The Decision Blow by Blow

The abortion cases were first argued before the court in December 1971; only four days later the Justices met in conference and decided to strike down anti-abortion laws by a surprisingly sturdy 5-2 margin. (The vacant seats of Hugo Black and John Harlan had not yet been filled.) Nonetheless, for 13 months while the issue raged in the presidential campaign and countless women suffered personal tragedy, the court remained silent. Why? The emotional contretemps that went on behind the scenes did not long remain a secret from knowledgeable court watchers. The dispute soon surfaced in the press.

THE difficulties began when Chief Justice Burger chose his old schoolmate and longtime friend, Harry Blackmun, to write the opinion. But Burger was one of the two dissenters, and as senior Justice in the majority, William O. Douglas had a traditional right to make the assignment. Thus several liberals feared that Blackmun had been chosen in defiance of the usual practice so that he could draw the opinion as narrowly as possible.

Blackmun temporarily calmed his colleagues by promising to write an opinion that would satisfy all concerned. But the Minnesotan is the slowest, most meticulous worker on the court by far, and long months passed before he finally circulated a draft of his opinion. When it came, it was not very good. Even Blackmun apparently agreed. In early June, with the court's term rapidly coming to an end, he announced he was withdrawing his decision, then asked that the abortion cases be held over for reargument in the fall. The request prompted an explosion of indignation. By now William Rehnquist and Lewis Powell had been seated, and the liberal majority worried that the new Justices' votes would be added to the two existing dissents. If that happened, they figured, Blackmun might then be persuaded by Burger, his "Minnesota twin," to switch and reverse the majority. Douglas went so far as to threaten that he would make public the entire business.

Ultimately, though, Douglas was persuaded to back down, and the decision was quietly delayed so that a full nine-man court could hear it. Harry Blackmun used his extra time assiduously. For all his slow pace, he is the court's hardest worker, always in his office by 7:30 a.m., never gone before 7 at night; he turns up Saturdays as well as occasional Sundays and also works at home. During his supposed vacation last summer, he was so concerned about the abortion decision that he spent a week researching the history of the subject at the Mayo Clinic's library.

After the rehearing last October, the majority grew, to the surprise of most liberals. The five previous votes held firm, and Powell joined them. Blackmun's rewritten and improved decision was soon ready, but now Burger was wavering. In a case of such significance, former Chief Justice Charles Evans Hughes had counseled, the Chief should lend his prestige to the majority--if his conscience could permit it and his vote would not change the outcome. Burger weighed the matter long and carefully, and at last decided to join his Minnesota colleague. The 7-2 tally was finally complete, and last week the justices filed solemnly into the courtroom to announce their verdict.

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