Early in the spring of 1992, some five months after the U.S. Supreme Court heard oral arguments in a case about clergy-led prayers at public school graduation ceremonies, Justice Harry A. Blackmun received a surprising memorandum.
|See the accompanying graphic, “Change of Heart.”
Justice Anthony M. Kennedy had been drafting an opinion for a five-justice majority of the court in Lee v. Weisman that would overturn two lower federal courts and rule that such prayers were constitutional. But now, Justice Kennedy was having a change of heart.
“After writing to reverse in the high school graduation-prayer case, my draft looked quite wrong,” he wrote to Justice Blackmun on March 30 of that year. “So I have written it to rule in favor of the objecting student, both at middle school and high school exercises.”
The memo is one of the most revealing among the thousands of personal papers of the late Justice Blackmun, who retired from the court in 1994 and died in 1999. He specified that the Library of Congress could open his collection to the public five years after his death.
It is the first new trove of Supreme Court internal documents since the late Justice Thurgood Marshall’s papers were released in 1993. That collection was devoured by researchers looking for insights into the justices’ internal debates in cases from Justice Marshall’s tenure on the court from 1967 to 1991.
Justice Blackmun served on the court from his appointment by President Richard M. Nixon in 1970 until 1994, including three full court terms after Justice Marshall’s retirement. Thus, Justice Blackmun’s papers provide never-aired details about three years’ worth of cases, as well as reams of interesting documents from his entire professional life.
An Olive Branch
After the graduation-prayer case was argued in November 1991, Justice Kennedy had voted in the justices’ private conference with Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Byron R. White to uphold such prayers. The chief justice assigned the majority opinion to Justice Kennedy.
But the 1992 term would prove that Justice Kennedy—an appointee of President Ronald Reagan’s—was not as reliable a vote as legal and political conservatives had hoped. Besides his surprise turnabout in the prayer case during that term, he would stun the nation by joining a slim majority to uphold the right to abortion.
Three years earlier, Justices Kennedy and Blackmun had traded harsh language in another church-state case involving the constitutionality of religious crèche displays on government property. Now, in his March 30 memo, Justice Kennedy was not only switching sides on the graduation case, but also offering an olive branch to Justice Blackmun.
“After the barbs in Lynch v. Donnelly, many between the two of us, I thought it most important to write something that you and I and the others who voted this way can join,” he wrote. “I will be most attentive to your criticisms.”
With Justice Kennedy’s switch, Justice Blackmun was now the senior justice in the majority, and the power to assign the writing of the opinion lay with him. One of his law clerks advised him in a March 31 memo that it was probably best to let Justice Kennedy’s opinion become the majority one, even though, as the clerk put it, “you wonder how it can be so long and say so little.”
“Getting Justice Kennedy’s vote and winning this case is the greatest victory of the year,” Justice Blackmun’s clerk wrote.
Justice Kennedy’s opinion went on to become the majority one, with Justices Blackmun, John Paul Stevens, Sandra Day O’Connor, and David H. Souter all signing on to rule that clergy-led graduation prayers violate the U.S. Constitution.
Many other interesting nuggets are in the collection.
In another important church-state case, Zobrest v. Catalina Foothills School District, a five-justice majority in 1993 upheld the government provision of a sign-language interpreter for a deaf student attending a Roman Catholic high school. The decision helped lay the groundwork for the court’s ruling nine years later, in Zelman v. Simmons-Harris, to uphold tuition-voucher programs that include religious schools.
A surprise from the collection is that Justice John Paul Stevens, normally a reliable vote against any form of government aid to religion, initially voted to uphold the provision of the sign-language interpreter.
“This is not an easy case for me,” Justice Stevens says in one memo distributed to all the justices. He would eventually join a dissent by Justice Sandra Day O’Connor that said the court should not have addressed the constitutional question because of technical flaws in the case.
In a school desegregation case in 1992, Justice Blackmun expressed concern in a memo to Justice Kennedy that a forthcoming ruling for the DeKalb County, Ga., school system would mean that a group of black plaintiffs opposing the district would have to pay court costs. The justices would rule unanimously in the case of Freeman v. Pitts that school systems could be freed from desegregation plans in stages.
Justice Blackmun noted that the bill for printing a compilation of the case’s massive record by itself was more than $36,000, which the black plaintiffs would customarily have to pay as losers in the high court.
“Surely, the school district is better able to pay than the original plaintiffs,” Justice Blackmun wrote in the memo. “In addition, it is the district, not the [plaintiffs], that was responsible for the segregation in the first place.”
Justice Kennedy accepted Justice Blackmun’s suggestion and decreed in the final Freeman opinion that “each party is to bear its own costs.”
‘You, Sir ...’
One of the joys of perusing such Supreme Court collections is the reminder they bring that the justices are, indeed, human beings.
Justice Blackmun found it worthwhile, for example, to save letters he had exchanged with an elementary school in his native St. Paul, Minn.
The justice wrote in 1976 to the class at Dayton’s Bluff Elementary School, which had invited him to the school’s dedication, but he could not attend because of court business. The school replaced Justice Blackmun’s own grade school, Van Buren School, which he had attended with his childhood friend and court colleague, then-Chief Justice Warren E. Burger.
Justice Blackmun told the students that his 4th grade teacher, Miss Hocanzon, was sometimes viewed as “cross and mean.”
“She wasn’t really cross and mean,” he wrote. “She was just strict, and she was that way because she wanted us to learn and not to waste our time. We learned a lot from her.”
Later that school year, the teacher who led the Dayton’s Bluff letter- writing project sent a final dispatch to Justice Blackmun, telling him: “We found your 4th grade teacher. ... She goes to church regularly but, poor dear, can’t remember you.”
Also in the collection is the text of a speech Justice Blackmun delivered in 1995, in his first year of retirement, to a board meeting of the National Education Association, which had given him an award.
As he was fond of doing, the justice shared with his audience some of the critical mail he had received for his Roe v. Wade opinion that legalized abortion and for other opinions.
His correspondents used such language as “You, sir, are a fool,” or “You, sir, are a senile old goat.”
“I like the consistency of it, you know—'You, sir ...’ ” he said in the speech.
Justice Blackmun turned, in the NEA speech, to the court’s 1954 decision in Brown v. Board of Education of Topeka.
"[O]ne wonders whether the promise of Brown has been fulfilled,” he said. Reflecting on the many desegregation cases that came before the high court during his tenure, he added, “I can see the constant battle that one has to fight for equality of educational opportunity.”