Justice Blackmun’s Papers?!

James Robenalt, a Washington Post writer recently commented on the creation of Justice Blackmun’s. Roe decision. Blackmun initially did not define viability. Blackmun’s draft opinion stated that it was impossible for the Court to, at this stage of the evolution of man’s knowledge, specify “when life starts.” In fact, neither of the parties involved RoeViability was the right standard, argued Justice Powell. Larry Hammond was Justice Powell’s clerk at law.

Hammond claimed that the Supreme Court shouldn’t be involved in line-drawing, however, if the Supreme Court felt it was necessary, viability appeared to be the best point at which the courts could reach a common understanding. Hammond used a Connecticut lower court case to argue that the state has a greater interest in protecting the life of potential foetuses.

Justice Blackmun was ultimately ruled in favor of Hammond’s memo:

Powell persuaded Blackmun through private correspondence to accept viability. The…” Roe V. WadeIt was issued in January 1973 and contained a trimester-based analysis which disallowed the state from banning abortions that were not viable.

You can fast-forward to the arguments Dobbs. Chief Justice Roberts referred to Justice Blackmun’s papers. Roberts used these papers to show that the viability limit in RoeActually, it was dicta! It’s amazing! My first article was about the difference between holding and writing dicta.

Roberts asked SG Steward if viability was an issue in Roe. Roberts noticed that the “it wasn’t briefed and argued.” Roberts then turned his attention to the papers.

CHIEF JUSTICE ROBERTS : Actually, it is a source that I can remember, but I believe it –in Justice Blackmun’s papers Justice Blackmun stated that the viability line was actually dicta. He probably had some knowledge about the question.

A “unfortunate” source is certain.

Roberts brought up this topic during his conversation with Julie Rikelman.

CHIEF JUSTICE ROBERTS: And the regulations in Casey had -had no applicability or not depending upon where viability was. They were valid for the entire period. They are applicable to the entire range, period. [Casey]It didn’t mention viability. Justice Blackmun also said it in –when discussing with his colleagues. The reason they don’t need to get papers out that early is that Roe doesn’t require them to deal with the line drawing in Roe and Casey didn’t.

Yikes. Roberts not only cited the Blackmun papers but he also kvetched at the Justices for not releasing their papers “that soon.” Huh? Blackmun was dead three decades ago. Roberts wants Blackmun’s 1973 papers to be sealed.  Did Souter get it right? Roberts could also address the unreleased release times for papers issued by Justices Stevens, Ginsburg.