Chapter 6 Chapter 3 Supreme Court "Old No. 3"

"My mind is full of plans, ideas, and schemes," Warren Berger wrote to Blackmun. "I want to hear your thoughts." The letter was written in June 1969, a week after Berger became chief justice.His first impressions of the Supreme Court were not great.The chief justice's office is cramped and cramped, but the public space in the courtyard is more than sufficient. "There are two large conference rooms that have never been used at all. The chief justice's office may even be refused to be used by judge assistants." He is determined to change the status quo. "I must make adjustments carefully and carefully at my own pace. I The position was never sought, and no effort was made to obtain it, but in the end, we have to fend for ourselves.”

The content of the above-mentioned communication actually has some hidden dangers: the same office has been used by successive chief justices since Charles Evans Hughes. Why does only Berg feel that there is not enough space?Blackmun didn't notice this.Instead, he literally took the meaning of the "we" in the new chief's letter that "we'll have to fend for ourselves after all," and responded with gusto.Blackmun wrote a long, eight-page letter filled with detailed discussions of how the court should be run, from how clerks should be managed to whether the court session should end in June and whether it was necessary to provide for each justice. The judge provides the car and driver. "City traffic is getting bigger," Blackmun said. "A justice shouldn't be spending all his time commuting. It would be a joke if a justice got into an accident while driving."

Blackmun proposed abolishing the tradition of sentencing in the bench.Other courts, he noted, issue judgments almost exclusively through the clerk's office, rather than formally delivering sentences.The way the Supreme Court pronounces a sentence is for the justice to read the summary of the judgment to the spectators in the courtroom. Blackmun believes that this is really an "outdated" practice that wastes the time of the justice."I wonder if this time-consuming and labor-intensive routine is out of date," he said. Blackmun may just be trying to offer some helpful advice to the new chief justice, but some of it is clearly nitpicking.In fact, he personally does not have any special needs for a special car.After he entered the Supreme Court, until he left office, he drove a blue Volkswagen Beetle to and from get off work, so that after his death, his family rented a car of the same model and added it to the funeral team, capital miss.Many justices get the spotlight when they read the majority or dissent, which is, in part, the real reason Chief Justice Burger is reluctant to abolish the tradition.In fact, after Blackmun became a justice, he also used this platform to the extreme. He made full use of the opportunity of sentencing many times to make his own voice, and the content of his speeches would go far beyond the scope of written opinions.

After Berg took office, the 1969 court session did not begin until October, and the two corresponded frequently that summer.One of Berger's first clerks, a former editor of the University of Minnesota Law Review, was interviewed and recommended by Blackmun.In Minnesota, Blackmun almost became the face of Berger.Whenever Berg encountered difficulties or heard unfavorable rumors, he would speak out for his old friend and solve problems.The Burger court, with its "aggressive and dynamic new chief," doesn't show much difference from the Warren court, Blackmun told a group of agents attending an FBI training camp in Rochester. "Don't think he's going to stand against Mr. Warren," Blackmun said. "Ignore what some newspaper article or commentator is saying. Believe it or not, Mr. Burger was raised in a liberal tradition. Controversy, not tradition." Blackmun predicted: "His time will not be conservative. He will experience the same criticism or opposition as Chief Justice Warren, but these criticisms will be presented in another way. I I think the future is going to be a very interesting period.”

Berg himself is not having an easy time, and is always ready to give it a go.He wrote to Blackmun just as the new court session had just begun.He was exhausted and could only regain some balance by sleeping 12 to 14 hours a day.He has to deal with several sitting justices who are resistant to him.He told Blackmun that after a few visits to the Supreme Court, he "found it to be dangerous and dangerous. It might be a bit shocking to say that, but I'll get to that later. There's more than one guy who's hostile to me." Researched the latest Supreme Court decisions, but the impression is really not good. "Many opinions in 1968-1969 were not considered at all. Hugo Black was the best of them all. Some of his statements were too 'absolute', but he was the most thoughtful. We must put the hope of 'reconstruction', Clement Hainsworth, and Hugo Black, Byron White, John Marshall Harlan and Potter Stewart. It's unbelievable that these nine guys could Reality has been built in for so long. Fortas is a lot better than some . . . poor hapless Abe Fortas."

A few months earlier, in March 1969, Justice Fortas had resigned.After Johnson's 1968 nomination for chief justice was thwarted, he was embroiled in a financial scandal.Now, Berg began to consider who should be Fortas's successor.Nixon had nominated Clement Haynsworth, an appeals court judge from Southern California, whose confirmation hearings were underway before the Senate Judiciary Committee.The hearing did not go well, and after hearing the news at his Rochester home, Blackmun wrote to Berg, "Your Haynesworth is having a rough time." Nonetheless, Blackmun Still feeling that "he's going to get confirmed in the end." Blackmun agreed with Berger's high opinion of Fortas and Black, who, despite the latter's age of 83 as a senior co-judge, felt that "Black's opinion It’s too important to ignore.” Blackmun noted that Berger’s new position will also have an impact on the content of their relationship.The two longtime friends have been appellate court judges at the same level for the past decade.They are now at different court levels. "Two of my cases will be appealed to you this fall," Blackmun wrote. "I will not discuss my cases with you again. I have mentioned two cases now and may in the future More cases, hope that when you take over, you can handle them accurately. Don't think there is any duty of loyalty to me. In fact, this is the first time in our lives that we are in such a situation. No matter what you do, between us There will be no unhappiness in the meantime, and there is absolutely no need for any explanation or justification."

Although Blackmun never seriously considered the possibility of his nomination to the Supreme Court, he was considered long before Nixon took office. Shortly after the 1968 election, Minnesota Representative Albert Owing, urged by a senior physician at the Mayo Clinic, sent a letter to presidential campaign aide Bryce Harlow recommending Blackmun as a future candidate for justice .In May, after Fortas resigned, Oin wrote directly to the president: "I think that Judge Blackmun is outstanding, profound, and judicially successful, and he is absolutely qualified for this position." Greg, also actively contributed to this.Soon there were calls to nominate Blackmun. On July 25, 1969, the Washington Star published an illustrated article listing Blackmun as one of the top contenders to fill the vacancy for justice.Berger sent the article to Blackmun, enclosing a sealed, autographed letter saying: "Harry, everything is going well. Seeds take time to grow, but they also need to be planted! More on that later." discuss."

Nominations for Haynesworth began in late summer, and the confirmation process has been a mess.He has been accused of violating judicial ethics in a case involving his own financial interests. On November 21, the senators voted 55 against and 45 in favor, rejecting his nomination.The president instead nominated Harold Carswell, another appeals court judge from the South, but was quickly rejected by the Senate, and on April 9, 1970, Attorney General John Mitchell called Blackmun to invite him Go to Washington. “I asked the other party if I should have done some preparation,” Blackmun later wrote. “He said no, told me it was about the Supreme Court, and asked me if I would accept the nomination. In that case, anyone would It's hard to say no." Berg had apparently communicated with the White House, because Blackmun had just finished answering Mitchell's phone call when his call came, much faster than the nomination information was released to the public.Blackmun trotted into the parking lot and finally caught a flight from Minneapolis to Washington that afternoon.He didn't even have time to inform his wife, Dottie, who was out of town attending to his father's death the day before yesterday.

On the plane, he again began to draw up a list of pros and cons, as he did 11 years ago when he decided whether he should take his chance at the appeals court. The 1959 table has an equal number of pros and cons.But this time, he found himself listing only "total negative reasons" including: "My lifelong friendship with the Chief Justice," "I'm not politically sensitive," "It's taking me longer to reach a verdict," " I have no interest in life in Washington", "I am not familiar with the powerful people in Washington" and there are no corresponding positive reasons listed on the forms.It is unclear whether the news that he will be nominated to the Supreme Court of the United States will make him excited or full of ambition. "I think I'm still vigilant about the future," he said.

The progress of the incident was much faster than Blackmun imagined.Assistant Attorney General William Rehnquist has been tasked with analyzing Blackmun's trial record in the appeals court and submitted his recommendation on April 10: "I think he presents a middle ground, both in the criminal arena and in the civil rights issue. Conservative," Rehnquist wrote, "he did not lean overwhelmingly on one side or the other, although he would, in most cases, be more conservative than liberal. All his judgments, The reasoning was meticulous and there was no sign of preconceived bias. The verdict was full of arguments and references, and no one accused him of being uneducated."

While checking in at the Cosmos Club, a private club he checks into on every business trip in Washington, Blackmun "suddenly put a hand on my shoulder," and an FBI agent later Spent 3 hours with him.The next day, he traveled to the Justice Department, where he met with Mitchell Rehnquist and Johnny Walters, another acting attorney general, who also oversees tax inspections.He asked about Blackmun's three daughters, aged 20, 22 and 26. "Are they hippies?" Blackmun pulled out a photo of his daughter, reassuring the officials about the ideological tendencies of their younger generation.In fact, when his youngest daughter, Susan, did consider herself a hippie when she first entered college, she was also politically radical.She regarded Nixon as a political villain, and her family knew it well.Once, Blackmun showed her a pen that Nixon had given her, and she responded, "Wow, that's a pen from Sly Dick (Nixon's nickname)." Blackmun snatched the pen back. , angrily left the room. The meeting in the attorney general's office, which even missed lunch, surprised Blackmun how long the three senior officials had spent with him. "The loss of the nominations for Hainsworth and Carswell made these three tormented enough. They were deeply disappointed that Hainsworth was rejected, and Carswell's setback made them even more embarrassed." That afternoon , Attorney General Mitchell took Blackgate to the White House to meet with the president. The meeting with the president lasted 45 minutes.During the conversation, Nixon occasionally put his feet on the table.This is a small talk.Nixon asked Blackmun about his net worth. “I was kind of annoyed, and I wasn’t going to hide it. I told him my net worth, excluding real estate, was about $70,000. That detail really pissed me off, and I wasn’t going to hide it. Mr. Nixon responded: "This level can only be regarded as a beggar in the Supreme Court." I must have blushed and sounded a little annoyed at the time. He may be underestimated at first. Then he asked me to guess how much he was worth when he left the White House after he finished his vice presidency. He himself replied that it was only $42,000, while many of his subordinates left with hundreds of dollars. Ten thousand net worth. There are always honest and dishonest government officials." After receiving the official recommendation from Mitchell, the president told Blackmun that his nomination would be announced in four days. "He then stood up and talked about the end," Blackmun later wrote, "and then, taking my arm, he pulled me to a window overlooking the Rose Garden. He said, Judge, here you go And finally, will be completely independent. And as it should be. However, I should warn you that the 'Georgetown gang' will try to find out about you. You will be treated to good wine and food. I suspect that there are two That's what the Justice has suffered. Can you stand a series of cocktail parties in Washington society? My answer is, I can. In fact, in order to maintain my work enthusiasm and health, I must. Then he asked Whether my wife could live with that. I told him I thought she could. He said it was very important." No one had asked Blackmun to bring his financial records to Washington beforehand, so Assistant Attorney General Walters had to go to Rochester himself to review all of Blackmun's tax returns.The two booked different flights and agreed to arrive in Minneapolis at the same time.Senator Walter Mondale of Minnesota, an old acquaintance of Blackmun's, happened to be on the same flight as the judge.On board, he was chatting with a passenger, a local businessman who happened to be an acquaintance of Blackmun's. "Do you know Blackmun?" the merchant asked Mundell. "Of course, he is also a conservative." Mundell replied.Blackmun later recalled his nomination process, "I was hesitant, should I let him know that I was sitting next to him? It would be embarrassing for them, but I couldn't completely ignore it." .At this moment, Mundell turned around and said: 'Oh, Judge, I'm telling Eddie how good you are.'" Next, the three had a warm and sincere conversation, and Mundell agreed. Privately supported Blackmun's nomination without making a public statement. Upon arriving in Minneapolis, Blackmun invited the assistant attorney general for a ride in his Beetle.The two drove to Rochester together, and the next day, which happened to be Saturday, they made an appointment to meet in the morning to review all the tax returns together.Everything is in order. "I think it's the cleanest batch of returns I've ever seen," the head of the tax comprehension division told the prospective nominee.In his report to Washington, Walters acknowledged that he only reviewed Blackmun's tax returns, not his judicial decisions. "With his well-organized tax returns and all the recommendations I've been given," Walters said, "there's no question that he's a very good judge." The only financial issues that have raised doubts for the White House relate to two cases that Blackmun has tried related to Ford Motor Company, of which he owns 50 shares.In the end, after research by the legal team hired by the White House, the Review Committee of the American Bar Association and the Senate Judiciary Committee, it was concluded that the financial interests involved were minimal and there was no problem. After seeing Walters, Blackmun flew to St. Louis to preside over his final trial on the Eighth Circuit Court of Appeals.The news about his imminent nomination has been circulating in the market by this time. After the official announcement on Tuesday, April 14, reporters and cameras filled the lobby of the St. Louis Federal Building. "It reminded me of images of the Bastille riots," Blackmun later recalled.When one of the reporters asked him if he was a "strict interpreter," as the White House spokesman put it, Blackmun responded that he had no intention of labeling himself, preferring to "let things stand." The next morning, He went back to his office in St. Louis, tidying up his desk and clearing the clutter.Both Justice Byron White and outgoing Justice Tom Clark called to congratulate.He stopped in front of a donut shop on his way to pick up his return flight ticket, "suddenly feeling very lonely and a little sad." There are indications that the nomination of Blackmun will be easily approved, which is what the White House expects.The rival Nixon defeated in the 1968 election, former vice president Hubert Humphrey of Minnesota, also endorsed the nomination.The media overwhelmingly supported Blackmun. He was described as "quiet and knowledgeable" and "unconventional" as "a judge among judges." The Associated Press published a feature article quoted by hundreds of newspapers, emphasizing "Many judicial views are clearly similar to his old friend, Chief Justice Warren Burger." However, the "Washington Post" issued a different argument: "Through his past judicial opinions and his excellent reputation, We found him to be a conservative but independent judge who often had new ideas." Among the congratulatory messages was one from nomination-thwarted Clement Hainsworth.The address line reads "My dear Mr. Justice" although Blackmun's appointment has not yet been confirmed. "I am sure that a large majority of the Senate is now considering your nomination, and I sincerely believe that they will give you an easy ride through the hearings and subsequent proceedings," Hainsworth wrote. .He specifically emphasized that when he suffered a loss, "one of the most touching letters I received" came from Harry's eldest daughter, Nancy Blackmun.Hainsworth said that he plans to send a copy of the letter to Blackmun to Nancy, "I want to tell her that the wounds of last autumn have gradually healed, and I am now looking to the future and not emotionally. No harm whatsoever, and the last thing to assure her is that she can look forward to her father becoming one of the greatest justices ever." Judging from the tone of Blackmun's reply to the congratulatory letter, the good news from Washington did not cheer him up. "It seems like the whole roof has collapsed on me and my family," he wrote to his law school classmate in such a tone. "I don't know how the future will develop. We just struggle day after day like this." On April 29, 1970, Blackmun's confirmation hearing ended in less than four hours.After spending the previous day idling in the Senate office, he had spent a quiet night at the Cosmos Club, "reading Tolkien a little before bed." A torn coat.His wife, Dottie Blackmun, is still in Rochester, and they discussed the need for her to attend the hearing.But Blackmun finally decided to "walk this last journey alone" The questions posed by the senators were friendly, if perfunctory, and no one came out against his nomination.Blackmun assured the Senate Judiciary Committee that he would not hesitate to compromise when he disagreed with Chief Justice Burger. There will be tension over differences of opinion, but I'm not afraid of that happening." He said these words, perhaps because of his mother's exhortation.When Theo Blackmun, then 85, learned of the nomination, she reminded her son that his relationship with Warren Berger would inevitably change.Blackmun later recalled his reaction: "Mom, that's impossible, we've been friends for so long." "Well, then you just wait and see," replied the mother. The Judiciary Committee unanimously approved his nomination, and on May 12, the Senate approved him as a Supreme Court justice with 94 votes in favor and 0 votes against.It was two days before Fortas resigned that day, and it would be one year.Blackmun never forgot that he was the third choice for the seat, and he billed himself as the "Old Number Three" for a long time afterwards.This year, he was 61 years old. The day before he was sworn in, Blackmun received a welcome letter from Berger.As the end of his first session as chief justice draws to a close, Berger appears optimistic.He believes that, unlike last summer, the justices have begun to become "a caring, considerate and dedicated collective." The good atmosphere in the Supreme Court "may mean that everyone is gradually letting down their guard. My people, now probably don't think I'm as bad as they feared." Still, Berger made it clear that he had his own set of ideas that needed to be put into practice, implying that he expected Blackmun and He does this task together. "One of the biggest problems right now is to move away from the attitude that makes anything stupid or wicked unconstitutional, and to explore the deeper meaning of the 'Due Process Clause' or the 'Equal Protection Clause,'" Berger wrote. The Constitution does not contain everything that is perfect, nor prohibits everything that is uncertain. It is not a dogma. We don't need to make it too burdensome, or make it too demanding. The purpose of the Constitution is to put it into practice ’” After talking about business and personal matters, he finally said: “For us, this will be a satisfactory way to end our judicial career. 35 or 40 years ago, we had the idea of ​​​​joining a law firm. , the original dream has blossomed in another way we can't imagine! Welcome to Washington!" Blackmun booked five rooms at the Dupont Plaza Hotel for his family, who will attend his swearing-in ceremony on June 9: wife Dotty, three daughters, two sons-in-law and sister Betty.The ceremony that morning was brief, and Blackmun then had lunch with his new colleagues at the Supreme Court. The Supreme Court case quickly fell to Blackmun.Immediately after the confirmation vote, the Supreme Court sent him files in 22 cases urgently needed to decide whether to issue certiorari.According to the rules of the Supreme Court, if the four justices agree, the case can be reviewed and the case accepted.Blackmun knew very well that in most of these pending cases, he would be the decisive vote.This is hardly a surprise.He had hoped for "an easy start to the 1970 trial." After receiving a pile of files, he wrote to Berg: "These 22 cases have ruined my hopes." He said, "Obviously, if I It's not the key vote, these cases are impossible to come so quickly. Such an opening really makes me feel uneasy." Blackmun's letter also expressed his inner expectations. "I need your help." He confessed to his old friend. In 20 years, this is the first time the two have lived and worked so close together. “It is difficult to put into words what I look forward to, even though it is difficult to put it into words, to be able to chat and walk with you,” Blackmun wrote. “If so, It will be my greatest relief in this time of great stress. I do not want our friendship to cause you any trouble. We must always be vigilant and avoid misunderstandings as much as possible." When the 1969 session ended, the situation was far more chaotic than Blackmun had expected.Berg originally told him that the Supreme Court would enter its summer recess on June 15, but it was delayed until June 29 before the justices could finish their work.Blackmun was quite surprised by such high-intensity work: "Although I stayed in Washington for a short time, the way of doing things, the rhythm and attitude here are very different from other places." On June 19, he wrote to the Eighth Circuit Court of Appeals Judge Pat Mehaffey, a close friend of his, said: "I don't even know if I'm going to last here." In Rochester, Blackmun enjoyed the homecoming treatment.The local chamber of commerce sponsored Harry Blackmun Day with a welcome lunch at the Calle Hotel.Blackmun told the guests that the 20 years she spent in Rochester "was a very satisfying and happy time." At the end of the event, Dottie Blackmun couldn't help but cry.The next day, Blackmun wrote to the hosts: "I have rarely seen Dottie so emotional." On August 17, the Minnesota Star published an editorial entitled "Goodbye, Justice Blackmun," by a writer who knew the local favorite well. "He was a man of rigor, able to combine the self-confidence of his education with the humility of his life," the editorial said. , when Blackmun leaves Rochester, what kind of impact will his background in the middle of the United States, his generosity, honesty and respect for tradition have on his life in the Supreme Court, after all, in that place, personal ideas are as important as precedents .” The Blackmuns considered keeping their Rochester home, but ultimately backed away from leaving it vacant for a long time.They sold their house and rented a three-bedroom apartment in Arlington, Virginia, with a balcony overlooking the Washington and Lincoln Memorials.The Bergers also lived in the suburbs of Arlington. They bought a six-acre farm, nicknamed "Holly Hills." Berger advocated an English-style life, loved gardening, and was keen on collecting fine wine and antiques.To welcome Blackmun to the Supreme Court, Berger presented him with a top hat normally worn only on formal social occasions. On July 1, Blackmun mentioned the gift with a touch of sarcasm in his thank you letter: "I now have the opportunity to appreciate it. The workmanship is really exquisite. Of course, it is also an excellent target for throwing snowballs during snowball fights. You must Tell me what the hell is going on with this thing, and have to lend me some suitable clothes to line it up. Anyway, thank you very much. When I get back, you'll have to instruct me on what to add to my wardrobe Something. I'm just a country boy with some summer and winter coats and old suspenders in my closet." Berger wrote back: "I got your letter from 'country boy.' I have no advice for top hats, but it looks like you've done a good job with your wardrobe." The hectic June has passed and the real work has just begun.With 17 cases scheduled for consideration this fall, the justices are overwhelmed with just that.Among them, 13 cases are the second review, and the remaining 4 are the third review. In addition, there are 5 new cases involving complex issues, and they are closely related to some old cases.While the other justices were already familiar with the merits of these cases, or at least the issues they were relevant to, only Blackmun had to start from scratch. "Seeing this, people would think that the Supreme Court is severely divided." In a memo, Blackmun expressed his outlook for the new session. "So this court session is not going to be that easy for me." On October 12, 1970, the justices heard oral arguments for the first time this session.Berg wrote an impassioned letter to Blackmun: "When we dreamed of 'doing things together,' we never imagined that this day would come here and in this way." He wrote, " Today marks the first 'true working day' where a handful of new justices have been put to the test. To me, today marks the start of your great career, and as a co-judge, your decision Will be a source of strength for this court, this country, and the Chief Justice himself. As always, Warren." The next week, Blackmun took on his first case, Wyman v. James.This is a brand new case, not one that's been scheduled for a second review.The controversy in this case mainly revolves around whether a law in New York State is constitutional. This law requires recipients of social assistance funds to accept regular home visits by social workers. If they refuse to cooperate, they may lose relief funds.The federal district court in Manhattan has ruled that such home visits constitute a Fourth Amendment "search" that requires the consent of the occupants, or a search warrant that requires reasonable cause.If the above requirements are not met, the act of social workers entering the home of a welfare recipient violates the Fourth Amendment to the Constitution. By participating in the first week of the trial, Blackmun has begun to gradually understand the trial process of the Federal Supreme Court.On the weekend of the trial week, all the justices will meet in a secret room to discuss the case and decide how to vote. Judge assistants and any staff are not allowed to be present. (The word "conference" has two meanings in the Supreme Court. When it is lowercase in English [conference], it represents a general meeting. When the first letter is capitalized [Conference], it represents a meeting attended by all nine justices. If a memorandum It was forwarded by one justice to the other eight justices, and it was written "To the Conference". The meeting process was very formal. The chief justice sat at the end of the long table, and the most senior co-justice Hugo Black sat at the other end. The other justices sat on both sides of the long table in turn. The speeches and votes of the justices are in order of seniority. Berger will make a concluding speech at the end of a case discussion, unless he chooses "Skip" or he will first announce his vote: uphold the original sentence or revoke the original sentence. Next, Black and other justices will speak and vote, in order: William Douglas, John Harlan, William Bush Lennan, Potter Stewart, Byron White, Thurgood Marshall, and finally the Blackgate. By convention, as the most junior justice, he also had to watch the door. A clerk or other clerk knocked He had to get up to handle all kinds of chores when the door passed a message. "Sometimes you have to get up and answer the door just halfway through your words. After you are done, your previous thoughts are completely wiped out, and your thinking is completely disrupted." Blackmun later recalled road. As the discussions go on, Blackmun records the votes on a blank sheet of paper.The specific method is to draw a four-frame square on both sides of the white paper, each representing a justice.When he agrees with a justice's position, he will check the box.Blackmun refers to other justices by their initials and an "X" for himself.After the justices have cast their votes, the chief justice, if he himself belongs to the majority opinion, is responsible for appointing the majority opinion writer.If the chief justice is on the minority side, the most senior justice on the majority side is responsible for appointing the writer.Although allocators occasionally have some strategic purpose, the overall goal must be to ensure that the task of writing judgments is distributed relatively evenly to each justice.From October to April of the following year, the justices spend two weeks a month in court.In fact, their votes often only represent the opinion of the time, and they often change their positions later because they are persuaded by the majority opinion or dissenting opinion. In a 6-3 vote, the Supreme Court overturned the district court's decision in Wyman v. James, upholding a controversial provision in New York City's social welfare statute.The verdict was almost predictable, and the dissents were all liberal justices: Douglas, Brennan, and Marshall.Douglas was nominated to the Supreme Court by President Franklin D. Roosevelt when he was 40, and at 72 years old, he is still full of energy. Blackmun's previous knowledge of Douglas was limited to hearsay, and he knew that he was a talented, but self-willed, eccentric justice.He was determined to get along well with Douglas, but he didn't know if he could do it.Douglas seldom spoke at meetings, more often than not he teased Berger.Blackmun later recalled that Berger would sometimes go into lengthy narratives and announce how he would vote.At this time, Douglas often speaks with disdain and expresses different views.For example, if Berger decided to uphold the original sentence, when it was Douglas' turn to speak, he would say, "Sir, after listening to your excellent reasons, I decided to vote to reverse the original sentence." 布伦南担任过新泽西州最高法院大法官，沃伦法院许多里程碑式判例，多由他运筹帷幄，甚至亲自执笔。他是一位极富个人魅力的民主党人士，也是大法官中惟一一位天主教徒。1956年大选中，艾森豪威尔为争取天主教选民，才提名他进入最高法院。 马歇尔只比布莱克门大四个月，在种族隔离的环境中长大。他是联邦最髙法院第一名黑人成员，也是民权运动英雄。16年前，正是在他的孜孜努力下，最高法院作出了“布朗诉教育委员会”这一伟大判决。从那之后，他先后担任过联邦上诉法院法官与首席政府律师，后者通常代表联邦政府在最高法院出庭。1967年，约翰逊总统提名他进人最高法院。布莱克门入院前，他是资历最浅的大法官。 至于其他大法官，布莱克门只与怀特略熟，因为后者经常参加第八巡回上诉法院的年度司法会议。不过，怀特并不是一个容易亲近的人，布莱克门并未将他视为朋友。怀特在最高法院担任过法官助理，读大学时曾是橄榄球明星，在耶鲁法学院期间，还打过橄榄球职业联赛。虽然怀特由肯尼迪总统任命，但他对于民权之外的议题，立场多趋于保守。 布莱克门对来自中西部地区的波特·斯图尔特更没有什么亲近感。斯图尔特出生于俄亥俄州一个富有的共和党之家，1954年被任命为位于辛辛那提市的第六巡回上诉法院法官时，他才39岁，是全国最年轻的联邦法官。四年后，他成为艾森豪威尔任内提名的最后一位最高法院大法官。在多数法律领域，斯图尔特都秉持中间偏保守派立场，尤其重视新闻自由，是媒体权利的坚决捍卫者。斯图尔特其实不太瞧得上沃伦·伯格，而在布莱克门看来，这种藐视态度甚至会延伸到自己身上。“我一直有种感觉，他好像总觉得我进人最高法院有点儿不那么名正言顺。”几年后，布莱克门回忆道。 所有大法官中，布莱克门最敬重雨果·布莱克与约翰·哈伦。84岁高龄的布莱克，1937年就进人最高法院，在最高法院的资历几乎与布莱克门的法律生涯一样长。布莱克曾是阿拉巴马州参议员，虽然是靠自学成才，但知识面十分广博。他用一种相对纯粹的立场诠释宪法，认为宪法对言论自由的保护是绝对的。在解释宪法第一修正案关于“国会不得立法”侵犯言论自由或出版自由的规定时，布莱克坚持认为：“不得立法就是不得立法。”布莱克门履任之初，布莱克曾造访他的办公室，并提供了一些建议：“行事要攻其要害。别总临事不决。表达观点时要如水晶般透彻明亮。” 哈伦的个性非常与众不同，他从不执拗行事，喜欢就事论事，因地制宜。他的祖父约翰·马歇尔·哈伦一世也曾是最高法院大法官，在1896年确立“隔离但平等”这一种族歧视原则的“普莱西诉弗格森案”中，老哈伦投下了惟一一张反对票，从而青史留名。小哈伦毕业于普林斯顿大学，是罗德斯奖学金得主。他出任联邦上诉法院法官之前，曾是纽约律师界的大牌律师，多次代表大企业在最高法院出庭。布莱克门认识他时，哈伦的双目已近乎全盲，却以71岁高龄之躯，出色、高效地完成了大量工作。哈伦似乎比任何人都更能体会布莱克门的难处，毕竟他递补的席位已空置一年之久。布莱克门回忆说，大法官们有一次打算重新讨论4起案件，这4个案子之前的投票记录都维持在4票对4票的状态。哈伦当着布莱克门的面，拍了拍布伦南的肩膀，说道：“比尔，我们不如让哈里自己去开会，其他人都回办公室去，该干嘛继续干嘛。因为我们都知道该投什么票，只有他才是最终做决定的人。” 伯格指派布莱克门撰写“怀曼诉詹姆斯案”的判决意见。布莱克门草拟的初稿在大法官中传阅了六周，多数方其他大法官都很快表示加入。布莱克门迅速发现，“加入”（Join)这个词，在最高法院内具有非同寻常的含义。一位大法官如果表示正式同意某人的判决意见，就会给意见作者发函，并标注“请加入我”(Please join me)字样。“加入”在此是及物动词，意思是“算我一个”（Count me in)。布莱克门后来回忆说，当他第一次接到同僚发来的标有“加人”字样的备忘录时，“我根本不知道那是什么意思。我还以为是请我去他办公室讨论案子呢。”但是，“加人”一词有时也被当作名词使用。比如，大法官们协商如何投票时，有时会这样措辞：“如果您愿意做这些改动，您可以得到我的加入。”相反，一些人会拐弯抹角的表示：“我期待您的进一步完善”如果这么说，基本意味着拒绝加人，预示着一张反对票即将来临。 大法官们有时会放弃使用“加人我”这样的套话，利用传阅、讨论的机会，盛赞对方的意见“非常出色”道格拉斯曾试图限制这类说法。一次，他对拜伦·怀特解释说，虽然他很欣赏后者正被传阅的一份判决意见，但他仍然拒绝使用“华丽辞藻”加以评论，“之所以如此，并不是因为我不欣赏您的作品，而是基于如下两个原因：一、如果我直接恭维您，对其他人却不这么做，一些人内心会有想法；二、我个人还是喜欢'请加入我'这样的简单用法，其他的话纯属多余。” 在“怀曼案”的判决意见中，布莱克门指出，即使社工的家访是某种意义上的搜查，但是，这种行为“并没有达到无理搜查的程度”所以并不违反宪法第四修正案。他认真梳理了这起案件中的事实，发现这种家访都会预先发出书面通知，使用的是“怀柔手段”与“合理的管理方式”确保州政府的公共救助资金能够真正分发到确实需要救济的孩子们身上。“孩子们的利益才是重点所在。”在一个脚注中，他强调说，在这类案件中，社工们的定期探视是完全正当的，如果某人家中的婴儿有头颅骨折或疑似被老鼠啃咬的痕迹，就说明家长有疏于照顾或施虐之可能。“这该是一幅多么悲哀、不幸的画面。”他写道。 在给布莱克门的回函复本中，也有伯格的潦草笔迹，他写道：“哈里，这可是我一直期盼的良好开端，在这么重要的案子里，你能够提出脉络清晰，一针见血的意见。”但是，道格拉斯大法官可不这么看，他写道，独处且不受干扰的权利，与“其他基本权利同样重要”他同时追问，如果这个案子不是针对一位依靠社会救济的母亲，而是针对“一位社会名流、达官贵人或因谷物歉收而享受政府补贴的麦农，会不会有另外-种处理结果”不过，布莱克门的意见得到多数方六位大法官的支持，成为最高法院的最终意见。 1971年1月12日，最高法院宣布了“怀曼诉詹姆斯案”的判决，此案引起社会广泛关注。刚刚履任的布莱克门随之跃人公众视野。绝大多数评论家据此判决认为，布莱克门正是尼克松想找的那种能够“恢复法律与秩序”的保守派大法官。美联社认为，布莱克门“足以证明并非所有保守派法官都持南方腔调”布莱克门家乡的报纸《罗切斯特邮报》转载了美联社的通稿，并擅自加上了大字标题：“布莱克门比伯格还要保守：俩人正齐心协力令最高法院转向”在华盛顿，人们开始将伯格与布莱克门二人归为一类，并称他们为“明尼苏达双胞胎”（Minnesota Twins)。让布莱克门吃惊的是，他收到了许多群众来信。大部分人都称赞他的判决意见，有人还批判了现实中社会福利被滥用的情况。 “我从未后悔过自己在这起案件中的投票，如果重来一次，我会做出同样的决定。”布莱克门忆起自己在最高法院的早年生涯时，曾这么告诉访谈者。他还提到，布伦南大法官因为对他提出了异议意见，事后专门写来致歉函。布伦南解释说，依照传统，新任大法官的首个判决意见，应当是一个全体无异议的判决。“我根本不知道有这个传统，也不在乎他们会不会遵循这个传统。”布莱克门写道。 可是，别的案子就没这么顺利了。“贝尔德诉亚利桑那州律师公会案”(Baird v.State Bar of Arizona)与“斯托纳案”都是从1969年开庭期拖到现在的案子，都得由大法官们重新讨论，案件涉及业利桑那州、俄亥俄州对新任律师强制附加的条件。按照这两个州的相关规定，任何人若想取得律师执业资格，必须回答关于本人政治信仰的提问，比如是否有共产主义倾向。在1950年代，涉及这类议题的案件逐渐增多，许多官司都打到了最高法院。如今，这些关系到律师资格的准人条件，开始受到宪法第一修正案的挑战。 在亚利桑那州这起案件中，斯坦福法学院毕业生萨拉·贝尔德遵照律师公会指示，列出了自己16岁以来参加过的所有社会组织，但是，她拒绝回答任何关于她是否曾是共产党员，以及是否参加过任何“倡导用武力或暴力推翻美国政府”的组织的问题。基于上述原因，亚利桑那州律师公会拒绝批准她的执业申请。在俄亥俄州的案子里，马丁·斯托纳已被准许在纽约州执业，他向俄亥俄州律师公会的考官发誓，自己从未加入过共产党和任何社会主义组织，但是，俄亥俄州仍然驳回了他的申请，因为他拒绝列举“自己参加过的俱乐部、社区与组织的名称和地址”也不愿说出他是否曾经是“任何主张用武力推翻美国政府的组织”的成员。这两起案件都提起过上诉，但原告都在州最高法院败诉。 丹尼尔·埃德尔曼是布莱克门从第八巡回上诉法院带过来的法官助理，他建议布莱克门推翻原判，但布莱克门却有其他考虑。针对亚利桑那州那起案件，他在审前备忘录中写道：“我有点儿担心自己存有偏见，因为我一直认为，一个审查委员会有权行使调查权，被审查者如果想申请某种特权或进人某个特定执业领域，就不应该拒绝调查。”布莱克门承认，这类话题“特别敏感”“而且，我一直认为，这类案件的原告总是有所隐瞒，他们并不是从法理上对宪法第一、第五与第十四修正案确认的权利进行争辩，更多是把宪法作为一种自卫工具。他们试图从政府手中获取特权，却又总想着推翻政府。”他认为，拒绝颁发执业证，并没有侵犯这些律师们的信仰自由与结社自由，因为原告们完全可以自由信仰、结社，只是无法享有从事法律执业的特权。 事实证明，布莱克门的投票没有起到决定性作用，布莱克、道格拉斯、布伦南、斯图尔特与马歇尔五位大法官支持了原告的诉讼请求。作为多数方最资深的大法官，布莱克决定亲自撰写判决意见。布莱克门与伯格、哈伦、怀特成为少数方，他自告奋勇，申请撰写异议意见。 言词辩论之后不到一个月，布莱克撰写的多数意见已开始在大法官中传阅。但最高法院必须等到异议意见出炉，方可宣判，但是，直到这年年底，布莱克门仍未完稿。1971年1月11日，大法官们结束圣诞假期返回后，布莱克致信布莱克门，对他的拖延之举颇有微词：“我认为，在最高法院对某人提出批评，不算不当之举。目前，判决意见的传阅速度已大大落后于往年，我出任大法官33年以来，这种情况是极为罕见的。” 布莱克门非常难过。他没能在自己最尊敬的大法官面前好好表现，反而被他认定为不合格。更糟糕的是，雨果·布莱克将这封信交“全体会议成员传阅”（Members of the Conference)，这意味着整个最高法院都看到了信的内容，这令布莱克门非常尴尬。不仅如此，布莱克一不小心，居然将布莱克门（Blackmun)的名字拼成了布莱克曼（Blackman)。 布莱克门第二天就回了信，还将复本抄送其他大法官传阅。“接到您的便条后，我立刻意识到自己的问题。但是，有一个我原本以为显而易见的问题，有必要向全体成员解释。我猜测，我们中有些人或许忘记了，这个开庭期对我个人来说，存在许多困难，而且只是针对我个人而已。”布莱克门解释道，他正认真研究那17起等待再次审议的案件，而最高法院其他成员对这些案件的案情，已经烂熟于心。他内心很清楚，大家对这些案子分歧很大，正反双方势均力敌。他说：“这令我感受到很大压力，因为在多数案子里，我的投票都将起到决定性的作用。因此，与其他人相比，我必须在这类案件上投入更多精力。我想提醒其他大法官的是，这里的每一起案件对我都是全新的。”布莱克门最后说，“这封信只是从某一角度进行的自我申辩，期待在新的一年中，能听到大家对我的批评。” 布莱克当天下午就回了信，这回他把布莱克门的名字拼对了。“因为你那关键性的一票，你必须承担许多额外的工作，这令我非常感激。”他说，“无论如何，如果你认为我之前的话伤害到了你，请尽快把它们拋在脑后。” 布莱克之前那封信，明显违反了最高法院不成文的社交规则：大法官们可以旗帜鲜明地反对他人观点，但决不能批评个人。当然，他既然知其不应为而为之，肯定不是空穴来风。这位大法官已年老体衰，周遭世界亦发生着令他愤懑的改变。首先是伯格，接着是他那位“明尼苏达双胞胎”陆续混人最高法院。布莱克在参议院担任过民主党党鞭，是富兰克林·罗斯福最亲密的盟友之一，一直对自己曾与前任首席大法官厄尔·沃伦并肩作战而引以为豪。 在另一起被重新提起审议的案件，“罗杰斯诉贝尔伊案”(Rogers v.Bellei)中，内部分歧就更明显了。“罗杰斯案”的主要争议，在于判定移民法一项条款是否违宪，该条款主要适用于出身于海外，“父母一方为外国人，另一方为美国公民”的人。根据《移民与国籍法》这类人出生时即为美国公民，但是，如果他们在14岁到28岁期间，没有连续不间断地在美国本土居留5年以上，就将丧失公民权。一名31岁，出生于意大利的男子挑战了这一条款，此人年轻时来过美国5次，还曾登记入伍，最后却因为没有在美国连续居住满5年，而被剥夺了公民权。联邦地区法院根据最高法院1967年在“阿弗瑞姆诉拉斯克案”（Afroyim v.Rusk)中的判决，宣布上述条款违宪。在“阿弗瑞姆案”中，最高法院认为国会未经宪法授权，不得剥夺美国公民的公民权。该案上诉人是位归化入籍的美国公民，仅仅因为在以色列大选中参加投票，就被撤销了美国国籍。“阿弗瑞姆案”的判决结果为5票对4票，布莱克撰写了多数意见，哈伦撰写了异议意见。 1970年1月，“罗杰斯案”被第一次提交审议。布莱克代表那位意大利出生的原告，准备了一份判决意见。但是，由于当时大法官人数只有八人，形成了4票对4票的僵持局面，此案只好被安排至这年十一月再次审议。第二次审议前，布莱克将判决意见的复本送了一份给布莱克门，如果布莱克门接受其中观点，意味着这份意见将成为多数意见，反之，哈伦的意见将成为多数意见。现在，他不得不在最高法院两名大佬之间做出选择。布莱克，是位性情刚烈的老男人，往昔峥嵘岁月的化身，但其精力和影响力正随岁月流逝。哈伦有强烈的东部风格，他温文尔雅，处事谨慎，很有知识分子风度。通过审阅诉状，以及布莱克上一开庭期撰写的意见草稿，布莱克门决定倒向哈伦一方，他在审前备忘录中写道：“布莱克大法官的立场确实可圈可点，但我总认为他的判决理由实在过于牵强，总之，我并不觉得法令相关条款有什么过分之处。” 1971年3月15日，布莱克门将布莱克草拟的多数意见退了回去，并附上一份密封的亲笔信，上面写道：“我会将自己的意见交大家传阅，我恐怕会努力且小心翼翼地论证反方意见的合理性。必须承认，审理这样的案件是一项极富吸引力的工作。”布莱克门认为，限制公民的居留期限是“合理的”即使因违反相关规定而丧失公民权，也仅仅是失去了法律意义上的利益，不能因此提起宪法权利救济。 哈伦很快加入了布莱克门的意见，并称之为“一份非常出色且具有说服力的作品”伯格、斯图尔特和怀特也加入该意见。布莱克这下成了异议方，他简直有些怒不可遏了。“宪法对最高法院构成的界定并不'严谨'，”他写道，“相反，它设定了这样一个前提，最高法院的多数方仅凭他们对公平、合理、正确的理解，就能逐步改变宪法的含义，日复一日，月复一月，年复一年，皆是如此。只要我留在最高法院一天，我将倾尽全力，抵制那些由轮番上台的政客送进来的法官们，根据他们对'公平'和'合理'的理解，改变宪法的举动。” 布莱克是在四月初写下上面这番话的，当时，他提交的另一份多数意见的命运，也掌握在布莱克门手中。这起名为“帕默诉汤普森案”（Palmer v.Thompson)的案件的主要争议在于，密西西比州杰克逊市对五所市立游泳池制定的规章，是否违反了宪法平等保护条款。根据这些规章，五所游泳池有四所为白人专用，一所由黑人专用。市政府宁愿停用，也不愿各种族混用，他们的动机昭然若揭，就是要抵制种族融合。布莱克大法官认为，这类措施并不违宪，因为黑人白人的利益都受到了侵犯。“政府的行为对黑人的影响与对白人的影响并无二致。” 伯格、哈伦和斯图尔特都已加入布莱克的意见。布莱克门在投出关键性的第5票之前，一直被内心纠结困扰。他认为，有必要在协同意见中解释自己的想法，相关意见的草稿于4月27日发出传阅。他的协同意见开头就说：“对我来说，本案是本开庭期内最令我感到煎熬的案子，我必须坦白承认，自己仿佛钻进了一个死胡同。”他同时指出，他的内心经历了“长时间的痛苦挣扎”因此，他很可能在“犹豫不决的情况下，做出了不够恰当的判断。” 伯格退还布莱克门的意见初稿时，劝他“尽量少说”自己作出决定时有多么艰难，“你把结案过程说得那么艰难，让我内心非常不适，相信其他人也有同感。”伯格写道，“我希望你能言简意赅，直接说你遇到一件正反立场接近的疑难案件即可。”伯格接着提出自己的修改意见，他认为，应当把“在犹豫不决情况下做出了不够恰当的判断”这样的句子整个删掉，用一段话取而代之，即“这类案件之所以属于疑难案件，是因为正反双方都列举了许多理由。”布莱克门从雨果·布莱克那里也听到了这样的建议，不过，这份意见于6月14日正式发布时，他只在极细微的地方采纳了伯格的修改意见。 在那年春天的另外一个案子里，布莱克门不仅背离了布莱克的意愿，也与伯格立场迥异。这起名为“詹姆斯诉瓦尔提瑞纳案”(James v,Valtierra)的案件，对加州一部法规的合宪性提出了挑战。这部法规要求，州相关机构启动廉租房项目之前，必须经当地社区所有选民投票批准。联邦地方法院认为，这样的条款违反了宪法平等保护条款，对需要廉租房者施加了不当负担。在审前备忘录中，布莱克门倾向于维持下级法院判决，虽然从形式上看，这样的条款“似乎没什么危害性”但是，它显示了对“低收入阶层的排斥”他特别强调，这起官司打到最高法院时，加州已经有两个郡的公民投票废止了这类票选：“这类规定产·生的负担，通常都会落到那些真正需要帮助的人身上，说白了，就是穷人们。” 在大法官会议上，大家讨论的话题，集中在加州历史悠久的公民投票传统上。根据布莱克门当时的笔记，伯格是赞同公民投票的：“他们以民主方式违反平等保护条款的事情太多了，不如让加州人自己去折腾。”但是，布莱克门没有被说服。伯格、哈伦、斯图尔特、怀特都加入布莱克一方，布莱克门加入了马歇尔与布伦南的异议意见，由于道格拉斯未参与讨论，最后的结果是5票对3票。 虽然这个开庭期坎坷不断，但临到末了，一座险峻大山又不期而至，等待大法官们攀登：“五角大楼机密文件案”六月中旬，《纽约时报》开始连续刊登涉及美国越战机密文档的文章，《华盛顿邮报》随后跟进。两家报纸计划连载与47卷越战机密文档有关的长篇报导，这些档案是受国防部长罗伯特·麦克纳马拉的指令编撰的。尼克松政府立刻诉至法院，宣称相关报道泄露了军事机密，危及国家安全。位于纽约的第二巡回上诉法院随即发布临时禁令，限制媒体刊载。但是，哥伦比亚特区巡回上诉法院驳回了政府的申请。两家法院都在6月23日宣判，次日晚些时候，《纽约时报》与政府都上诉到最高法院，希望大法官们尽快介入这一争议。 四位大法官——布莱克、道格拉斯、布伦南与马歇尔——都认为没必要进行言词辩论。他们认为，最高法院应当根据宪法第一修正案，直接判定政府无权限制媒体刊载这些文章，针对《纽约时报》的禁令也必须马上撤销。但是，四位大法官找不到第五个人来支持他们的决定。布莱克门认为，应该给政府一个解释自身立场的机会。“我的第一反应与其他大法官并不相同，当事人应当有出庭的权利。”6月25日，他在审前备忘录中写道，“目前的情况，明显对政府不利，美国已承担了足够沉重的负担，无论如何，如果国家安全的确面临危险，应当给他们一个机会去证明。我完全可以预见，政府会输掉这场官司。但是，无论如何，我们不能因为存在这种可能性，就否认政府与其他任何当事人出庭的权利。” 伯格认为，这起案件可以等到十月再开庭审理，在此之前，最高法院应禁止媒体做进一步报道，哈伦、怀特、布莱克门都赞同他的意见。但是，斯图尔特想尽快听取各方意见，希望最高法院马上审理此案。经过据理力争，他终于如愿以偿，言词辩论被安排在6月26日举行，由于这天是周六，更显出庭审的特别。耶鲁法学院教授亚历山大·比克尔代表《纽约时报》出庭，布莱克门认为比克尔的表现相当出色，但是，代表政府出庭的首席政府律师欧文·格里斯沃尔德的说法也很具说服力。“我认为政府已经在外交领域证明了这起案件的特殊性，”布莱克门在庭审记录中写道，“确实存在危险——鲜活的生命——战争的延长——谁能预测到后果呢？” 四天后，1971年6月30日，最高法院宣布了对“《纽约时报》诉美国案”(New York Times v.United States)的判决。六位大法官认为，政府未能充分证明限制媒体言论的必要性，报纸可以继续报道相关内容。法院意见只有三段，而且没有签名，说明判决是大法官们的集体结论。六位大法官——布莱克、道格拉斯、布伦南、斯图尔特、怀特和马歇尔——分别发布了协同意见，解释自己的立场。布莱克门、伯格与哈伦也分别发布了异议意见。第一修正案毕竟只是美国宪法的其中一部分布莱克门在这份4页纸的异议意见中写道，“我们需要做的是权衡利弊，用与时俱进的适当标准，考虑媒体宽泛的出版权利与政府异常狭窄的规制权力之间的关系。”尽管布莱克门已经修正了自己的法官助理迈克尔·拉方德事前准备的初稿，在媒体权利之前加上了“宽泛的”在政府权力前面加上了“异常狭窄”的，但是，这样修饰语的改变，并没有减缓文中的批判语气。他的投票，更加剧了人们关于他只是“克隆”首席大法官立场的说法。 两个月前，由于布莱克门在加州廉租房案件中投了反对票。那段时间，他收到许多信件，其中多数都来自普通民众，人们表达了对他所持立场的失望。“我本以为你会是一位'严格释宪者'，”一封来自新泽西州的信上说，“如果第一修正案对你而言毫无意义，那宪法其余内容对你又有什么意义？严格释宪者？呸！你根本就是一个尼克松主义者。”一封寄自明尼阿波利斯的明信片上写着：“尼克松从代顿搞来两个打手，钻起铁环来，简直就像两只受过训练的狮子狗。” 本开庭期结束时，伯格给布莱克门发来一封亲笔信。“你不知道总统把你送到了什么地方，但我坚信你不会后悔。”他写道，“不仅如此，你在压力与挑战下已逐步成长起来，这让每位朋友都为你感到开心与自豪。这是'艰难'的一年，与往年相比，今年的最高法院有许多'大案子'。毫不客气地说，我们已经尽了本分。或许有人会对我们的判决指指点点，但我一点儿也不担心这些。”

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