1.”19 and as Watergate led to the resignation of This nomination was particularly important several Attorneys General and ultimately to because, while a Republican President (Ger- the downfall of President Richard Nixon. ald Ford) nominated Stevens, Stevens, like Closer to his own bailiwick, Blackmun was Blackmun, moved well to the ideological left front and center for two of the most hotly during his long tenure on the bench.20 contested Supreme Court nomination battles Maybe more important than Stevens’s in U.S. history: those of Judge Robert Bork nomination was President Reagan’s first and Justice Clarence Thomas. nomination just six years later. In 1981, Inside the Marble Palace, Blackmun ob- Blackmun watched as the first woman, Jus- served a number of historically significant tice Sandra Day O’Connor, donned the black developments in the law, transformations robe. Oddly, despite Blackmun’s penchant of personnel on the bench, and changes for noting historically significant events, he in relationships among his colleagues.
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