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The Evolution of a Justice

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  • Ram Lau
    http://nytimes.com/2005/04/10/magazine/10BLACKMUN.html April 10, 2005 The Evolution of a Justice By LINDA GREENHOUSE The battle over abortion, now flaring
    Message 1 of 1 , Apr 10, 2005
      April 10, 2005
      The Evolution of a Justice

      The battle over abortion, now flaring again with the prospect of
      change at the Supreme Court, has been raging for so long that its
      origins have been largely lost to time and myth. During the 32 years
      since the court decided Roe v. Wade, the right to abortion has become
      so entwined, both in political discourse and in the public mind, with
      women's rights in general that it is tempting to assume that the
      middle-aged men who voted in 1973 to overturn state abortion laws
      thought they were striking a blow for women's equality.

      The collected papers of Roe's author, Justice Harry A. Blackmun, show
      a more complicated reality, illuminating what turns out to be a
      highly tenuous connection between the abortion cases and the cases on
      women's equality that reached the Supreme Court simultaneously in the
      early 1970's.

      The Library of Congress, following Blackmun's instructions, opened
      his papers to the public in March of last year, on the fifth
      anniversary of his death. The voluminous files, which occupy more
      than 600 feet on the shelves of the library's manuscript division,
      include not only detailed records of the business the court conducted
      during the 24 years he served there, but also memos and annotations
      that reveal Blackmun's own efforts to grapple with the issues
      presented by the thousands of cases he encountered. The record of his
      personal responses to the briefs and arguments in many of the cases
      indicates a kind of interior monologue that ranged across the court's
      docket. His papers tell an intensely personal story even as they open
      a window on a period of Supreme Court history that is in many ways as
      pertinent today as it was when he and his fellow justices were trying
      to understand and respond to a changing world.

      Named to the court by Richard Nixon, Harry Blackmun took his seat in
      June 1970. Two abortion cases arrived at the court's door in the
      following months: Roe v. Wade, challenging a Texas law that made
      abortion a crime in nearly all instances, and Doe v. Bolton, a case
      from Georgia, where a new ''reform'' law permitted some abortions,
      though under stringent regulations. Federal courts in both states had
      ruled that the Constitution gave women a right to decide whether to
      carry a pregnancy to term.

      For Blackmun, who had spent nine years as general counsel to the Mayo
      Clinic and who held the medical profession in high regard, state laws
      that criminalized abortion were indeed troublesome -- not,
      particularly, because they interfered with the rights of women but
      because they put doctors at risk for using their best judgment in
      treating their pregnant patients. Among Blackmun's files is an
      article from the Mayo alumni magazine by Dr. Jane E. Hodgson, a
      prominent Minnesota obstetrician and Mayo alumna who had been
      prosecuted for performing an abortion on a patient who contracted
      German measles early in pregnancy, a circumstance known to carry a
      high risk of birth defects. ''Someday, abortion will be a humane
      medical service, not a felony,'' Dr. Hodgson boldly predicted.
      Leading medical organizations had recently dropped their longstanding
      opposition to legal abortion and filed briefs with the court
      depicting criminal abortion laws as a threat to public health.

      The degree to which these developments influenced both Blackmun and
      the other members of his 7-to-2 majority in Roe v. Wade is strikingly
      clear from the opinion itself. ''The decision vindicates the right of
      the physician to administer medical treatment according to his
      professional judgment,'' Blackmun wrote in a key summary paragraph.
      To the extent the decision vindicated the rights of women, it was by
      proxy, through their (mostly male) doctors.

      Harry Blackmun served another 21 years on the court after Roe v.
      Wade, retiring in 1994 at the age of 85. By then, he had long since
      become an icon of feminism. Just as he was reviled by opponents of
      abortion, he was treated worshipfully by women's rights groups. Yet
      Blackmun came slowly to the cause of women's equality, and his papers
      show just how improbable an icon he was.

      It was not that Blackmun was hostile to women's rights. He scarcely
      could have been, as the father of three daughters, one of whom
      eventually became a lawyer. When the family lived in Rochester,
      Minn., home of the Mayo Clinic, his wife, Dorothy, was a partner in a
      clothing business called Designing Women. At a time when many men of
      his generation disregarded women's professional accomplishments,
      Blackmun appreciated them. By the time he retired, he had hired more
      female law clerks than the other sitting justices combined, and
      during his last 10 years on the court, a majority of his clerks were

      But when Ruth Bader Ginsburg, who was the director of the American
      Civil Liberties Union's Women's Rights Project in the 1970's, began
      bringing cases to the court as part of a carefully constructed
      litigation campaign, Blackmun was unimpressed. The cases often struck
      him as contrived, with petty claims and overbearing arguments. In one
      of the earliest cases, Reed v. Reed, the court was asked to
      invalidate an Idaho law that gave automatic preference to men over
      women for selection to administer an estate. Ginsburg did not argue
      the case, but she worked on a brief for the appellant, Sally Reed.

      At the time, the court's precedents did not recognize sex
      discrimination as presenting any special constitutional concern; for
      the government to prefer one sex over the other was no more
      problematic than to favor tall people over short or young over old,
      permissible as long as the government could articulate a ''rational
      basis'' for the policy. The so-called rational-basis test,
      instructing judges to give maximum deference to whatever explanation
      the government provided, is scarcely a test at all, because the
      government nearly always prevails.

      Ginsburg's goal was to persuade the Supreme Court to accept a
      different paradigm: to see sex discrimination as analogous to racial
      discrimination and to declare that under the 14th Amendment's
      guarantee of equal protection, official policies that discriminated
      on the basis of sex were presumptively unconstitutional. Under the
      court's precedents, a policy that treats racial groups differently is
      considered ''suspect'' and receives the most searching scrutiny from
      judges -- ''strict scrutiny'' -- and can be upheld only if the
      government demonstrates that it serves a ''compelling state
      interest.'' Policies that receive strict judicial scrutiny are not
      invariably found unconstitutional -- two years ago, the Supreme Court
      accepted the University of Michigan's justification for affirmative
      action in admission to its law school -- but they nearly always are.

      Blackmun was initially skeptical of the challenge to the Idaho
      probate law. ''This case, of course, is a test case and much ado
      about nothing,'' he wrote in a memo to himself before the argument in
      October 1971, noting that the estate in dispute amounted to less than
      $1,000. He described Ginsburg's brief as ''mildly offensive and
      arrogant'' and ''a very lengthy brief filled with emotion and
      historical context about the inferior status of women.'' At 68 pages,
      the brief was indeed longer than most, although not drastically so,
      providing dramatically worded background information for what
      Blackmun saw as ''a very simple little case.'' The Idaho probate code
      commanded the ''subordination of women,'' the brief
      stated. ''American women have been stigmatized historically as an
      inferior class and are today subject to pervasive
      discrimination. . . . A person born female continues to be branded
      inferior for this congenital and unalterable condition of birth.''

      Yet even as he criticized Ginsburg's brief, Blackmun was attentive to
      it; almost despite himself, his response to the case was shaped by
      her presentation, as his memo makes clear. The memo, barely four
      pages long and internally inconsistent in places, shows a judge
      wrestling with his instincts and biases in order to get to the heart
      of a challenging legal problem. ''All in all, I am inclined to feel
      that sex can be considered a suspect classification just as race,''
      he wrote. ''This does not mean that every statute which makes a
      distinction based on sex is automatically invalid. It merely sets as
      the starting point the proposition that such a distinction is suspect
      and strong justification is needed to uphold it. There can be no
      question that women have been held down in the past in almost every

      In the end, Blackmun persuaded himself that the Idaho law was indeed
      unconstitutional. ''We certainly could write a fairly brief and
      simple opinion accomplishing that very result,'' he concluded in his
      memo. ''I would hope that we do not get into a long and emotional
      discussion about women's rights.''

      The court's unanimous decision in Reed v. Reed, in a six-page opinion
      written by Chief Justice Warren E. Burger, reflected little of the
      deeper debate. Idaho's preference for men over women to administer
      estates was arbitrary and unreasonable, the court held. The law
      failed to meet even the rational-basis test, relieving the justices
      of the need to decide whether sex-discrimination claims should be
      evaluated under a more searching standard -- whether sex, like race,
      should be deemed a ''suspect classification,'' presumably
      unconstitutional as a basis for government policy.

      The court was only one front in the struggle for women's rights
      during those years. Congress approved the proposed Equal Rights
      Amendment in 1972 and sent it to the states for ratification. If
      three-quarters of the legislatures ratified it, the amendment would
      accomplish what Ginsburg's brief had asked the court to do in Reed v.
      Reed and make discrimination against women subject to strict judicial
      scrutiny. Soon, the highly charged politics of the amendment and the
      uncertainty within the court about how far and how fast to move the
      law converged in a new case. Frontiero v. Richardson was a suit by an
      Air Force officer for the right to claim her husband as a dependent
      for the purpose of obtaining housing and medical benefits, although
      the husband was not financially dependent on her. Under the laws
      governing military benefits, a serviceman could automatically claim
      his wife as a dependent, regardless of their relative circumstances,
      while a woman could claim her husband only if she brought in more
      than half the family income.

      ''This must be stricken down,'' Blackmun wrote in his notes before
      the January 1973 argument. The question is ''by what route and how
      far.'' That, indeed, was the question: whether to accomplish the
      goals of the Equal Rights Amendment by judicial decree and make its
      ratification unnecessary. The battle inside the court went back and
      forth for weeks. All the justices except William H. Rehnquist agreed
      that the distinction between servicemen and servicewomen was
      unsustainable. Justice William J. Brennan Jr. wanted to use the case
      to establish strict scrutiny, arguing that Reed v. Reed had done so
      implicitly, in its rejection of administrative convenience as an
      acceptable rationale for the state's policy. Burger, who wrote the
      Reed opinion, vigorously disagreed. ''Some may construe Reed as
      supporting the 'suspect' view but I do not,'' he wrote to
      Brennan. ''The author of Reed never remotely contemplated such a
      broad concept, but then a lot of people sire offspring unintended!''

      In the new case, Ginsburg filed a 70-page brief for the A.C.L.U.,
      urging the court to adopt strict scrutiny. James W. Ziglar, one of
      Blackmun's law clerks, found the brief persuasive and urged the
      justice to ''go the whole route and find that sex is a 'suspect
      classification.' '' But Blackmun resisted.

      Roe v. Wade had been decided barely six weeks earlier, but no member
      of the court referred to it as the sex-discrimination debate
      unfolded. ''After some struggle, I have now concluded that it is not
      advisable, and certainly not necessary, for us to reach out in this
      case to hold that sex, like race and national origin and alienage, is
      a suspect classification,'' Blackmun wrote to Brennan. ''It seems to
      me that Reed v. Reed is ample precedent here and is all we need and
      that we should not, by this case, enter the arena of the proposed
      Equal Rights Amendment.''

      Brennan, monitoring the amendment's sagging fortunes, argued that the
      time for the court to act was now. The Equal Rights Amendment had
      already been rejected by 11 state legislatures, he pointed out, and
      two more would be sufficient to kill it. Three other justices,
      William O. Douglas, Byron R. White and Thurgood Marshall, agreed, but
      Brennan could not find a fifth vote for strict scrutiny in the
      Frontiero case. Blackmun concurred only in the judgment that military
      benefits had to be equal, as did Burger, Lewis F. Powell Jr. and
      Potter Stewart. Rehnquist, alone, dissented. So while the court voted
      8 to 1 that the distinction in benefits was unconstitutional, the
      Frontiero decision, issued May 14, 1973, did not establish a new
      standard of review for sex discrimination.

      The next term, the court heard another of Ginsburg's cases, Kahn v.
      Shevin. Representing a male plaintiff this time, Ginsburg was
      challenging a Florida law that gave an annual automatic $500 property-
      tax exemption to widows but not to widowers. The Florida Supreme
      Court had upheld the law, finding that it bore a ''fair and
      substantial relation'' to the goal of reducing ''the disparity
      between the economic capabilities of a man and a woman.'' To a
      majority of the court, including Blackmun, that reasoning seemed to
      produce a sensible outcome. ''Too smart,'' was the comment he wrote
      to himself on Ginsburg's argument; at the same time he gave her
      argument a grade of B, higher than the C he gave her opponent, an
      assistant state attorney general. (Blackmun used various measures
      over the years to grade attorneys' arguments, sometimes giving letter
      grades and sometimes numbers on a variety of scales.)

      Brennan, Marshall and White voted to apply strict scrutiny and
      overturn the Florida law, but Blackmun agreed with Douglas that the
      law was ''reasonably designed to further the state policy of
      cushioning the financial impact of spousal loss upon the sex for whom
      that loss imposes a disproportionately heavy burden,'' as Douglas
      wrote in the almost cursory four-page opinion the court issued in
      April 1974. Before signing on to the final draft of the opinion,
      Blackmun objected to a footnote that contained an oblique and, in
      Blackmun's mind, gratuitous reference of Roe v. Wade. Defending his
      rejection of strict scrutiny, Douglas tried to show that there was
      nothing in Roe v. Wade that required it; that decision was about
      women as potential mothers, not women versus men, he
      maintained. ''Gender has never been rejected as an impermissible
      classification in all instances,'' Douglas wrote in his draft opinion
      in the new case. ''When we had before us Roe v. Wade, the court
      proceeded to treat the abortion problem on the basis that it
      pertained to the prerogative of the mother in which the putative
      father had no concern.''

      Blackmun was ''somewhat disturbed'' by the reference, he told
      Douglas, because in Roe itself, the court had explicitly deferred
      consideration of whether fathers had any rights in the abortion
      context. Douglas's reference was ''not consistent'' with the court's
      decision to avoid the issue, Blackmun said. Douglas responded that
      Blackmun's point was ''very well taken'' and removed the reference.

      That it took 14 months after Roe v. Wade for any mention of abortion
      to seep into the court's evolving conversation about sex
      discrimination showed how unrelated the two subjects appeared to the
      justices. Blackmun and the other justices were extremely reluctant to
      place a label of sex discrimination even on a policy that involved
      pregnancy -- mandatory unpaid leaves for public schoolteachers before
      their pregnancies began to ''show'' -- and which struck most of them
      as troubling and unfair. ''It is easy to say initially that any
      regulation which relates to pregnancy is automatically and per se sex
      discriminatory,'' Blackmun wrote in his memo before the argument in
      Cleveland Board of Education v. LaFleur, decided in January 1974. ''I
      am not at all certain that this is necessarily so. Actually, what the
      regulation does is to draw distinctions between classes of women,
      that is, those who are pregnant and those who are not pregnant,
      rather than between male and female.'' Similarly, an Army regulation
      prohibiting beards, he noted, could not be viewed as sex
      discrimination, because it applied to only men. At the top of this
      typewritten memo, Blackmun added a handwritten note: ''N[ot] sex
      related.'' He eventually joined Potter Stewart's majority opinion
      that invalidated the mandatory-leave policy on the basis of due
      process -- that forcing a woman to stop working by her fifth month of
      pregnancy was ''arbitrary'' -- rather than equal protection; the
      word ''discrimination'' did not appear in Stewart's opinion.

      Two years later, the deferred question that Blackmun had discussed
      with Douglas, whether a state could give a man veto power over his
      wife's decision to have an abortion, reached the court in Planned
      Parenthood of Central Missouri v. Danforth. Blackmun wrote the
      majority opinion finding a husband's veto unconstitutional, but his
      tone was detached. Preparing for the argument, he read a brief that
      framed the issue in overtly feminist terms, and his memo disparaged
      the presentation. ''This brief, of course, presents the extreme on
      the female side,'' he wrote to himself. The court's abortion and sex-
      discrimination cases were still running on their parallel tracks.

      Ginsburg was back before the court in the 1975 term, in Weinberger v.
      Wiesenfeld, a challenge to a provision of the Social Security Act
      that made still another distinction between men and women in
      calculating government benefits. If a male wage earner died, both his
      widow and their minor children would receive benefits. But if the
      wage earner was a woman, benefits would go only to her children and
      not her husband. The difference was based on the government's
      assumption that a father was more likely to be a family's breadwinner
      and would not need the support of his wife's Social Security
      benefits. Ginsburg's client, Stephen C. Wiesenfeld, was a self-
      employed consultant whose wife, a schoolteacher, provided most of the
      couple's income. She died in childbirth, and he was told that while
      their newborn son was eligible for benefits, he was not.

      The case initially struck Blackmun as little different from Kahn v.
      Shevin, in which the court recently upheld Florida's preferential tax
      exemption and rejected Ginsburg's argument on behalf of her male
      client. In his memo, Blackmun said the premise behind the federal law
      was sound. Change should come from Congress, not the court. ''That is
      where it belongs really if changing times are equalizing income as
      between men and women. . . . So long as the objective of the
      differential is to alleviate need, I suspect that we shall have to
      hold that the differential is not unconstitutional.'' His law clerk,
      Richard Blumenthal, agreed, observing to Blackmun that ''women are
      more likely to be needy, even in this increasingly liberated age.''

      But as Blackmun listened to Ginsburg, he began to change his
      mind. ''It is a good clean case, factually,'' he noted to himself
      during the argument, and the distinction the law made
      appeared ''useless.'' He gave Ginsburg a B. After initially voting to
      uphold the law, he eventually joined Brennan's majority opinion that
      found the sex-based distinction ''entirely irrational.''

      Even so, Blackmun retained his skepticism. In November 1980, in
      anticipation that a woman might join their ranks someday, the
      justices voted to drop the traditional ''Mr. Justice'' in formal
      court papers. Blackmun made his objections known within the
      court. ''We seem to be eliminating, step by step, all aspects of
      diverseness, and we give impetus to the trend toward a colorless
      society,'' he wrote to his colleagues in protest. Ten months later,
      Sandra Day O'Connor did join the court. It was far from clear what
      difference she might make on the issue of sex discrimination.
      O'Connor had not presented herself as a feminist, and Blackmun did
      not expect her to be one. The first test came in her first term, when
      the court accepted a challenge to the constitutionality of a state-
      supported single-sex college, the Mississippi University for Women.

      Joe Hogan, who was denied admission to the university's nursing
      school, sued and won a ruling from the federal appeals court in New
      Orleans that his exclusion was unconstitutional. The university
      appealed. One of Blackmun's law clerks, Kit Kinports, urged him to
      vote to affirm the decision. ''The opinion need not be a sweeping
      one,'' she wrote reassuringly. There would be ''very little practical
      impact'' because there were only two other single-sex state
      universities in the country. Blackmun was unpersuaded. He would vote
      to reverse ''despite my clerks,'' he wrote in his memo before the
      argument in March 1982. The state's defense of its women-only program
      sounded plausible. ''I am not qualified to say single-sex situation
      cannot be educationally sound,'' he noted.

      During the arguments in Mississippi University for Women v. Hogan,
      Blackmun jotted down his prediction that O'Connor would join him in a
      vote to reverse. But he was wrong. At the conference, the justices
      were closely divided. O'Connor, Brennan, White, Marshall and John
      Paul Stevens voted to affirm, while Blackmun, Burger, Powell, and
      Rehnquist voted to reverse. The case engaged the court on an
      emotional level that had been missing from the cases parsing the
      finer points of Social Security law. ''We all belong to all-male
      organizations,'' Burger observed during the conference, according to
      Blackmun's notes. Powell, who had graduated from Washington and Lee
      University when it was all-male, said that ''all Powells have gone to
      single-sex schools.'' They were ''perfectly legitimate,'' he said.

      Assigned by Brennan to write the majority opinion, O'Connor
      circulated a draft that emphasized the anachronistic nature of the
      university's stated mission, to train ''the girls of the state'' for
      the ''practical affairs of life.'' Excluding men from the nursing
      program ''tends to perpetuate the stereotyped view of nursing as an
      exclusively woman's job'' and makes that view a ''self-fulfilling
      prophecy,'' O'Connor wrote. Kinports, Blackmun's clerk, urged him to
      join O'Connor's ''persuasive, analytical and exceedingly narrow
      opinion,'' but he held firm. His dissenting opinion warned
      against ''needless conformity'' in the name of equality. ''I have
      come to suspect that it is easy to go too far with rigid rules in
      this area of claimed sex discrimination, and to lose -- indeed
      destroy -- values that mean much to some people by forbidding the
      State to offer them a choice while not depriving others of an
      alternative choice.''

      Sandra Day O'connor surprised Blackmun in the Mississippi case, but
      there was a bigger challenge to come: her vote the next year in her
      first abortion case, Akron v. Akron Center for Reproductive Health.
      O'Connor dissented from a 6-to-3 majority decision that struck down a
      package of regulations that Akron, Ohio, had adopted to discourage
      abortions. The majority held that the regulations, including a 24-
      hour waiting period, were inconsistent with Roe v. Wade. O'Connor's
      dissenting opinion not only disputed that conclusion, but also took
      issue with Roe v. Wade itself. Predicting that the date of fetal
      viability would move ever closer toward the beginning of a pregnancy,
      she proclaimed Roe's analytic framework to be ''clearly on a
      collision course with itself.'' Abortion restrictions should be
      upheld, O'Connor wrote, as long as they did not present an ''undue
      burden,'' a standard that would strip the right to abortion of its
      status as ''fundamental.''

      Just past its 10th anniversary, Roe was in trouble. And it was in the
      course of protecting Roe that Blackmun began to see himself as
      protecting the rights of women.

      A series of decisions on whether poor women were entitled to publicly
      financed abortions had already served to shift Blackmun's focus. He
      had argued, unsuccessfully, that the government's refusal to pay for
      abortions for poor women was an indirect circumvention of Roe v. Wade
      that the court should not permit. His concern in these cases was not
      doctors, but women -- poor, pregnant, alone, in need. In Thornburgh
      v. American College of Obstetricians and Gynecologists, in 1986, the
      justices voted by only a 5-to-4 majority to strike down a series of
      anti-abortion regulations from Pennsylvania. As the Roe majority
      shrank, with Burger having defected and O'Connor having joined the
      court, Blackmun's previously clinical tone was replaced by something
      close to passion. Blackmun's majority opinion bore little resemblance
      to the doctor-centric tone of Roe v. Wade. ''Few decisions are more
      personal and intimate, more properly private or more basic to
      individual dignity and autonomy,'' he wrote, than a woman's decision
      to terminate her pregnancy.

      By 1989, when the court in Webster v. Reproductive Health Services
      upheld a series of anti-abortion regulations in a Missouri statute,
      Blackmun was in dissent. Now, as he contemplated the prospect that
      Roe itself would soon be overturned, his entire focus was on
      women. ''I fear for the liberty and equality of the millions of women
      who have lived and come of age in the 16 years since Roe was
      decided,'' he wrote. For Blackmun, the abortion and sex-
      discrimination cases, having run on parallel tracks for years, were
      about to converge in the embrace of reproductive freedom as an
      essential aspect of women's equality.

      In 1992, the court finally confronted Roe directly in Planned
      Parenthood of Southeastern Pennsylvania v. Casey. At issue was a
      Pennsylvania law that imposed a series of abortion regulations,
      similar to those in other recent cases. The Webster case three years
      earlier indicated that these were likely to be upheld. Further, two
      of Roe's strongest supporters, Justices Brennan and Marshall, had
      retired since the Webster decision, succeeded by David H. Souter and
      Clarence Thomas. Planned Parenthood v. Casey was argued in April
      1992. As the country waited for an answer from the court and with a
      presidential campaign well under way, advocates on both sides gave
      Roe little prospect of surviving. But it did, with the crucial
      participation of three Republican-appointed justices: Souter, Anthony
      M. Kennedy and Sandra Day O'Connor. They had considered the question,
      the three wrote in an unusual joint opinion, and had concluded
      that ''the essential holding of Roe v. Wade should be retained and
      once again reaffirmed.'' With Blackmun and John Paul Stevens
      concurring separately, that meant five votes for the right to
      abortion. Blackmun's opinion read like a women's rights manifesto:

      A State's restrictions on a woman's right to terminate her pregnancy
      also implicate constitutional guarantees of gender equality. State
      restrictions on abortion compel women to continue pregnancies they
      otherwise might terminate. By restricting the right to terminate
      pregnancies, the State conscripts women's bodies into its
      service. . . . The State does not compensate women for their
      services; instead, it assumes that they owe this duty as a matter of
      course. This assumption -- that women can simply be forced to accept
      the ''natural'' status and incidents of motherhood -- appears to rest
      upon a conception of women's role that has triggered the protection
      of the Equal Protection Clause.

      And then Blackmun did something remarkable. He cited Mississippi
      University for Women v. Hogan, O'Connor's opinion on single-sex
      education that had provoked his heartfelt dissent 10 years before.
      The convergence was complete.

      Ruth Bader Ginsburg joined the court the next year. Blackmun was
      wary. Ginsburg had criticized Roe -- its analysis, not its outcome --
      in a highly publicized lecture in which she asserted that the court
      had moved too far and too fast in issuing a decision and that ''a
      less encompassing Roe'' might have ultimately done more to promote
      abortion rights. Further, she and Justice Antonin Scalia, Roe's most
      outspoken critic on the court, were known to be friends from their
      years together as Court of Appeals judges. ''Can she stand up to
      A.S.?'' Blackmun noted to himself after her nomination.

      But Ginsburg's first term -- which proved to be Blackmun's last --
      demonstrated that she was not about to temper her views to Scalia's
      liking. The court accepted J.E.B. v. Alabama, a case on whether the
      Constitution permitted lawyers to strike potential jurors on the
      basis of sex. Eight years earlier, the court barred race as a factor
      in jury selection. Applying the same principle to sex
      was ''inevitable,'' Blackmun wrote in his memo before the argument in
      November 1993. The conference discussion after the argument was
      lively, with Scalia particularly energized. To bar the use of sex in
      jury selection would be a ''terrible thing,'' he said, the ''most
      radical decision in 30 years.'' The vote to extend the race-
      discrimination precedent to sex was 6 to 3, with Scalia, Rehnquist
      and Thomas in dissent. As the senior associate justice, Blackmun had
      the power to assign opinions when the chief justice was in dissent.
      He assigned this case to himself.

      His opinion traced the history of the court system's discrimination
      against women, citing four of the cases Ginsburg had brought to the
      Supreme Court. His draft included a footnote on whether claims of sex
      discrimination should be subject to strict judicial scrutiny;
      although it was not necessary to decide that question in this case,
      because sex-based jury selection could not be sustained even under a
      lower standard, the strict-scrutiny question remained open for future
      cases. The footnote was a bouquet to his new colleague -- offering
      the prospect that the battle she had lost so long ago might be won
      yet -- and Ginsburg understood it as such. ''I am pleased to join
      your opinion and particularly appreciate footnote 6,'' she wrote to

      In an angry dissent, Scalia accused the majority of adopting
      a ''unisex creed,'' of obscuring its reasoning behind ''anti-male-
      chauvinist oratory'' in order to ''pay conspicuous obeisance to the
      equality of the sexes.'' Sandra Day O'Connor joined Blackmun's
      opinion and filed a separate concurring opinion as well. Ruth
      Ginsburg said nothing. She had no need to. Harry Blackmun had,
      finally and improbably, spoken for her.

      Linda Greenhouse covers the Supreme Court for The New York Times.
      This article is adapted from her book, ''Becoming Justice Blackmun:
      Harry Blackmun's Supreme Court Journey,'' to be published next month
      by Times Books/Henry Holt & Company.
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