Horizon, Host: Ted Simons

February 19, 2007


Host: Jay Lawrence

Linda Greenhouse


  • A conversation with New York Times reporter Linda Greenhouse, who has covered the U.S. Supreme Court for many years and is the author of the new book, “Becoming Justice Blackmun”.
Guests:
  • Tom Rawles - -- Mesa City Councilman
  • Linda Greenhouse - Author, "Becoming Justice Blackmun" and a regular contributor to the PBS program, "Washington Week"
Category: Law

View Transcript

Jay Lawrence: Tonight on "Horizon," the Mesa City Councilman who does not stand for The Pledge Of Allegiance as a protest. And "New York times" reporter Linda Greenhouse discusses the Supreme Court. Next on "Horizon."

Jay Lawrence:
Good evening, thanks for joining us tonight. I'm Jay Lawrence. The speaker of the U.S. House Of Representatives is making a special stop at Arizona State University today. Speaker Nancy Pelosi joined Arizona congressmen Harry Mitchell, Ed pastor, and Raul Grijalva to talk about the importance of making college more affordable. Pelosi talked about how the new democratically controlled Congress is making education a priority.

Nancy Pelosi:
So answering the call for a new direction that we heard in November, we came into power in a bipartisan way, and passed some legislation the first 100 hours that was a beginning, a beginning. Not everything, but a beginning that would signal change and would signal the importance of issues that related -- that were relevant to the lives of the American people. I salute all of you, because nothing is more important to your self-fulfillment than your education, and nothing is more important to your families than they help you advance that, and nothing is more important to our country than that you succeed at that. [applause]

Harry Mitchell:
A.S.U. students are graduating with an average of a little more than $15,000 in debt. It's not going down, it's going up. This is something that I just said that has been on the minds of most people. New leadership in Congress, it was on their minds right at the very beginning. The Madame Speaker mentioned that when we passed this, it passed overwhelmingly with Bipartisan support. It was 356 votes that voted to cut student loan or the student interest rate in half from 3.8\% to 3.4\%. That was done in a Bipartisan spirit with the new leadership that we have in Congress. This will save Arizonans roughly $4,730 over the course of their education.

Ed Pastor:
I know that some of you are here to hear one thing. What is going the happen after proposition 300 to those students who are not documented and who are now attending Arizona State or the community college system. We just met with the speaker a few minutes ago to tell her about the problems that very bright students are having in attending our community colleges and universities and colleges. Under her leadership, I will tell you that this March you will have an Immigration Reform Act that will include the dream act. [applause]

Raul Grijalva:
As we go forward in the Committee of Education and Labor, and the reauthorization of higher ed, areas that have to be dealt with, loans, the interest rate, reaching the goal of $5100 for Pell grants, which I think is the goal we have to shoot for, and also loan forgiveness for those students that choose to work in areas in which their talent and intellect is needed --

[applause]

Jay Lawrence:
Mesa City Councilman Tom Rawles has pledged to sit down during the council's pledge of allegiance ceremony until the troops are pulled out of Iraq. His action has created no small amount of controversy. He's received death threats that resulted in 24-hour police protection. He's here now to tell us why he's protesting in this manner. Mesa City Councilman, Tom Rawles. Welcome Tom.

Tom Rawles:
Evening you, Jay, how are you?

Jay Lawrence:
How do you use this as a way to protest the war in Iraq?

Tom Rawles:
It's not necessarily a direct correlation. It's an attempt to put the spotlight on a war in a way that gets to the American people on an emotional level, gets people off their couches and thinking about the war. This is a protest. There was no direct correlation between university students occupying the administration building and the Vietnam War back in the sixties. This is an attempt to generate thought and controversy so we can hopefully effectuate a change in policy.

Jay Lawrence:
Councilman, has it worked the way you expected it to work? Has it done the job?

Tom Rawles:
It really has, Jay. I have had more opportunities to talk to not just the local media, but the national media, about both the war and our freedoms here at home. One of the spin-offs of this issue has been people who don't believe I have the right not to say the Pledge Of Allegiance. I've had a wonderful opportunity in the last almost a month now to discuss the war, our policies there, the Middle East, as well as the stake or the sake of freedom in America.

Jay Lawrence:
Tom, death threats are a very serious way of approaching someone who is doing something you don't like. How long did you have the police with you?

Tom Rawles:
They were with me about 40 hours total until the police did what was called a full risk assessment, and they determined that the specific threats that had been made were more people mouthing off and being stupid than serious.

Jay Lawrence:
Are you still getting a lot of attention, television, radio? You've been on networks. Give us a little background.


Tom Rawles:
I've been on Fox National News. I've been AP stories, in the "New York Times," on a feature done in the "L.A. Times," radio shows in Wisconsin and Texas and other states and clearly there's national interest in what I'm doing and why I'm doing it. It's tapered off a little bit because it's now almost a month old.

Jay Lawrence:
Councilman, what has been the response? Has it been positive? Negative? Mixed?

Tom Rawles:
It's been mixed. Probably more negative comments than positive overall, but of late, as people have become more I think thoughtful about it, as opposed to responding emotionally, the tide has turned and clearly in the last two weeks, the numbers have been more positive than negative.

Jay Lawrence:
Tom, as you look back, might you have chosen a different way to express your feelings about the war?

Tom Rawles:
Certainly. There's many ways to do it. But I wanted to do it in a way that drove home to the American people how serious I was. I can remember, as a student during the Vietnam era, watching people burn the American flag and thinking, I don't like that, but I never thought he or she didn't have the right to do it. But it made me realize how serious they were, how passionate they were about their cause, and that made me think. If my efforts can make people think about this war, then it would have been well worth every ounce of controversy.

Jay Lawrence:
What's been the response of your fellow council colleagues?

Tom Rawles:
They basically have all indicated, with the exception of the mayor, that they don't agree with my position on either the war or how I am expressing my views. And that's their right, and I respect what they are saying, but they're not trying to muzzle me in any way.

Jay Lawrence:
This is a first amendment right, the right of you to make comments, to express yourself. Is anyone saying you don't have that first amendment right?

Tom Rawles:
There are people who have indicated that you cannot be disrespectful to the country, and you cannot be disrespectful to the flag, even though you may disagree with the specific policy.

Tom Rawles:
And I find that very sad. If I don't have the right not to stand for the pledge, then everybody else standing for the pledge doesn't mean anything. Good doesn't mean anything if you don't have an opportunity to do bad at the same time. So this is a question of political speech. It's not supposed to be comforting, it's supposed to be infuriating and irritating and challenging. And yes, I've been concerned about those people who have said -- elected officials in particular -- I don't have the right to express dissent and disagreement with the government's policy.

Jay Lawrence:
Have you had big crowds at council meetings?

Tom Rawles:
We had a pretty good turnout after the second time I did it. There was press after the first one. The second time there was quite a few people there. We had a very civil and a very thoughtful dialogue between the people who spoke and because it came up in our agenda at a particular place, I had the opportunity to respond. I said -- I told the people who were there that I respected their protest of my protest. It's been a valuable lesson for a lot of people.

Jay Lawrence:
How long will it go on?

Tom Rawles:
It'll go on until the troops come home. I will not stand for the Pledge of Allegiance now, any time during my term, and even after my term until we end this failed policy of being involved in the middle of Iraq's religious civil war.

Jay Lawrence:
The House passed an antiwar resolution. What would you like Congress to do about the war? We've only got about 15 seconds.

Tom Rawles:
I think we need to just get out. Whatever happens in that country is going to happen whether with you stay one day, six months, or six years. Let's pull our troops out, save American lives and let the Iraqi people deal with their own problems.

Jay Lawrence:
Councilman Tom Rawles thank you.

Tom Rawles:
Thank You Jay.

Jay Lawrence:
We'll see you again soon, you've got a meeting tomorrow night.

Tom Rawles:
Tomorrow night.

Jay Lawrence:
Pulitzer Prize winning journalist Linda Greenhouse spoke recently at A.S.U., The School of Justice and Social Inquiry sponsored the speech. It was part of the annual John P. Frank Memorial Lecture. The writer has covered the United States Supreme Court since the 1970s, and has written a book, "Becoming Justice Blackmun." She has also been a regular contributor to the PBS program, "Washington Week." Larry Lemmons spoke with Greenhouse.

Larry Lemmons:
They used to say about Sandra Day O'Conner that she perhaps became more moderate on her tenure of the court. But then others would say, no, the Rehnquist court moved a little more conservative. And I think with Justice Blackman it was very similar in the sense that I think he had said when they said did you become more liberal, he said no the court actually became more conservative.

Linda Greenhouse:
He said that, but actually that was only a slice of reality. He definitely became more liberal. If you look at his voting pattern, if you look at cases in which the court was divided, if you look at his voting pattern with his old pals from Saint Paul, Minnesota, Warren Burger, the Chief Justice, and let's say Warren Burger stands for the conservative wing of the court at that time, and the head of the liberal wing of the court at that time, in the first five years that those three justices served, Blackmun, Brennan, and Burger, Blackmun voted with Brennan 85\% of the time. By the last five years, that would have been 1981 to 1986, Blackmun voted with Brennan 70\% and with burger only 30\% of the time. So that was a definite shift by Blackmun over time. Of course the question is, what made that happen, what brought that about, and that's the interesting aspect of his biography.

Larry Lemmons:
Would you elaborate a little bit, before we go on, on the relationship between Warren Burger and Justice Blackmun. I find it a little tragic that they were the Minnesota twins, as you had pointed out. Wasn't Blackman the best man at Burger's wedding?

Linda Greenhouse:
He was, it is tragic.

Larry Lemmons:
As time went on, there became an ideological wedge between them.

Linda Greenhouse:
Yes, an ideological wedge and I think also a kind of a personality wedge. It's a fascinating story. And in fact, that aspect of my book is being made into a play. A Broadway producer got the rights to it and is making a Broadway producer got the rights to it and is making basically making a--

Larry Lemmons:
Funny then I should pick up on that because I'm a playwright. But that relationship is what drew me to that.

Linda Greenhouse:
Well, yes. And this producer, Jay Harris, it's what drew him to it. For me, in working on the materials in the Blackmun papers with the library of Congress, it was the biggest surprise. The outlines of their lives was well known. I had written both of their obituaries with the "New York Times." I knew that they grew up together, they met in Sunday School, in kindergarten. Blackman as you said was the best man at Burger's wedding. They were extremely close through their young and mid adulthood. Then it was commonly known they drifted apart and became rather bitterly opposed to each other in a number of important ways on the Supreme Court. Nobody had a sense of the texture of that or what might have happened. It comes through in letters, in Blackmun's diary entries, going back to the 1920's when Blackmun was considering to take a break from Harvard Law School because it was kind of driving him crazy, and he was saying stick with it, stick with it. I think what happened was they had not lived in the same city basically through their 40's and 50's. Burger was in Washington, Blackmun was back in Minnesota in various capacities. They corresponded by U.S. mail, very intimate and very revealing letters. Each one I think formed an image of the other as a very sympathetic friend, but they hadn't really been together. They didn't really know each other. When they ended up sitting side by side on the Supreme Court, beginning in the early 1970's and lasting to the mid 1980's, they realized they didn't really know each other. They each had become something quite different. Burger had become very invested in his position, he was a wine lover, he had a mini-estate in northern Virginia he was the Chief Justice. And Blackmun was very self-consciously, almost to a fault you might say, modest. He just rented a little apartment for him and his wife. He drove himself to work in his little beat-up old VW beetle. They had become very different, and they saw things in a very different way. Burger just made a lot of assumptions that Blackmun would do his bidding. And he was his own man. He was a little uncertain at the beginning, but he didn't want to be taken for granted by anybody. He was kind of edgy and wary and it just disintegrated from there.

Larry Lemmons:
I've heard theories that sometimes when justices are aware basically of the political climate, perhaps it's unconscious and perhaps the theory has no basis at all, but sometimes they moderate themselves if they feel the court is leaning one way or the other. Do you find that to be true in the years you've been covering it?

Linda Greenhouse:
Maybe a little bit more recently. Back in the Blackmun-Burger day, as such, he was a completely nonpolitical person. I don't think that would have led him -- he was really just trying to do the right thing by his own lights. And he struggled greatly throughout his career with the twin impulses. One, to do what he thought was right. And b, to do what he thought a federal judge should do, in terms of interpreting the constitution. At least he started out as a rather restriction constructionist judicial conservative, where he felt it wasn't his job to import his policy preferences into his jurisprudence. He never liked the death penalty. He grew up in Minnesota, which didn't have the death penalty since the early 1900's. It wasn't part of the culture and he wasn't comfortable with it. But in the early years he voted to uphold the death penalty because he couldn't really find in the constitution a basis for saying it was unconstitutional. So that was a struggle for him. As he relaxed that stance over the years, it wasn't because of external politics. It was because of his own understanding of what the court's death penalty jurisprudence was doing. How it was faulty and leading to shortcuts and actual injustice.

Larry Lemmons:
And didn't he say also, he wrote after a particular case that, if a prisoner cannot prove his actual innocence, before he's absolutely executed, then that is paramount to murdering that prisoner.

Linda Greenhouse:
Right right. That came up in a case where the claim was actual innocence. And someone claiming innocence should be able to sort of get a pass from the various procedural obstacles in various death penalty precedents. And the court -- by then it was Chief Justice Rehnquist, said, no, sorry, rules are rules. And that's one of the things that really drove Blackmun over the edge in terms of being willing to get back to the fundamentals. As he said at the very end of his career, he came to the conclusion that the death penalty experiment had failed. He said, I shall never again tinker with the machinery of death.

Larry Lemmons:
As issues go about, Roe V. Wade, he's certainly known for that. Can you talk about a little of his thinking and his determination for Row V. Wade? I know he also did research. Wasn't he the counsel for the mayo clinic as well?


Linda Greenhouse:
Yes before he became a judge, he had been the general counsel for the male clinic.

Larry Lemmons:
And so he did some research through them.

Yes. I think that's been a little --

Larry Lemmons:
Is that overstated?

Linda Greenhouse:
It's overstated. I think one thing to keep in mind about Roe against Wade, it wasn't Blackmun's idea. He was assigned to write the opinion by Chief Justice Burger, who was part of the majority. It's very easy -- this is not -- I'm not commenting on you, but it's easy for the public to fall into sort of anachronistic thinking about the whole abortion debate. It didn't appear then to the upper middle class middle-aged men -- as they all were -- it didn't appear then as it appears in our political discourse now. There was no such thing as abortion politics. What Blackmun and the other justices thought about the regime of illegal abortion was that it was a public health problem. Just around the time that the litigation that became Roe against Wade and the other cases were making their way through the federal courts, the major establishment medical organizations in the country, the American Medical Association, the American Public Health Association and others, were reevaluating their position of opposition to legal abortion, and deciding that here was a public health issue, unintended pregnancy was always going to be with us, women were always going to seek to end it, they were going to do it safely or not safely, and it was time to reevaluate this. There was a climate in the country that was really rather widespread, at least among the elites, that it was time to take a new look at this. So that's what Roe against Wade really reflects. If you go back and read it, it's surprising, it's very surprising. There's very little in the court's majority opinion about the rights of women, the right to control your body or your destiny, the things you hear today.

Linda Greenhouse:
On the other side, fetal rights, the two dissenters were not interested at all in the fetus. That was Justice White and Justice Rehnquist. The -- what the case really is about is the rights of doctors. As Blackmun saw it, the rights of doctors to treat their patients in the way they thought was in the patients' best interests. That's really what the case was all about. What was so interesting is how that view expressed in Roe against Wade shifted over time. By the end of his career, he was very engaged in the rights of women. And that was barely a speck on the horizon.

Larry Lemmons:
Do you see anyone on the court presently who might be something like a Blackmun? Is there potential for any of the justices to make a move ideologically, from one side to the other?

Linda Greenhouse:
A lot of people are focusing now on Justice Kennedy.

Larry Lemmons:
The only remaining swing vote.

Linda Greenhouse:
The only remaining swing vote with Justice O'Connor's retirement about a year ago. I think with Justice Kennedy, it's a little overdone. He has voted with the "liberals" in a couple of critically important cases for sure, most notably, Lawrence against Texas, the Texas gay rights case where he voted with the majority. If you look over the entire scope of the court's docket, criminal law cases, affirmative action, equal protection cases, he's been pretty consistently with the conservatives. I don't see that changing, actually.

Larry Lemmons:
Thank you, Linda Greenhouse, for joining us today.

Linda Greenhouse:
Thanks a lot. My pleasure.

Merry Lucero:
Funding for Arizona highway construction projects continues to fall behind the states needs. Lawmakers are working to find options to fund highway expansion projects. We talk about current legislation dealing with transportation, that's Tuesday at 7:00 p.m. on "Horizon."


Jay Lawrence:
Wednesday we'll take a closer look at the development of Downtown Phoenix, Thursday we'll introduce you to ASU's new Dean of the School of Computing. I will see you all tomorrow night. Thank you so much for joining us on "Horizon

Pledge Controversy


  • Mesa City Councilman Tom Rawles talks about his decision not to stand for the Pledge of Allegiance in protest of the war in Iraq.
Guests:
  • Tom Rawles - -- Mesa City Councilman
  • Linda Greenhouse - Author, "Becoming Justice Blackmun" and a regular contributor to the PBS program, "Washington Week"


View Transcript

Jay Lawrence: Tonight on "Horizon," the Mesa City Councilman who does not stand for The Pledge Of Allegiance as a protest. And "New York times" reporter Linda Greenhouse discusses the Supreme Court. Next on "Horizon."

Jay Lawrence:
Good evening, thanks for joining us tonight. I'm Jay Lawrence. The speaker of the U.S. House Of Representatives is making a special stop at Arizona State University today. Speaker Nancy Pelosi joined Arizona congressmen Harry Mitchell, Ed pastor, and Raul Grijalva to talk about the importance of making college more affordable. Pelosi talked about how the new democratically controlled Congress is making education a priority.

Nancy Pelosi:
So answering the call for a new direction that we heard in November, we came into power in a bipartisan way, and passed some legislation the first 100 hours that was a beginning, a beginning. Not everything, but a beginning that would signal change and would signal the importance of issues that related -- that were relevant to the lives of the American people. I salute all of you, because nothing is more important to your self-fulfillment than your education, and nothing is more important to your families than they help you advance that, and nothing is more important to our country than that you succeed at that. [applause]

Harry Mitchell:
A.S.U. students are graduating with an average of a little more than $15,000 in debt. It's not going down, it's going up. This is something that I just said that has been on the minds of most people. New leadership in Congress, it was on their minds right at the very beginning. The Madame Speaker mentioned that when we passed this, it passed overwhelmingly with Bipartisan support. It was 356 votes that voted to cut student loan or the student interest rate in half from 3.8\% to 3.4\%. That was done in a Bipartisan spirit with the new leadership that we have in Congress. This will save Arizonans roughly $4,730 over the course of their education.

Ed Pastor:
I know that some of you are here to hear one thing. What is going the happen after proposition 300 to those students who are not documented and who are now attending Arizona State or the community college system. We just met with the speaker a few minutes ago to tell her about the problems that very bright students are having in attending our community colleges and universities and colleges. Under her leadership, I will tell you that this March you will have an Immigration Reform Act that will include the dream act. [applause]

Raul Grijalva:
As we go forward in the Committee of Education and Labor, and the reauthorization of higher ed, areas that have to be dealt with, loans, the interest rate, reaching the goal of $5100 for Pell grants, which I think is the goal we have to shoot for, and also loan forgiveness for those students that choose to work in areas in which their talent and intellect is needed --

[applause]

Jay Lawrence:
Mesa City Councilman Tom Rawles has pledged to sit down during the council's pledge of allegiance ceremony until the troops are pulled out of Iraq. His action has created no small amount of controversy. He's received death threats that resulted in 24-hour police protection. He's here now to tell us why he's protesting in this manner. Mesa City Councilman, Tom Rawles. Welcome Tom.

Tom Rawles:
Evening you, Jay, how are you?

Jay Lawrence:
How do you use this as a way to protest the war in Iraq?

Tom Rawles:
It's not necessarily a direct correlation. It's an attempt to put the spotlight on a war in a way that gets to the American people on an emotional level, gets people off their couches and thinking about the war. This is a protest. There was no direct correlation between university students occupying the administration building and the Vietnam War back in the sixties. This is an attempt to generate thought and controversy so we can hopefully effectuate a change in policy.

Jay Lawrence:
Councilman, has it worked the way you expected it to work? Has it done the job?

Tom Rawles:
It really has, Jay. I have had more opportunities to talk to not just the local media, but the national media, about both the war and our freedoms here at home. One of the spin-offs of this issue has been people who don't believe I have the right not to say the Pledge Of Allegiance. I've had a wonderful opportunity in the last almost a month now to discuss the war, our policies there, the Middle East, as well as the stake or the sake of freedom in America.

Jay Lawrence:
Tom, death threats are a very serious way of approaching someone who is doing something you don't like. How long did you have the police with you?

Tom Rawles:
They were with me about 40 hours total until the police did what was called a full risk assessment, and they determined that the specific threats that had been made were more people mouthing off and being stupid than serious.

Jay Lawrence:
Are you still getting a lot of attention, television, radio? You've been on networks. Give us a little background.


Tom Rawles:
I've been on Fox National News. I've been AP stories, in the "New York Times," on a feature done in the "L.A. Times," radio shows in Wisconsin and Texas and other states and clearly there's national interest in what I'm doing and why I'm doing it. It's tapered off a little bit because it's now almost a month old.

Jay Lawrence:
Councilman, what has been the response? Has it been positive? Negative? Mixed?

Tom Rawles:
It's been mixed. Probably more negative comments than positive overall, but of late, as people have become more I think thoughtful about it, as opposed to responding emotionally, the tide has turned and clearly in the last two weeks, the numbers have been more positive than negative.

Jay Lawrence:
Tom, as you look back, might you have chosen a different way to express your feelings about the war?

Tom Rawles:
Certainly. There's many ways to do it. But I wanted to do it in a way that drove home to the American people how serious I was. I can remember, as a student during the Vietnam era, watching people burn the American flag and thinking, I don't like that, but I never thought he or she didn't have the right to do it. But it made me realize how serious they were, how passionate they were about their cause, and that made me think. If my efforts can make people think about this war, then it would have been well worth every ounce of controversy.

Jay Lawrence:
What's been the response of your fellow council colleagues?

Tom Rawles:
They basically have all indicated, with the exception of the mayor, that they don't agree with my position on either the war or how I am expressing my views. And that's their right, and I respect what they are saying, but they're not trying to muzzle me in any way.

Jay Lawrence:
This is a first amendment right, the right of you to make comments, to express yourself. Is anyone saying you don't have that first amendment right?

Tom Rawles:
There are people who have indicated that you cannot be disrespectful to the country, and you cannot be disrespectful to the flag, even though you may disagree with the specific policy.

Tom Rawles:
And I find that very sad. If I don't have the right not to stand for the pledge, then everybody else standing for the pledge doesn't mean anything. Good doesn't mean anything if you don't have an opportunity to do bad at the same time. So this is a question of political speech. It's not supposed to be comforting, it's supposed to be infuriating and irritating and challenging. And yes, I've been concerned about those people who have said -- elected officials in particular -- I don't have the right to express dissent and disagreement with the government's policy.

Jay Lawrence:
Have you had big crowds at council meetings?

Tom Rawles:
We had a pretty good turnout after the second time I did it. There was press after the first one. The second time there was quite a few people there. We had a very civil and a very thoughtful dialogue between the people who spoke and because it came up in our agenda at a particular place, I had the opportunity to respond. I said -- I told the people who were there that I respected their protest of my protest. It's been a valuable lesson for a lot of people.

Jay Lawrence:
How long will it go on?

Tom Rawles:
It'll go on until the troops come home. I will not stand for the Pledge of Allegiance now, any time during my term, and even after my term until we end this failed policy of being involved in the middle of Iraq's religious civil war.

Jay Lawrence:
The House passed an antiwar resolution. What would you like Congress to do about the war? We've only got about 15 seconds.

Tom Rawles:
I think we need to just get out. Whatever happens in that country is going to happen whether with you stay one day, six months, or six years. Let's pull our troops out, save American lives and let the Iraqi people deal with their own problems.

Jay Lawrence:
Councilman Tom Rawles thank you.

Tom Rawles:
Thank You Jay.

Jay Lawrence:
We'll see you again soon, you've got a meeting tomorrow night.

Tom Rawles:
Tomorrow night.

Jay Lawrence:
Pulitzer Prize winning journalist Linda Greenhouse spoke recently at A.S.U., The School of Justice and Social Inquiry sponsored the speech. It was part of the annual John P. Frank Memorial Lecture. The writer has covered the United States Supreme Court since the 1970s, and has written a book, "Becoming Justice Blackmun." She has also been a regular contributor to the PBS program, "Washington Week." Larry Lemmons spoke with Greenhouse.

Larry Lemmons:
They used to say about Sandra Day O'Conner that she perhaps became more moderate on her tenure of the court. But then others would say, no, the Rehnquist court moved a little more conservative. And I think with Justice Blackman it was very similar in the sense that I think he had said when they said did you become more liberal, he said no the court actually became more conservative.

Linda Greenhouse:
He said that, but actually that was only a slice of reality. He definitely became more liberal. If you look at his voting pattern, if you look at cases in which the court was divided, if you look at his voting pattern with his old pals from Saint Paul, Minnesota, Warren Burger, the Chief Justice, and let's say Warren Burger stands for the conservative wing of the court at that time, and the head of the liberal wing of the court at that time, in the first five years that those three justices served, Blackmun, Brennan, and Burger, Blackmun voted with Brennan 85\% of the time. By the last five years, that would have been 1981 to 1986, Blackmun voted with Brennan 70\% and with burger only 30\% of the time. So that was a definite shift by Blackmun over time. Of course the question is, what made that happen, what brought that about, and that's the interesting aspect of his biography.

Larry Lemmons:
Would you elaborate a little bit, before we go on, on the relationship between Warren Burger and Justice Blackmun. I find it a little tragic that they were the Minnesota twins, as you had pointed out. Wasn't Blackman the best man at Burger's wedding?

Linda Greenhouse:
He was, it is tragic.

Larry Lemmons:
As time went on, there became an ideological wedge between them.

Linda Greenhouse:
Yes, an ideological wedge and I think also a kind of a personality wedge. It's a fascinating story. And in fact, that aspect of my book is being made into a play. A Broadway producer got the rights to it and is making a Broadway producer got the rights to it and is making basically making a--

Larry Lemmons:
Funny then I should pick up on that because I'm a playwright. But that relationship is what drew me to that.

Linda Greenhouse:
Well, yes. And this producer, Jay Harris, it's what drew him to it. For me, in working on the materials in the Blackmun papers with the library of Congress, it was the biggest surprise. The outlines of their lives was well known. I had written both of their obituaries with the "New York Times." I knew that they grew up together, they met in Sunday School, in kindergarten. Blackman as you said was the best man at Burger's wedding. They were extremely close through their young and mid adulthood. Then it was commonly known they drifted apart and became rather bitterly opposed to each other in a number of important ways on the Supreme Court. Nobody had a sense of the texture of that or what might have happened. It comes through in letters, in Blackmun's diary entries, going back to the 1920's when Blackmun was considering to take a break from Harvard Law School because it was kind of driving him crazy, and he was saying stick with it, stick with it. I think what happened was they had not lived in the same city basically through their 40's and 50's. Burger was in Washington, Blackmun was back in Minnesota in various capacities. They corresponded by U.S. mail, very intimate and very revealing letters. Each one I think formed an image of the other as a very sympathetic friend, but they hadn't really been together. They didn't really know each other. When they ended up sitting side by side on the Supreme Court, beginning in the early 1970's and lasting to the mid 1980's, they realized they didn't really know each other. They each had become something quite different. Burger had become very invested in his position, he was a wine lover, he had a mini-estate in northern Virginia he was the Chief Justice. And Blackmun was very self-consciously, almost to a fault you might say, modest. He just rented a little apartment for him and his wife. He drove himself to work in his little beat-up old VW beetle. They had become very different, and they saw things in a very different way. Burger just made a lot of assumptions that Blackmun would do his bidding. And he was his own man. He was a little uncertain at the beginning, but he didn't want to be taken for granted by anybody. He was kind of edgy and wary and it just disintegrated from there.

Larry Lemmons:
I've heard theories that sometimes when justices are aware basically of the political climate, perhaps it's unconscious and perhaps the theory has no basis at all, but sometimes they moderate themselves if they feel the court is leaning one way or the other. Do you find that to be true in the years you've been covering it?

Linda Greenhouse:
Maybe a little bit more recently. Back in the Blackmun-Burger day, as such, he was a completely nonpolitical person. I don't think that would have led him -- he was really just trying to do the right thing by his own lights. And he struggled greatly throughout his career with the twin impulses. One, to do what he thought was right. And b, to do what he thought a federal judge should do, in terms of interpreting the constitution. At least he started out as a rather restriction constructionist judicial conservative, where he felt it wasn't his job to import his policy preferences into his jurisprudence. He never liked the death penalty. He grew up in Minnesota, which didn't have the death penalty since the early 1900's. It wasn't part of the culture and he wasn't comfortable with it. But in the early years he voted to uphold the death penalty because he couldn't really find in the constitution a basis for saying it was unconstitutional. So that was a struggle for him. As he relaxed that stance over the years, it wasn't because of external politics. It was because of his own understanding of what the court's death penalty jurisprudence was doing. How it was faulty and leading to shortcuts and actual injustice.

Larry Lemmons:
And didn't he say also, he wrote after a particular case that, if a prisoner cannot prove his actual innocence, before he's absolutely executed, then that is paramount to murdering that prisoner.

Linda Greenhouse:
Right right. That came up in a case where the claim was actual innocence. And someone claiming innocence should be able to sort of get a pass from the various procedural obstacles in various death penalty precedents. And the court -- by then it was Chief Justice Rehnquist, said, no, sorry, rules are rules. And that's one of the things that really drove Blackmun over the edge in terms of being willing to get back to the fundamentals. As he said at the very end of his career, he came to the conclusion that the death penalty experiment had failed. He said, I shall never again tinker with the machinery of death.

Larry Lemmons:
As issues go about, Roe V. Wade, he's certainly known for that. Can you talk about a little of his thinking and his determination for Row V. Wade? I know he also did research. Wasn't he the counsel for the mayo clinic as well?


Linda Greenhouse:
Yes before he became a judge, he had been the general counsel for the male clinic.

Larry Lemmons:
And so he did some research through them.

Yes. I think that's been a little --

Larry Lemmons:
Is that overstated?

Linda Greenhouse:
It's overstated. I think one thing to keep in mind about Roe against Wade, it wasn't Blackmun's idea. He was assigned to write the opinion by Chief Justice Burger, who was part of the majority. It's very easy -- this is not -- I'm not commenting on you, but it's easy for the public to fall into sort of anachronistic thinking about the whole abortion debate. It didn't appear then to the upper middle class middle-aged men -- as they all were -- it didn't appear then as it appears in our political discourse now. There was no such thing as abortion politics. What Blackmun and the other justices thought about the regime of illegal abortion was that it was a public health problem. Just around the time that the litigation that became Roe against Wade and the other cases were making their way through the federal courts, the major establishment medical organizations in the country, the American Medical Association, the American Public Health Association and others, were reevaluating their position of opposition to legal abortion, and deciding that here was a public health issue, unintended pregnancy was always going to be with us, women were always going to seek to end it, they were going to do it safely or not safely, and it was time to reevaluate this. There was a climate in the country that was really rather widespread, at least among the elites, that it was time to take a new look at this. So that's what Roe against Wade really reflects. If you go back and read it, it's surprising, it's very surprising. There's very little in the court's majority opinion about the rights of women, the right to control your body or your destiny, the things you hear today.

Linda Greenhouse:
On the other side, fetal rights, the two dissenters were not interested at all in the fetus. That was Justice White and Justice Rehnquist. The -- what the case really is about is the rights of doctors. As Blackmun saw it, the rights of doctors to treat their patients in the way they thought was in the patients' best interests. That's really what the case was all about. What was so interesting is how that view expressed in Roe against Wade shifted over time. By the end of his career, he was very engaged in the rights of women. And that was barely a speck on the horizon.

Larry Lemmons:
Do you see anyone on the court presently who might be something like a Blackmun? Is there potential for any of the justices to make a move ideologically, from one side to the other?

Linda Greenhouse:
A lot of people are focusing now on Justice Kennedy.

Larry Lemmons:
The only remaining swing vote.

Linda Greenhouse:
The only remaining swing vote with Justice O'Connor's retirement about a year ago. I think with Justice Kennedy, it's a little overdone. He has voted with the "liberals" in a couple of critically important cases for sure, most notably, Lawrence against Texas, the Texas gay rights case where he voted with the majority. If you look over the entire scope of the court's docket, criminal law cases, affirmative action, equal protection cases, he's been pretty consistently with the conservatives. I don't see that changing, actually.

Larry Lemmons:
Thank you, Linda Greenhouse, for joining us today.

Linda Greenhouse:
Thanks a lot. My pleasure.

Merry Lucero:
Funding for Arizona highway construction projects continues to fall behind the states needs. Lawmakers are working to find options to fund highway expansion projects. We talk about current legislation dealing with transportation, that's Tuesday at 7:00 p.m. on "Horizon."


Jay Lawrence:
Wednesday we'll take a closer look at the development of Downtown Phoenix, Thursday we'll introduce you to ASU's new Dean of the School of Computing. I will see you all tomorrow night. Thank you so much for joining us on "Horizon

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