So far, this has been an incredible, albeit exhausting, experience. When we first got to D.C. I really had no idea what to expect; half of that was felt by everyone and the other half was due to my not having listened when we were told the itinerary every day during class. For my research topic I am looking at Justice Harry Blackmun’s construction of a woman’s right to abortion. In general, this topic caught my attention because it is such a divisive issue. This topic is also especially relevant now because the new appointments of Justices Gorsuch and Kavanaugh have increased the probably of Roe v. Wade being overturned. I chose to look at Justice Blackmun in particular, not just because he wrote the majority opinion in Roe, but because he was nominated by President Nixon and assumed to be conservative on this issue. In fact, Chief Justice Warren Burger and Justice Blackmun were such good friends they were referred to as the “Minnesota twins”.
I walked into the Library of Congress confident that this would be an easy task— some skimming, some light reading, maybe a photo or two. I quickly realized that doing actual research in primary sources is entirely different than finding secondary literature on google scholar. Nonetheless, I quickly buckled down and started pouring through folder after folder of different cases.
While looking at the different draft opinions and noting the changes was extremely interesting, my favorite things to look at were the memos of correspondence. It’s through these memos that I really got an understanding of all the bargaining and compromise which goes into creating an opinion which a majority of justices will stand by. I think the best example of this is the case Hodgson v. Minnesota where Justice Stevens is doing everything in his power to write an opinion which Justice O’Connor will join. Stevens is making revision after revision just to get O’Connor to sign on, while still making sure that Blackmun, Marshall, and Brennan do not leave the majority.
When I was reading the final draft opinion back in Dallas, I had no idea all of the effort, compromise, and communication that went into creating a majority on this case. I think that is one of the coolest parts about doing research here is that you are able to take what you think you and add so many different layers to it.
Being a twenty-year-old college girl, I was also extremely fascinated by the relationship between the clerks and their justice. First, the gossip which these clerks were able to acquire and share with their justice was so impressive. For example, I came across multiple memos where a clerk was telling Blackmun he had heard from O’Connor’s clerk that she was having a difficult time with decisions in abortion cases. Fast-forward, and we see O’Connor voting to uphold Roe in Planned Parenthood v. Casey. Simply reading the final draft opinion alone, it seemed as if O’Connor’s sudden shift came out of nowhere, when, after having looked at the papers, I now know that this was a decision she had been grappling with for a long time.
It was also super fascinating to realize how much of an influence the clerks had on the decisions that the justices made. Especially in the later years of the Blackmun’s time on the Supreme Court he would often use what the clerks wrote in briefs or memos in his actual argument. Honestly, at first, I was slightly alarmed because it seemed like these recent college graduates were making monumental decisions; however, after talking to the clerk of the Supreme Court he assured me that while clerks do have some influence everything that a justice writes in an opinion is ultimately his/her own.