The Release of Justice Blackmun's Files

NPR's Nina Totenberg Has Advance Look at Papers, Oral History

Supreme Court Justice Harry Blackmun (1908-1999) © Jeffrey Markowitz/Corbis Sygma hide caption

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itoggle caption © Jeffrey Markowitz/Corbis Sygma
Nina Totenberg

Nina Totenberg among the 1,576 boxes of Justice Blackmun's papers at the Library of Congress. Avie Schneider, NPR hide caption

itoggle caption Avie Schneider, NPR

Since early January, NPR's Nina Totenberg has been sorting through 1,576 boxes of papers that belonged to the late Supreme Court Justice Harry Blackmun. While most widely known for writing the Roe v. Wade decision, Blackmun was involved in many historic decisions throughout his tenure from 1970 to 1994. A meticulous note taker and filer, Blackmun left behind a unique perspective on the inner workings of the Supreme Court. In addition to paper files, his collection includes a 38-hour videotaped oral history, in which he discusses his experiences, key decisions and legacy.

Totenberg, NPR's legal affairs correspondent, was the only broadcast journalist granted access to Blackmun's files in advance of their public release March 4 — five years to the day after his death. She'll present a series of reports about them on Morning Edition, All Things Considered, Day to Day and other news programs beginning Thursday.

Npr.org will present audio and video from the oral history as well as key documents, including opinion drafts and personal notes, from his files.

Totenberg discusses the project in a Q&A:

Did you know Justice Blackmun personally?

I did. I covered the court the whole time he was there, and in fact I was in Minnesota [where Blackmun was living] when he was nominated, because I had a tip that he was going to get nominated. In the oral history my name comes up fairly frequently, though not always flatteringly [laughs]. In the last analysis though, I think he respected my work, and my surmise is that is why I got this exclusive.

Is it organized at all, or just boxes and boxes of papers?

It's very organized. It's organized by cases, by year and by subject matter. And yet — like anybody's files — there are gaps. He made multiple copies of things, and put them in more than one place. He was a complete packrat, keeping everything, including the notes on the bench that the justices wrote to each other.

Do you think he purposely kept and organized so much to serve as retrospective for people, or was it just the way he worked?

I think it was just the way he worked. And then, having done it, he realized that he had a duty to history. But he kept things that none of us would keep. He kept his tennis scores with [Chief Justice] Warren Burger from when they were kids. He kept his dance cards and notebooks from Harvard. He would clip things and put them in the files about all of his colleagues. I wish I had a clipping service like Harry Blackmun. He was compulsive about it.

With so many notes, do you see a lot of court decisions coming together?

You see draft after draft after draft of opinions. Most of their work is done by memo, so you see them arguing in writing, and trying to work things out in writing, like what words to use. In an opinion that may be 60 or 80 pages long, words count. Every word counts, not just the bottom line. Every word in every passage counts.

Was there a lot of back and forth for Roe v. Wade?

Yes. A lot of discussion about how to deal with it as an issue. And, of course, it was reargued. It went over two terms. Some of that is already known from the Marshall papers and the Powell papers, but some is not.

Have you ever had this kind of exclusive access before?

No. Only two other justices' papers have become public in a sort of contemporaneous fashion that I'm aware of. One was Justice [Thurgood] Marshall's papers, about which there was a lot of controversy. His family claimed that he hadn't intended them to become public. Justice [Lewis] Powell's papers are also public, but they're in Lexington, Va., which makes it tougher to access for people who cover the court here in Washington.

What can we expect to hear in your reports?

The pieces on the first day will have "the news," what I've found that's newsworthy, and an idea of some of the other things that we'll cover. Then I'm going to do a piece about the abortion cases, and one about the business of writing opinions, because you get a great flavor [from Blackmun's papers] of how opinions are worked on at the court. I'm going to do a piece that I call "A Marriage of Nine," which is about getting along with eight other people for a lifetime — you sit with them all the time, you're in the same building, it's a small institution — and how that feels. Harry Blackmun was a lifetime friend of Chief Justice Warren Burger, and one of the interesting and kind of sad things is how their friendship disintegrated. They had gone to elementary school together, and Blackmun had been Warren Burger's best man at his wedding. Their friendship completely fell apart once he was on the court, though, and so I'm going to do a piece about that.

Have there been many surprises?

A few. Since this will be appearing before my on-air reports, I can't tell you what they are [laughs].

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