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March 5, 2004

THE BLACKMUN PAPERS

Friends for Decades, but Years on Court Left Them Strangers

By LINDA GREENHOUSE

ASHINGTON, March 4 — When Harry A. Blackmun was named to the Supreme Court, his mother warned that the appointment would change his relationship with Warren E. Burger, his friend since boyhood who had become chief justice the previous year.

Justice Blackmun, in an oral history, described his response: "Mother, it just can't. We've been friends for a long time."

" `Well, you wait and see,' " his mother replied.

"Of course, she knew Warren intimately," he told his interviewer, adding, "and she was wiser than I was."

For most of their lives, the two men from St. Paul had shared confidences, swapped advice and supported each other's ambitions. The dozens of letters that Justice Blackmun saved document a relationship of sometimes startling intimacy.

But, as his mother predicted, serving together on the nation's highest court did affect the friendship. In fact, their 16 years as Supreme Court colleagues left it shattered.

The private lives of Supreme Court justices are often hidden from public view. But Justice Blackmun's voluminous files, opened by the Library of Congress on Thursday, provide an inside look at the personal ties and tensions behind the bench.

During their last years on the court, it appears that Justice Blackmun and Chief Justice Burger barely spoke, communicating mostly through memos. Justice Blackmun's notes to himself, and his annotations on memos and draft opinions from the chief justice, show annoyance, even disdain. The best man at the Burgers' wedding six decades earlier, he did not attend Elvera Burger's funeral in 1994. By the end of their long lives, the two men had become strangers.

The sad dissolution of their friendship apparently had no single catalyst. Instead, Justice Blackmun's files, including a 1995 oral history, suggest that the rift resulted from a series of grievances, a clash of styles and a divergence of judicial philosophy.

Out of habit, perhaps, the two men continued sending birthday and anniversary greetings long after these had become ritualized reminders of a faded friendship. If they ever talked of what had been lost, Justice Blackmun left no record of it.

But he did hint at his feelings when Chief Justice Burger died in 1995. In a statement released by the court's public information office, he said, "His leaving instills a sensation of loneliness."

Long before the pair became known as the "Minnesota twins," a label Justice Blackmun greatly resented, they had grown up together, having met in kindergarten in St. Paul.

The finances of both families were meager. After graduating from high school in 1925, Mr. Burger sold insurance and took night classes, first at the University of Minnesota, then at the St. Paul College of Law. In 1931, he began practicing law and got involved in Republican politics.

Mr. Blackmun, meanwhile, won a scholarship to Harvard and worked at menial jobs to supplement his stipend. Harvard Law School came next, followed by a federal appeals court clerkship and law practice at a prominent Minneapolis firm.

'A Good Egg'

In one of the earliest letters in the collection, from 1929, Mr. Burger, then 21, adopts a paternalistic tone in advising "My Dear Harry" to go directly to law school rather than take time off to work and risk never continuing his education.

As he settled into his law practice during the 1930's, Mr. Blackmun briefly kept a journal, referring admiringly to Mr. Burger in the slang of the day. "He is a good egg," he wrote after noting that the Burgers were expecting a baby. On Thanksgiving Day in 1936, Mr. Blackmun recorded: "W.E.B. came over to hike a bit and let me unburden. He is a great scout."

With the two friends living in the same city for much of the next 20 years, their letter writing was suspended. In 1950, Mr. Blackmun left his law practice to become the resident general counsel at the Mayo Clinic in Rochester, Minn. Three years later, Mr. Burger left Minnesota to become an assistant attorney general in the Eisenhower administration.

Soon, Mr. Burger was appointed to the United States Court of Appeals for the District of Columbia Circuit. The transition to the life of a judge was not easy. The powerful D.C. Circuit was dominated by liberals, and his letters regularly described battles and voiced frustration as he often ended up on the losing side.

"We need a good visit, like two old Civil War gaffers," he wrote in early 1957. He said he wished he had "ordered my life so that I would be better qualified for this damned job. It takes some doing to do it right and I am not sure yet I have what it takes."

His letters to Mr. Blackmun over the years include many similar expressions of insecurity as the relationship between the men changed in subtle ways. Ambitious, volatile and sometimes emotionally needy, Judge Burger often reached out to his friend, seeking reassurance. Mr. Blackmun provided a sympathetic ear without joining in the debates that engaged Judge Burger or matching his invective.

Seeking relief from his court duties, Judge Burger tried in vain to persuade his friend to travel with him. "What do you say if Blackmun & Burger take off for a winter vacation — traveling light, i.e. without wives who so often abandon us?" he wrote in September 1958.

From December 1960: "What about a couple of weeks in the sun in Feb Mar or April? We need it!"

In April 1964, he lobbied for a trip to Palm Beach. As if in recognition that the elegant resort would strike his friend as too sybaritic, he offered an alternative in a postscript: "What about setting up a prison tour to Atlanta & somewhere else?"

By then, Mr. Blackmun, too, was a federal appeals court judge. He was named in 1959 to the United States Court of Appeals for the Eighth Circuit, which covers Minnesota and six other Midwestern states. Federal judges then earned about $30,000 a year, and with three daughters nearing college age, Judge Blackmun told Judge Burger that he was worried about money. "I deeply feel the need of a recess, even a short one, but I have yet to find out how one dares think of a Caribbean cruise on these lousy salaries," he wrote.

Judge Burger, already mentioned as a possible Supreme Court nominee, complained about the current justices in terms that were ever more shrill. "I'm getting so I don't read what these `phonies' on the S.Ct. write," he wrote in June 1961. "The horrible thing is that the Eisenhower appointees are doing most of the damage."

"Last Monday's effluvia of the Nine Great Minds is worse than most," Judge Burger wrote later. "As I watch this batch of mediocrities function I fear for the Republic. It would be hard to add up two total Supreme Court-caliber men out of the whole nine of them."

A Secret Hurt

The letters took a new tone in 1963, when Judge Burger, then 55, had some kind of an emotional crisis. The cause was unclear; the two men evidently had discussed the matter over the telephone.

"I do concede I ask too much of others," he wrote. "Not many are in this select club, but when they let me down I confess I am deeply, abnormally hurt & in these rare cases — or as to these few persons — it must, in the context, be a secret hurt."

He added: "I have my small private club of those who have never disappointed or let me down. Obviously you are one of the Charter members and in good standing even in your momentary `aberration' of refusing to join me in Holland. There are few to whom we `romantic idealists' can open up. You, too, are a `romantic idealist' with oak clusters!"

Judge Blackmun gently reassured him. "Of course, you are a romantic idealist and perhaps an incurable one and you always have been. You and I both are," he wrote. "We all have our frailties but you should never, never be concerned about yours. You have the corresponding strength which makes the presence of both features attractive and desirable."

Ever encouraging, he wrote after Lyndon Johnson's 1965 inauguration that Judge Burger should be president; his friend returned the compliment. Two years later, Judge Burger, complaining again about liberal judges, prompted a rare expression of political sentiment from his friend.

Naming Supreme Court Justices William O. Douglas and William J. Brennan Jr., along with the D.C. Circuit liberals, Judge Blackmun said, "They will smother the country, otherwise, and, in fact, seem to do pretty well along this line as it is."

Within three years, both men themselves were on the Supreme Court. The white-maned Burger, well-connected in Washington, was named to lead the court. The lesser-known Blackmun — considered an uncontroversial Midwestern conservative — soon followed.

On Oct. 12, 1970, Chief Justice Burger marked the beginning of Justice Blackmun's first term with a handwritten note:

"When we had those dreams of `doing it together' neither of us ever dreamed it would be this way or in this place. It was the practice we wanted.

"This is the first `real day' here and it is a baptism of fire few new Justices have experienced. For me it is the beginning of a great career for you — an association which, whatever the decisions, will be a source of constant strength to the Court, the country, and the C.J."

Justice Blackmun struggled that term, agonizing over decisions and laboring over opinions. When he proposed to describe a racial discrimination case in which he cast the deciding vote as "perhaps the most excruciatingly difficult case of the present term," the chief justice offered some strong advice.

"I am always uncomfortable — and I think most readers are — with our speaking too much of the difficulties of close cases," Chief Justice Burger said.

The camaraderie between the two continued through the mid-1970's. In the memos he circulated within the court, Justice Blackmun addressed his old friend as "Chief." But letters to "Dear Warren" still went to the Burger home in Arlington, Va. Justice Burger sent birthday greetings in November 1974 with the notation: "I'd hate to think about being here if we weren't both here."

"These have been great years," the chief justice wrote in June 1976 to mark the sixth anniversary of Justice Blackmun's arrival. "I'm glad you've been here. And anyway, there is no peace and quiet & if we must be in the storms & turmoil, it's more fun to be in the Big Storms! Many more."

From Friend to Adversary

But soon, the friendship was in peril. By June 1978, court relations were badly frayed. The chief justice's increasingly imperious management style and indecision about cases irritated his colleagues. Some grumbled privately that he lacked intellectual heft.

Earlier that spring, Justice Blackmun protested to the chief justice that he was not assigning him enough opinions to write. In a note, he said the few assignments "makes me feel somewhat humiliated not only personally, but publicly."

Justice Blackmun's clerks were writing comments on the chief justice's work in a disrespectful tone that could only have reflected signals from their boss. "Needless to say, I think the chief's comments on this case are ridiculous," one clerk noted on a memorandum from the chief justice in 1977.

Justice Blackmun's own notations were equally cutting. "A regular law review article!" he wrote sarcastically about comments the chief justice made about a draft opinion in 1978.

His notes of the chief justice's comments at one post-argument conference in 1979 began: "Talk talk." He marked a draft majority opinion that Burger circulated that year in a case concerning civil commitment to mental hospitals with a grade of "C-minus" and the comment "The expert in psych!"

He gave interviews to Scott Armstrong, co-author of "The Brethren," a 1979 best-seller about tensions inside the Burger court. Justice Blackmun's files disclose that he also authorized his clerks to talk to Mr. Armstrong.

His assessment of Chief Justice Burger's leadership is revealed by a note to himself from 1980: "The C.J. cannot control the conference," he wrote, using the justices' collective term for themselves.

Justice Blackmun's papers for that year include no personal correspondence between the two. While birthday and anniversary notes resumed after that, the files contain mainly press clippings about the chief justice, many unflattering.

Justice Blackmun wrote the court's 1977 decision that permitted lawyers to advertise, and he was clearly rankled by the chief justice's frequent denunciation of the practice as "sheer shysterism." He kept clippings of a Burger speech on the subject, and of a Washington Post editorial that criticized the speech.

In one landmark case, Justice Blackmun's files disclose, the chief justice had an extraordinary lapse: he not only did not vote, but failed to assign an opinion at all, necessitating a previously unexplained reargument the next term.

The case was Immigration and Naturalization Service v. Chadha, in which the court was asked to decide the constitutionality of the legislative veto. The device, attached over the preceding 50 years to some 200 federal statutes, enabled Congress to block an executive branch action by a vote of one or both houses, without the need to present a bill for the president's signature.

Chief Justice Burger's judicial instincts told him that this arrangement violated the constitutional separation of powers, as the opinion he eventually wrote the next year declared. But faced with the implications of striking down parts of 200 federal laws, he froze. His efforts to put off the issue provoked his colleagues, with Justice Blackmun perhaps the harshest critic. "We are here to decide cases," he wrote to Chief Justice Burger.

Perhaps deliberately echoing the chief justice's instruction to him years earlier, Justice Blackmun objected to Chief Justice Burger's description of the case in the proposed majority opinion as "sensitive and difficult." He threatened to write a concurring opinion describing the behind-the-scenes struggle over the case until the chief justice dropped the language.

There is no indication that the two exchanged personal notes when Chief Justice Burger retired in June 1986. The last reference to him was recorded in a "chronology of significant events" that Justice Blackmun maintained for each term. For June 25, 1995, the entry read: "W.E.B. dies."

A Visible Disappointment

That chronology probably offers as good an explanation of any about what happened, from Justice Blackmun's point of view, to kill the friendship. In the briefest of brush strokes, he depicts a pompous, self-important man who trampled on others' prerogatives.

"I place three cases for discussion, C.J. preempts all," one 1980 entry reads. After the presidential election that year, Blackmun recorded: "Reagan-Bush call on the Ct. C.J. takes over as usual in a big way." With the inauguration approaching, "C.J. `instructs' on proper inauguration wear. I say business suit w overcoat & robe." He added that Justice Byron R. White proposed a Pittsburgh Steelers cap `with earmuffs.' "

Soon after that, he recorded a slight to Associate Justice William H. Rehnquist, when the chief justice took over swearing in the White House staff. "W.H.R. tells me transition team had asked him to swear in W.H. staff Wed. a.m. He said he was on the bench the a.m. but could come after 3 p.m. They called back to say C.J. had preempted! He said he is furious."

If these complaints appear petty, their cumulative impact, like water dripping on stone, clearly eroded layers of affection built up over a lifetime.

Certainly the two diverged in their judicial views: in Justice Blackmun's first four years on the court, he voted with Chief Justice Burger 87.5 percent of the time in closely divided cases, but only 32.4 percent in the chief justice's last four years. But justices often maintain friendships across ideological lines. Mutually unrealistic expectations, perhaps, were more to blame for the rupture than differences over legal doctrine. While serving their country at the height of their careers, the two old friends painfully discovered that each was no longer the man he once had been.

Justice Blackmun suggested this in a brief memoir he left in his files. It was a brief tribute he wrote the year after Chief Justice Burger's death at the request of the law review of the William Mitchell College of Law, as the chief justice's alma mater had been renamed.

"I do not know what he expected, but surely he could not have anticipated that I would be an ideological clone," Justice Blackmun wrote. "He knew me better than that. But when disagreement came, his disappointment was evident and not concealed."

He then recounted his mother's prediction that the friendship would suffer, and concluded: "Warren Burger is gone now. He has put in his seventeen years of service and made his record. Evaluators will find it good, for he has contributed to the cause of justice in this country and to its dispensation. That is a large `plus' that the rest of us will be hard put to match.

"Eighty years is not only a lifetime. It is a particularly long lifetime. I was privileged to have shared most of it with him."


Research assistance for this article was provided by Francis J. Lorson.