Meserve, Richard A

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North Dakota Law Review Volume 71 Number 1 Article 5 1995 A Tribute to Justice Harry A. Blackmun Richard A. Meserve Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Meserve, Richard A. (1995) "A Tribute to Justice Harry A. Blackmun," North Dakota Law Review: Vol. 71 : No. 1 , Article 5. Available at: https://commons.und.edu/ndlr/vol71/iss1/5 This Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. A TRIBUTE TO JUSTICE HARRY A. BLACKMUN*RICHARD A. MESERVE**Much ... discussion ... has focused on the Justice Blackmun thatis revealed by his many contributions to the United States Reports. Thisapproach is an entirely appropriate means by which to take the Justice'smeasure. At core, however, I think that all of us are also interested in theman who lies behind the decisions. I will take a different approach intrying to reveal him.Like [others], I served as Justice Blackmun's clerk. As a result, Ihave had the good fortune to know the person behind those decisions.As our morning papers often reveal, the private side of prominentfigures is often different from the public image. In the case of JusticeBlackmun, however, the public and private sides reinforce each other.The Justice's clerks are fond of him and are loyal to him because in-creasing exposure in fact serves to enhance the respect-even awe-inwhich we hold him.I first met the Justice at my interview as a prospective clerk. Iexpected to be confronted by a stern figure who would probe at myknowledge of the legal issues confronting the Court or who, heavenforbid, would even ask some pointed questions about tax law. Instead, Iwas met by a friendly man, clad in a cardigan sweater I recall, whoseemed to view the interview as an opportunity to reassure and relax me.I do not recall any questions that focused on my legal knowledge,although I suspect in retrospect that the Justice learned far more aboutme than I realized at the time. Instead, much of the interview reflectedhis concern that a clerk's work load might intrude unduly on my familylife. The Justice knew that I had young children and he wanted to besure that I fully considered all the disadvantages of assuming a clerkship.The incongruity of the situation has often struck me: I was beinginterviewed for the most fascinating legal position available to a younglawyer, and the Justice seemed to be discouraging me from consideringthe job. With the wisdom of increased years, I now understand thatJustice Blackmun was seeking to assure that important things-such asthe impact of the clerkship on the lives of those around his clerks-hadbeen adequately evaluated.Perhaps one recurring event is a central feature of every clerk'smemory of his or her experiences in the Justice's chambers. It is not the* Reprinted with permission from the Dickinson Law Review. 97 DIcK. L. REv. 601 (1993).Minor alterations from the original article are delineated by brackets and ellipses.** Partner, Covington & Burling, Washington, DC. The author is indebted to several formerclerks who have contributed anecdotes concerning the Justice.NORTH DAKOTA LAW REVIEWtriumphant majority opinions or the biting dissents-it is breakfast.Shortly after 8:00 a.m. each morning, the Justice would collect his clerksand shepherd them down the stairway to the Court's cafeteria. TheJustice invariabl[y] ordered the same breakfast: one scrambled egg,juice, coffee, and-his one luxury-raisin toast. We would then engagein quiet banter until returning to the office to start the day's work.I often think back on the breadth and warmth of those morningconversations. Some mornings we would discuss the Court's work.Sometimes the Justice would announce with wry bemusement, even glee,that he was "in the doghouse with the Chief' over a particular decision.Sometimes he would chuckle over some development relating to theCourt's personnel. Often, however, the conversation focused on otherthings: the morning's headlines, baseball, or personal matters-wives,children, parents, hometowns. I am amazed that the Justice still remem-bers many of the personal facts. He often inquires about parents orchildren or other interests that he learned about over raisin toast.The Justice's concern for people is not limited to his clerks. Oneday, a distinguished gentleman appeared at the breakfast table andannounced that he was a district judge from a distant part of the country.Justice Blackmun did not know the judge, but asked if he would join us.The Justice started a discussion with the judge about his home state whenthe Justice noticed that a younger man was standing near the table. Thejudge saw the Justice's concern and stated that the man was a federalmarshall who had accompanied him to Washington. The Justice stoodup, went over to the marshall, put out his hand and said, "Hello, I'mHarry Blackmun. Please join us." The Justice pulled up a chair andheld it for the marshall as he sat down. A smile crossed the marshall'sface as he introduced himself and responded to questions about hishome and job.Others . . . have observed that the practical evaluation of the real-world impact of the Court's actions is a hallmark of the Justice's opin-ions. I believe this characteristic stems from the fact that JusticeBlackmun is a person who truly cares about the "little people." As myanecdotes reveal, this care is reflected not only in his approach to theCourt's work, but also in the way the Justice deals with people he encoun-ters in everyday life.The Justice's concern for the consequences of the Court's decisionsis perhaps most poignantly revealed by a careful examination of hisoffice. On one wall near the stand-up writing desk at which he occasion-ally works, the Justice has hung an inconspicuous, but very unusualcertificate of sale. On February 21, 1853, one S.E. Cotterliss of SouthCarolina paid $625 to become the owner of a 12-year-old black child[VOL. 71:21A TRBUTE TO JUSTICE BLACKMUNnamed Titus. The wall for the most part includes a display of photo-graphs and plaques bearing on the [J]ustice's own life. We all mightwonder at that certificate and at its placement on the wall. It might serveas a simple and constant reminder of the obligation to protect the weakand the disfavored. It might also serve to remind the Justice to considerthe personal implications of his decisions. It must be remembered thatthe sale of Titus was protected by the Supreme Court at the time. Thatbill of sale must serve as a constant reminder to look beyond contempo-rary societal conventions so as to assure that the promise of equal justiceunder law is, in fact, achieved .... [T]he Justice's opinions have amplydemonstrated his efforts to fulfill that obligation.The Justice's concern for the practical impacts of the Court's deci-sions is also reflected in the work that goes on behind the scenes. EveryTerm, the Court considers thousands of petitions for certiorari. JusticeBlackmun reads them all. Moreover, every petition is analyzed by theclerks in memoranda-called "pool memos"-and the collection ofmemos from past years is preserved in chambers. The clerks on occa-sion find it necessary to review the analyses of prior petitions on asimilar subject or to check the pool memo arising from an earlierincarnation of the case. The memos are invariably filled with etchings inthe fine-pointed pencil of the Justice: cryptic symbols in the margins,words underlined, little question marks, and notes to himself. Often thenotes reveal that the Justice has detected aspects of the petition that hadescaped the clerks or the parties. The notations prove that, although thepetition may not have been of a significance that warranted discussion atthe Court's conference, the Justice had carefully and probingly scru-tinized the case.I think back on those memos with considerable amazement. TheJustice must have read many tens of thousands of petitions, briefs, benchmemos, pool memos and other papers related to the Court's work. Giventhe enormous volume, it is perhaps easy to assume that many of thesepapers must have been given only hasty scrutiny. In the case of at leastone Justice, however, the words "cert. denied" do not serve as a casualor thoughtless response. There is a Justice who has read the paperscarefully and has sought to assure that each case has been given anappropriate disposition.I do not believe that anyone other than his clerks can fully appreci-ate the prodigious workload that the Justice cheerfully bears. JusticeBlackmun always put in a long day in chambers. But, before leaving inthe evening, the Justice would usually stick his head through the door tothe office shared by the clerks. Invariably he would say, "Well, I guessI'll desert you now." The comment would bring smiles to the clerks,1995]NORTH DAKOTA LAW REVIEWbecause we knew the Justice's day was far from over. He obviouslyworked late into the night because each morning before breakfast, hewould deposit a stack of materials, each meticulously annotated, on thedesk. The claim that the Justice was deserting us was never a realconcern. Our concern was keeping up with the pace that he set.I think that everyone who meets the Justice is struck by his genuinemodesty and humility. Although he has a position at the pinnacle ofgovernmental power, his status does not seem to affect his image ofhimself. He has remained a quiet, self-effacing person who perhaps doesnot recognize his own importance. Let me give you a simple example.After lunch on pleasant days, a familiar slight figure in that same cardi-gan sweater often walks the block around the Court building. Notinfrequently, as the walker passes the front steps of the building, touristsstop him and ask him to take their picture with the Court as a backdrop.He cheerfully takes instructions on operating the camera and then, taskperformed, proceeds on his walk. The tourists are none the wiser as towho has served as their photographer. And it does not occur to the manin the cardigan that he is too busy or too important to lend a helpinghand.The Justice's mild manner, however, can be deceptive. There is asignificant measure of steel inside this man; he will not bend on impor-tant matters of principle. Indeed, the Justice has demonstrated hiscourage in protecting important rights-an aspect of his nature aboutwhich his clerks only slowly become aware. Each day the Justice re-ceives a volume of mail attacking him for his decisions on abortionmatters. He does not share that mail with his clerks. But, he reads it all.He is reminded on a daily basis of the irrational hatred that is provokedby his brave stand on behalf of personal rights. Justice Blackmun is asensitive man and it is hard to imagine the personal toll that is exacted bythis unremitting onslaught. Nonetheless, he has not wavered in hisstudied and careful response. He is the conscience of the Court-per-haps of America-on this issue. Too few people recognize the extent towhich he has sacrificed his personal privacy to protect a constitutionalzone of privacy for others.History will show that Justice Blackmun is a far different and moresignificant figure than the "Minnesota Twin" that was predicted uponhis confirmation. Harry A. Blackmun deserves our tribute as a greatSupreme Court Justice. As one who has had the good fortune to knowhim personally, I can say that he also deserves our tribute as a magnifi-cent human being.[VOL. 71:21

A Tribute to Justice Harry A. Blackmun

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A Tribute to Justice Harry A. Blackmun

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