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Blackmun's Constitution

The former Supreme Court justice's records shed new light on Roe v. Wade.

11:00 PM, Mar 10, 2004 • By TERRY EASTLAND
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THE LIBRARY OF CONGRESS has just made public the accumulated papers of the late Supreme Court Justice Harry Blackmun, who served from 1971 to 1994. More than a half-million items fill 1,576 boxes. For obvious reasons, the papers on the abortion cases are likely to draw the most interest.

The first case was Roe v. Wade, which arose from Dallas and was decided in 1973, Justice Blackmun's second year on the court. Justice Blackmun wrote the majority opinion declaring a constitutional right of privacy "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The opinion quickly drew criticism from both conservative and liberal scholars, its most evident shortcoming being the failure to identify where the abortion right actually is located in the text of the Constitution. Of course, the ostensible right didn't reside there, nor was it to be found in constitutional history. It had to be forced into our fundamental charter.

The Blackmun papers reveal a jurist prepared to do the necessary forcing. Before the argument in Roe, he wrote to himself: "I may have to push myself a bit, but I would not be offended by the extension of privacy concepts [from recent precedents] to the point presented in the present case."

After the justices met in their private conference to decide Roe, Justice Blackmun wrote--again to himself--that "a majority of state statutes [will] go down the drain."

You might think a decision of such sweeping magnitude for state legislative authority might have given Justice Blackmun pause. But, apparently, it didn't. Justice Blackmun noted that there would be an "unsettled period" but that it would be short, since "most state legislatures will be meeting in '73."

As we know, Roe v. Wade didn't lead to a short season of legislative fixes. The decision, which voided the abortion laws of no fewer than 46 states, ignited from coast to coast a moral and political battle that continues to this day. And it affected Justice Blackmun.

In an oral history conducted by a former law clerk, the justice said Roe was "a liberating experience" for him, and he spoke as to how he had needed "to grow a little." Justice Blackmun grew in a liberal direction during his tenure, going so far as to say the death penalty is unconstitutional, notwithstanding its explicit sanction in the text of the Constitution.

Shortly before he retired, Justice Blackmun witnessed the "growth" of another justice. It came in Planned Parenthood v. Casey in 1992, the third in a series of cases in which the Reagan and Bush administrations had asked the court, in reviewing state abortion restrictions, to overrule Roe.

The case was argued in April 1992, and five justices voted in their private conference to sustain the regulations. Chief Justice William Rehnquist circulated an opinion that effectively would have overruled Roe. A despairing Justice Blackmun was preparing a dissent when a note from one of the justices in the Rehnquist majority, Anthony Kennedy, arrived at his chambers.

"Dear Harry," begins the note, which Justice Blackmun kept among his papers, "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news."

Justice Kennedy's "news" was that he had decided to switch sides and support Roe. In a joint opinion with Justices David Souter and Sandra Day O'Connor, Justice Kennedy offered in support of the abortion right a view of liberty that lacks constitutional rooting and is so broad as to call into question any legislation based on traditional morality.

Kennedy happens to be the justice who, extending his Casey opinion, wrote for the court last summer when it found that Texas' sodomy law was a violation of a right to sexual liberty. Texas v. Lawrence, duly quoted by the Massachusetts Supreme Judicial Court in its decision to impose same-sex marriage on the Bay State, surely will continue to fuel our latest culture war.

You might have thought that Justice Kennedy would have learned something about the virtue of judicial restraint that Roe teaches by negative example. Some distant day, when Justice Kennedy's papers are released, perhaps we will learn more about why he followed Justice Blackmun's ill-chosen path--why he used a methodology of judging that runs roughshod over the Constitution.

Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.