1 00:00:07,520 --> 00:00:12,120 Speaker 1: Episode ten, the conversation between Supreme Court expert Linda Greenhouse 2 00:00:12,200 --> 00:00:14,120 Speaker 1: and series creator Aaron Tracy. 3 00:00:20,400 --> 00:00:22,680 Speaker 2: I'm Mary Tracy, the creator and writer of the nine 4 00:00:22,720 --> 00:00:25,319 Speaker 2: episode audio drama you just heard. For this tenth and 5 00:00:25,360 --> 00:00:27,160 Speaker 2: final episode of the season, we're going to do something 6 00:00:27,160 --> 00:00:29,800 Speaker 2: a little different. The scripted portion of the podcast is 7 00:00:29,840 --> 00:00:32,800 Speaker 2: behind us. No more Maya Hawk or William H. Macy 8 00:00:33,080 --> 00:00:35,240 Speaker 2: or any of the other extraordinary actors from the show, 9 00:00:35,720 --> 00:00:39,760 Speaker 2: but in their place for this bonus Linda Greenhouse. Linda 10 00:00:39,920 --> 00:00:42,280 Speaker 2: is undoubtedly one of the world's experts on the Supreme 11 00:00:42,320 --> 00:00:45,440 Speaker 2: Court and on Harry Blackhaman in particular. She covered the 12 00:00:45,479 --> 00:00:48,000 Speaker 2: Supreme Court for three decades for The New York Times 13 00:00:48,200 --> 00:00:51,000 Speaker 2: and was awarded the Pulitzer Prize and Journalism for her coverage. 14 00:00:51,159 --> 00:00:53,400 Speaker 2: A little detail I love, by the way, when Linda 15 00:00:53,440 --> 00:00:56,760 Speaker 2: retired from the Times, seven of the nine sitting Supreme 16 00:00:56,800 --> 00:00:59,880 Speaker 2: Court justices attended a goodbye party for her. Linda all 17 00:01:00,120 --> 00:01:03,280 Speaker 2: read the book Becoming Justice Blackman, which was hugely helpful 18 00:01:03,320 --> 00:01:05,959 Speaker 2: to me in crafting the show. Linda is my colleague 19 00:01:06,000 --> 00:01:08,120 Speaker 2: here at Yale, where I'm in the English department, and 20 00:01:08,160 --> 00:01:10,800 Speaker 2: she teaches in the law school. She's about to join 21 00:01:10,840 --> 00:01:13,240 Speaker 2: me here on campus, and I truly could not be 22 00:01:13,280 --> 00:01:25,640 Speaker 2: more excited. So thanks for listening. Enjoy this bonus episode. 23 00:01:31,360 --> 00:01:33,160 Speaker 2: All right, so, Linda, one of the things I was 24 00:01:33,200 --> 00:01:34,959 Speaker 2: most interested in and that we deal with in the 25 00:01:34,959 --> 00:01:38,400 Speaker 2: first few episodes of the show, is that Harry never 26 00:01:38,880 --> 00:01:41,400 Speaker 2: wanted to be on the court. His best friend, Warren Berger, 27 00:01:41,959 --> 00:01:43,720 Speaker 2: seemed like the much more and of course correct me 28 00:01:43,720 --> 00:01:46,160 Speaker 2: if I'm wrong, but seemed like the much more ambitious 29 00:01:46,240 --> 00:01:48,400 Speaker 2: man wanted to have his place in history, very much 30 00:01:48,440 --> 00:01:51,160 Speaker 2: wanted to get to the Supreme Court. And Harry had 31 00:01:51,160 --> 00:01:53,280 Speaker 2: to be led kicking and screaming a little bit. Is 32 00:01:53,320 --> 00:01:53,680 Speaker 2: that true? 33 00:01:53,840 --> 00:01:55,840 Speaker 3: Yeah, I wouldn't say so much kicking and screaming, but 34 00:01:55,920 --> 00:02:00,160 Speaker 3: with great ambivalence. In a way, he kind of underestimated himself. 35 00:02:00,560 --> 00:02:03,320 Speaker 3: He was very smart. He was Assuma Cumeloud, a graduate 36 00:02:03,680 --> 00:02:07,000 Speaker 3: of Harvard, so you know, there was no moss growing 37 00:02:07,000 --> 00:02:12,160 Speaker 3: on him intellectually. But his personality was very diffident, and 38 00:02:12,520 --> 00:02:16,359 Speaker 3: he was happy living in Minneapolis and sitting on the 39 00:02:16,400 --> 00:02:19,840 Speaker 3: eighth Circuit and worked very hard. And one of the 40 00:02:19,840 --> 00:02:22,799 Speaker 3: things I found in his files was when he got 41 00:02:22,840 --> 00:02:26,600 Speaker 3: the offer, he took out a piece of notebook paper 42 00:02:26,639 --> 00:02:30,240 Speaker 3: and he wrote the pros and the cons of taking it, 43 00:02:30,280 --> 00:02:32,680 Speaker 3: and they were about equal. I wish I could side 44 00:02:32,720 --> 00:02:34,480 Speaker 3: off the top of my head with oh, well. 45 00:02:34,400 --> 00:02:36,160 Speaker 2: I put Actually, I think I can name a few 46 00:02:36,200 --> 00:02:37,119 Speaker 2: because I put them in the show. 47 00:02:37,200 --> 00:02:38,040 Speaker 3: Oh okay, okay. 48 00:02:38,080 --> 00:02:40,280 Speaker 2: The opening scene when we first meet Harry played by 49 00:02:40,320 --> 00:02:43,120 Speaker 2: William H. Masy is he's at a bar by himself, 50 00:02:43,160 --> 00:02:46,040 Speaker 2: waiting for Warren to show up, who's played by William Fickner, 51 00:02:46,320 --> 00:02:48,760 Speaker 2: and Harry is jotting down that list of pros and cons, 52 00:02:49,080 --> 00:02:51,840 Speaker 2: and so there are things like loss of contact with 53 00:02:51,919 --> 00:02:55,480 Speaker 2: friends and family was a con. Potentially it hurting his 54 00:02:55,560 --> 00:02:58,280 Speaker 2: relationship with Warren was a con. He didn't know how 55 00:02:58,280 --> 00:03:00,280 Speaker 2: the friendship would survive. That they were both in the court. 56 00:03:00,520 --> 00:03:01,560 Speaker 3: That was very precious. 57 00:03:08,200 --> 00:03:15,680 Speaker 4: Another drink, everybody, Hello, buddy, looks like you got a 58 00:03:15,680 --> 00:03:19,520 Speaker 4: lot more cons than pros. There? What your list on 59 00:03:19,560 --> 00:03:24,880 Speaker 4: the cocktail napkin? There? Here? Let me see cons? Loss 60 00:03:24,880 --> 00:03:29,720 Speaker 4: of contact with friends in my family? Please don't read that. Okay, 61 00:03:30,200 --> 00:03:34,160 Speaker 4: what's the list for? I'm I might be offered a job. 62 00:03:34,520 --> 00:03:37,680 Speaker 4: This is just this is how I chew things over 63 00:03:37,840 --> 00:03:41,960 Speaker 4: a job in this economy. Whatever it is, Buddy, I 64 00:03:42,080 --> 00:03:47,960 Speaker 4: take it. Mark I'll have whatever my buddy's drinking. Keep going. 65 00:03:55,560 --> 00:03:58,520 Speaker 2: So what can you tell us about Sarah as a person. 66 00:03:58,800 --> 00:04:02,000 Speaker 2: She seems like an unlike figure. Two have been involved 67 00:04:02,000 --> 00:04:04,560 Speaker 2: in the most controversial legal case of the twentieth century. 68 00:04:05,040 --> 00:04:08,200 Speaker 3: Yeah, I mean she didn't start out to be what 69 00:04:08,280 --> 00:04:12,640 Speaker 3: she became. She was kind of recruited by a women's 70 00:04:12,680 --> 00:04:16,280 Speaker 3: group in Austin, where she was living, who wanted advice 71 00:04:16,360 --> 00:04:21,080 Speaker 3: on birth control actually, which was once again a contested issue, 72 00:04:21,120 --> 00:04:25,159 Speaker 3: but was a contested issue back then, and this group 73 00:04:25,360 --> 00:04:28,359 Speaker 3: urged her to be part of a challenge to the 74 00:04:28,400 --> 00:04:32,120 Speaker 3: Texas abortion Law. The Texas abortion Law was one of 75 00:04:32,160 --> 00:04:36,640 Speaker 3: the very common laws that outlawed abortion except for circumstances 76 00:04:36,680 --> 00:04:40,200 Speaker 3: when a woman's life was endangered by the pregnancy. And 77 00:04:40,279 --> 00:04:42,599 Speaker 3: she didn't really know what to do. But she and 78 00:04:42,640 --> 00:04:45,440 Speaker 3: Linda Coffee had been classmates. I think Linda had been 79 00:04:45,440 --> 00:04:48,159 Speaker 3: a much better law student and have clerked on the 80 00:04:48,200 --> 00:04:51,120 Speaker 3: district court federal just record in Texas, which was a 81 00:04:51,160 --> 00:04:53,200 Speaker 3: big deal for a woman in those days. 82 00:04:53,279 --> 00:04:55,440 Speaker 2: Yeah, there were two of only five women in their 83 00:04:55,600 --> 00:04:56,760 Speaker 2: entire law school class. 84 00:04:57,040 --> 00:04:59,520 Speaker 3: Yeah, it speaks well of Sarah that she got into 85 00:04:59,640 --> 00:05:02,760 Speaker 3: law at the University of Texas, which was and still 86 00:05:02,839 --> 00:05:04,880 Speaker 3: is a very good law school. But Linda was the 87 00:05:04,880 --> 00:05:08,280 Speaker 3: one who was actually a practicing lawyer, and they became 88 00:05:08,520 --> 00:05:11,520 Speaker 3: partners in this enterprise. But I should just say there 89 00:05:11,520 --> 00:05:14,320 Speaker 3: were cases like this popping up all over the country. 90 00:05:15,200 --> 00:05:19,040 Speaker 3: The pipeline of courts all over the country were filling 91 00:05:19,120 --> 00:05:23,720 Speaker 3: up with challenges to various abortion laws, one of which 92 00:05:23,760 --> 00:05:28,520 Speaker 3: by that time actually has succeeded in California in state court, 93 00:05:28,560 --> 00:05:30,360 Speaker 3: not in a federal court. So there was a lot 94 00:05:30,400 --> 00:05:34,479 Speaker 3: going on, and there was no particular reason at the 95 00:05:34,520 --> 00:05:36,880 Speaker 3: beginning of this case to think that this was going 96 00:05:36,960 --> 00:05:40,840 Speaker 3: to be the one. There were actually better cases. I 97 00:05:40,880 --> 00:05:42,840 Speaker 3: hate to say that after all these years, but there 98 00:05:42,920 --> 00:05:46,840 Speaker 3: was a case that was developed by Yale Law School 99 00:05:47,400 --> 00:05:51,160 Speaker 3: female students and some Yale Law School professors, a case 100 00:05:51,160 --> 00:05:54,760 Speaker 3: that came to be known as Women against Connecticut on 101 00:05:54,839 --> 00:05:57,800 Speaker 3: behalf of a thousand plaintiffs. The official name of the 102 00:05:57,839 --> 00:06:01,240 Speaker 3: case is ably against Markel. That was in the pipeline 103 00:06:01,279 --> 00:06:03,760 Speaker 3: and just missed out. Rogue got there first. 104 00:06:03,880 --> 00:06:04,360 Speaker 2: Interesting. 105 00:06:04,520 --> 00:06:07,279 Speaker 3: Yeah, History's made up of so many contentiencies, and the 106 00:06:07,360 --> 00:06:19,320 Speaker 3: story of abortion in America is certainly one of them. 107 00:06:19,360 --> 00:06:20,080 Speaker 5: What's the case? 108 00:06:20,320 --> 00:06:20,919 Speaker 2: Does it matter? 109 00:06:21,080 --> 00:06:22,440 Speaker 1: It's a real case, Sarah. 110 00:06:22,440 --> 00:06:22,960 Speaker 2: What is it. 111 00:06:23,080 --> 00:06:30,599 Speaker 1: We're challenging the Texas abortion laws in federal court. Don't 112 00:06:30,680 --> 00:06:32,720 Speaker 1: laugh at me, Linda. How often do people with our 113 00:06:32,800 --> 00:06:37,240 Speaker 1: chromosomes get actual legal work in this state? I just 114 00:06:37,279 --> 00:06:39,479 Speaker 1: wish someone had warned me before three years of law 115 00:06:39,480 --> 00:06:41,000 Speaker 1: school that no one would ever hire. 116 00:06:40,800 --> 00:06:44,120 Speaker 5: Me, Sarah. Everyone warned you. 117 00:06:44,720 --> 00:06:47,240 Speaker 1: And I know I'm not in the movement, okay, but 118 00:06:47,800 --> 00:06:50,440 Speaker 1: this is a great opportunity to get some legal experience. 119 00:06:51,120 --> 00:06:56,560 Speaker 5: I know it is. That's not why I laughed. I've 120 00:06:56,560 --> 00:06:58,040 Speaker 5: been working on the same thing, Sarah. 121 00:06:58,120 --> 00:06:59,000 Speaker 1: What are you talking about. 122 00:06:59,279 --> 00:07:01,359 Speaker 5: I haven't gotten far. I had this day job, but 123 00:07:01,480 --> 00:07:04,400 Speaker 5: I do have some research and a lot of ideas. 124 00:07:04,720 --> 00:07:06,520 Speaker 1: I knew I came to the right person. 125 00:07:06,920 --> 00:07:10,360 Speaker 5: Don't get excited. We're definitely going to lose. 126 00:07:10,800 --> 00:07:13,680 Speaker 1: Who cares. I do have one question. I'm hoping you 127 00:07:13,720 --> 00:07:15,400 Speaker 1: can help me with a right off the back though, Linda. 128 00:07:16,160 --> 00:07:16,600 Speaker 5: And what's that? 129 00:07:17,120 --> 00:07:18,360 Speaker 1: What the hell do we do? First? 130 00:07:31,520 --> 00:07:34,240 Speaker 2: What can you tell us about Sarah and Linda as partners? 131 00:07:34,400 --> 00:07:36,600 Speaker 2: The way I dramatized it, which is of course pulled 132 00:07:36,600 --> 00:07:39,320 Speaker 2: from my research, is that they were a little bit 133 00:07:39,320 --> 00:07:42,320 Speaker 2: similar to Warren and Harry and that they had very 134 00:07:42,320 --> 00:07:46,240 Speaker 2: different strengths, very different personalities. It feels like Linda was 135 00:07:46,320 --> 00:07:49,960 Speaker 2: fantastic with paperwork and with research, and as you said, 136 00:07:50,000 --> 00:07:52,640 Speaker 2: she had clerked for a judge before, so she knew 137 00:07:52,640 --> 00:07:57,200 Speaker 2: court procedure, whereas Sarah was someone who could captivate. She 138 00:07:57,280 --> 00:07:58,920 Speaker 2: was someone who could speak in front of a judge 139 00:07:58,960 --> 00:07:59,960 Speaker 2: and really get their ties. 140 00:08:01,000 --> 00:08:04,640 Speaker 3: Yeah, she was missed outside and Linda was the inside, 141 00:08:04,840 --> 00:08:08,440 Speaker 3: heavy lifter of the work. It was certainly a functional partnership. 142 00:08:08,480 --> 00:08:12,000 Speaker 3: It was unequal in some ways. Sarah in her post 143 00:08:12,080 --> 00:08:14,679 Speaker 3: row life was really out there swinging for the fences 144 00:08:14,760 --> 00:08:18,560 Speaker 3: out on the speaking circuit and lionized in feminist circles, 145 00:08:19,080 --> 00:08:21,400 Speaker 3: and Linda really disappeared from history. 146 00:08:21,840 --> 00:08:26,000 Speaker 2: Yeah. And in the show, the performances are extraordinary. Maya 147 00:08:26,080 --> 00:08:30,880 Speaker 2: Hawk plays Sarah Weddington, Abigail Breslin plays Linda Coffee. They're 148 00:08:30,880 --> 00:08:34,000 Speaker 2: both just so incredibly great at capturing those different sorts 149 00:08:34,000 --> 00:08:36,160 Speaker 2: of personalities that the two had. I want to talk 150 00:08:36,160 --> 00:08:40,240 Speaker 2: a little bit about what the actual work was because 151 00:08:40,880 --> 00:08:43,520 Speaker 2: I'm a huge fan of courtroom dramas. Most of my 152 00:08:43,520 --> 00:08:47,280 Speaker 2: favorite movies in fact are courtroom dramas. But setting a 153 00:08:47,320 --> 00:08:49,920 Speaker 2: show in the Supreme Court is very different. In a 154 00:08:49,960 --> 00:08:54,160 Speaker 2: courtroom drama, you get witnesses and you get cross examinations, 155 00:08:54,400 --> 00:08:58,120 Speaker 2: and you get interplay among the lawyers and the judge, 156 00:08:58,120 --> 00:09:01,760 Speaker 2: and a Supreme Court drama, by necessity is very different. 157 00:09:01,880 --> 00:09:05,319 Speaker 2: So in the show, we certainly recreated some of it 158 00:09:05,400 --> 00:09:10,160 Speaker 2: where Sarah and her opposition are giving their oral arguments 159 00:09:10,200 --> 00:09:12,160 Speaker 2: and I decided to cut back and forth between them 160 00:09:12,160 --> 00:09:14,319 Speaker 2: and the justices are reading questions on them. But can 161 00:09:14,320 --> 00:09:16,520 Speaker 2: you tell us a little bit about the differences between 162 00:09:16,880 --> 00:09:18,720 Speaker 2: what goes on in Supreme Court and what goes on 163 00:09:18,840 --> 00:09:19,839 Speaker 2: in a normal court of law. 164 00:09:20,400 --> 00:09:22,720 Speaker 3: So I'll talk about the Supreme Court as it was, 165 00:09:23,520 --> 00:09:25,160 Speaker 3: not the Supreme Court as it is. I have to 166 00:09:25,200 --> 00:09:28,880 Speaker 3: say post pandemic arguments that the court have become really 167 00:09:28,920 --> 00:09:31,240 Speaker 3: wild and wooly and they're not like they were, by 168 00:09:31,280 --> 00:09:35,800 Speaker 3: which I mean in the pre pandemic days, a Supreme 169 00:09:35,840 --> 00:09:40,240 Speaker 3: Court argument lasted for an hour a half hour per side, 170 00:09:40,880 --> 00:09:43,960 Speaker 3: and the one who went first noticed the petitioner or 171 00:09:43,960 --> 00:09:46,000 Speaker 3: in the case of rob Is that the appellant would 172 00:09:46,040 --> 00:09:48,960 Speaker 3: save five minutes at the end for rebuttal. And it 173 00:09:49,040 --> 00:09:52,679 Speaker 3: was very scripted in that way. And when your red 174 00:09:52,800 --> 00:09:55,000 Speaker 3: light went on, that meant your thirty minutes were up, 175 00:09:55,040 --> 00:09:58,280 Speaker 3: you stopped talking, or the Chief Justice was going to say, counsel, 176 00:09:58,360 --> 00:10:02,160 Speaker 3: your time has expired. So there was not in real life, 177 00:10:02,240 --> 00:10:04,280 Speaker 3: you know, kind of back and forth, but there was 178 00:10:04,320 --> 00:10:08,600 Speaker 3: a lot of questioning, and justices could jump in at 179 00:10:08,640 --> 00:10:12,240 Speaker 3: any time, and that's still the case, of course, and 180 00:10:12,640 --> 00:10:16,840 Speaker 3: just try to ask hypothetical questions, the purpose being the 181 00:10:16,880 --> 00:10:19,520 Speaker 3: court knows now. Row might have been a little different 182 00:10:19,520 --> 00:10:23,400 Speaker 3: because the Court knew it was embarking into kind of 183 00:10:23,480 --> 00:10:28,200 Speaker 3: unknown territory. But in the typical case, the Court doesn't 184 00:10:28,280 --> 00:10:32,160 Speaker 3: view itself as resolving a particular dispute, but really as 185 00:10:32,240 --> 00:10:36,400 Speaker 3: the lawgiver for the for the whole system. So they 186 00:10:36,440 --> 00:10:38,240 Speaker 3: don't just want to know what to do with you. 187 00:10:38,880 --> 00:10:41,720 Speaker 3: They want to know, if we do what you want 188 00:10:41,800 --> 00:10:44,080 Speaker 3: us to do with you, what are the implications for 189 00:10:44,160 --> 00:10:47,240 Speaker 3: the next case. Where does this go? What road should 190 00:10:47,320 --> 00:10:49,920 Speaker 3: we go down that you're offering us, What road had 191 00:10:49,960 --> 00:10:52,640 Speaker 3: we better avoid? Or we're going to open up a 192 00:10:52,679 --> 00:10:57,360 Speaker 3: whole hornet's nest of new legal problems. That's the reason 193 00:10:57,440 --> 00:10:58,439 Speaker 3: for the questioning. 194 00:10:59,080 --> 00:11:02,000 Speaker 2: Really, yeah, I went to visit the Supreme Court. It's 195 00:11:02,080 --> 00:11:04,080 Speaker 2: research for writing the show, and one of the things 196 00:11:04,120 --> 00:11:07,120 Speaker 2: that struck me the most was when you were standing 197 00:11:07,320 --> 00:11:10,920 Speaker 2: at the advocate's lectern and you reach out your hand, 198 00:11:11,240 --> 00:11:14,240 Speaker 2: if the Chief Justice leaned down or reach out his hand, 199 00:11:14,440 --> 00:11:17,160 Speaker 2: you could shake. That's how close you are to the bench. 200 00:11:17,520 --> 00:11:21,760 Speaker 2: And for Sarah at twenty six years old, never having 201 00:11:22,000 --> 00:11:24,240 Speaker 2: taken on a contested case before, it must have been 202 00:11:24,320 --> 00:11:27,360 Speaker 2: absolutely terrifying for her to stand at the lectern with 203 00:11:27,480 --> 00:11:31,280 Speaker 2: Thurgood Marshall raining down questions and Warren Berger and Harry Blackman. 204 00:11:31,400 --> 00:11:33,520 Speaker 2: That must have just been so overwhelming. 205 00:11:33,720 --> 00:11:33,840 Speaker 1: Well. 206 00:11:33,920 --> 00:11:37,200 Speaker 3: Yeah. In fact, Ruth Ginsberg, who had many arguments before 207 00:11:37,240 --> 00:11:40,280 Speaker 3: the Supreme Court when she was a civil rights advocate 208 00:11:40,320 --> 00:11:43,240 Speaker 3: before she came a judge, talked about how intimidating it 209 00:11:43,360 --> 00:11:45,960 Speaker 3: was and how nervous she was, and if she had 210 00:11:45,960 --> 00:11:49,800 Speaker 3: an afternoon argument she never had lunch. Really, yes, I 211 00:11:49,840 --> 00:11:52,200 Speaker 3: think it's a very scary thing. There's a good new 212 00:11:52,240 --> 00:11:55,040 Speaker 3: book out actually people might like to know about. It's 213 00:11:55,120 --> 00:11:58,040 Speaker 3: called in the Chamber of the Appellate Gods and is 214 00:11:58,280 --> 00:12:02,680 Speaker 3: filewoman who had her one Supreme Court argument would turn 215 00:12:02,720 --> 00:12:05,600 Speaker 3: out to be a big criminal case, a case called 216 00:12:05,640 --> 00:12:08,960 Speaker 3: a prendy, And she writes about it's almost like kind 217 00:12:08,960 --> 00:12:12,920 Speaker 3: of diary entries of her preparation and her terror of 218 00:12:12,960 --> 00:12:15,440 Speaker 3: getting up there representing the state of New Jersey. She 219 00:12:15,520 --> 00:12:18,679 Speaker 3: was a state lawyer, so yeah, there's nobody who can 220 00:12:18,880 --> 00:12:20,240 Speaker 3: take it casually. 221 00:12:20,000 --> 00:12:22,360 Speaker 2: And it must have been all the more disconcerting for Sarah. 222 00:12:22,400 --> 00:12:25,120 Speaker 2: I think you write about in your book about Blackman Somewhere. 223 00:12:25,120 --> 00:12:29,320 Speaker 2: I read it that Sarah before argument was looking for 224 00:12:29,400 --> 00:12:32,400 Speaker 2: the restroom, but of course there was no women's restroom 225 00:12:32,480 --> 00:12:34,280 Speaker 2: in the layer's lounge, and so she had to go 226 00:12:34,280 --> 00:12:35,720 Speaker 2: all the way down to the basement. There were so 227 00:12:35,760 --> 00:12:37,959 Speaker 2: few women who worked at the Supreme Court, and I'm 228 00:12:37,960 --> 00:12:39,560 Speaker 2: sure that frazzled her a little bit too. 229 00:12:40,160 --> 00:12:43,280 Speaker 3: Yeah, and as you said, with the potential handshaking between 230 00:12:43,320 --> 00:12:46,920 Speaker 3: the advocate and the chief Justice. It's a grand chamber, 231 00:12:46,960 --> 00:12:50,400 Speaker 3: but it's very intimate. I mean, it holds about maybe 232 00:12:50,440 --> 00:12:54,199 Speaker 3: four hundred people, which is not small, but the kind 233 00:12:54,280 --> 00:12:58,000 Speaker 3: of way it's arranged, there's an intimacy to it, much 234 00:12:58,040 --> 00:12:59,680 Speaker 3: more so than people would expect. 235 00:12:59,679 --> 00:13:02,520 Speaker 2: I think, yeah, totally. The entire courthouse is so interesting. 236 00:13:02,600 --> 00:13:06,160 Speaker 2: Each justice's chambers are much smaller than I would have imagined. 237 00:13:06,720 --> 00:13:09,920 Speaker 2: There are all sorts of very old fashioned parts to it. 238 00:13:10,000 --> 00:13:12,440 Speaker 2: There's a spiral staircase in the back where I set 239 00:13:12,480 --> 00:13:16,240 Speaker 2: a scene, and the main hallway is so grand with 240 00:13:16,360 --> 00:13:19,040 Speaker 2: busts of all the former justices, it can be an 241 00:13:19,080 --> 00:13:20,000 Speaker 2: intimidating place. 242 00:13:20,160 --> 00:13:22,640 Speaker 3: I once tagged along when I was a reporter at 243 00:13:22,679 --> 00:13:26,280 Speaker 3: the court, tagged along on a public tour just to 244 00:13:26,440 --> 00:13:30,079 Speaker 3: see what the public was told. But we were taken 245 00:13:30,160 --> 00:13:34,360 Speaker 3: up into the chamber, which has, as you saw, long 246 00:13:34,840 --> 00:13:38,800 Speaker 3: red velvet curtains ceiling to floor curtains, and the tour 247 00:13:38,840 --> 00:13:43,199 Speaker 3: guide said, now on these curtains are the longest zippers 248 00:13:43,280 --> 00:13:50,920 Speaker 3: in the world. I remember hearing that, thinking, so, you say, I. 249 00:13:50,880 --> 00:13:52,560 Speaker 2: Don't know how anybody can prove that. That is a 250 00:13:52,760 --> 00:13:55,400 Speaker 2: very interesting fact to brag about. That does remind me 251 00:13:55,400 --> 00:13:57,600 Speaker 2: that there's one very strange setting where I set a 252 00:13:57,600 --> 00:14:01,960 Speaker 2: couple scenes. There's a robing room right backstage. Reminds me 253 00:14:02,120 --> 00:14:04,440 Speaker 2: of the dugout before players take the field in a 254 00:14:04,440 --> 00:14:07,320 Speaker 2: baseball game. This is where justice is. As I say this, 255 00:14:07,400 --> 00:14:09,720 Speaker 2: it almost feels like it can't be true, but justices 256 00:14:09,920 --> 00:14:12,720 Speaker 2: have sort of lockers and they put on their robes 257 00:14:12,760 --> 00:14:15,160 Speaker 2: back there before going out into court. Is that right? 258 00:14:15,640 --> 00:14:16,000 Speaker 4: Yeah? 259 00:14:16,120 --> 00:14:18,240 Speaker 3: Yeah, So they have clothes under their Rubes. 260 00:14:18,960 --> 00:14:21,640 Speaker 2: But yes, and are they just chatting back there about 261 00:14:21,640 --> 00:14:24,200 Speaker 2: what's about to happen. I mean it feels so I 262 00:14:24,200 --> 00:14:26,280 Speaker 2: don't know something about It feels so much like a 263 00:14:26,360 --> 00:14:30,120 Speaker 2: sport rather than these distinguished justices that we're used to imagining. 264 00:14:30,600 --> 00:14:33,520 Speaker 3: I don't actually think they're chatting. If they're chatting, it's 265 00:14:33,560 --> 00:14:36,160 Speaker 3: not about the cases they're about to hear. I think 266 00:14:36,200 --> 00:14:40,000 Speaker 3: that's the norm at the court that they don't chat 267 00:14:40,240 --> 00:14:43,000 Speaker 3: in advance. They do their homework in advance. The Supreme 268 00:14:43,080 --> 00:14:45,720 Speaker 3: Court's what is known as a hot bench, and that 269 00:14:45,800 --> 00:14:49,280 Speaker 3: doesn't mean what it sounds like. It doesn't mean they're 270 00:14:49,360 --> 00:14:51,880 Speaker 3: yelling and screaming and throwing things. A hot bench means 271 00:14:52,200 --> 00:14:56,040 Speaker 3: they come unprepared, they've done their homework, as opposed to 272 00:14:56,720 --> 00:14:59,760 Speaker 3: there were courts where the notion is, we're not going 273 00:14:59,800 --> 00:15:02,120 Speaker 3: to do anything in advance. Let's just see how the 274 00:15:02,200 --> 00:15:04,680 Speaker 3: argument goes and how the argument strikes us. They don't 275 00:15:04,720 --> 00:15:06,280 Speaker 3: schmooze about it in real time. 276 00:15:06,560 --> 00:15:10,400 Speaker 2: So tell me about the relationship between Harry and Warren, 277 00:15:10,800 --> 00:15:13,640 Speaker 2: because I'm completely fascinated by it. One of the things 278 00:15:13,640 --> 00:15:15,560 Speaker 2: that first made me want to write the show was 279 00:15:15,600 --> 00:15:18,760 Speaker 2: when I realized that the author of Rovi Wade on 280 00:15:18,760 --> 00:15:21,840 Speaker 2: the Court was Harry Blackman, whose best friend, his life 281 00:15:21,920 --> 00:15:24,320 Speaker 2: long best friend, was the Chief Justice. 282 00:15:24,600 --> 00:15:27,160 Speaker 3: Right so they grew up together in the Saint Paul. 283 00:15:27,480 --> 00:15:31,000 Speaker 3: They came from quite different backgrounds and had quite different 284 00:15:31,400 --> 00:15:36,000 Speaker 3: trajectories as young people. Harry's family had very little money, 285 00:15:36,040 --> 00:15:39,840 Speaker 3: but they had some and he goes off to Harvard 286 00:15:39,920 --> 00:15:43,720 Speaker 3: on a Harvard Club of Minneapolis scholarship, and that was 287 00:15:43,760 --> 00:15:48,360 Speaker 3: a real kind of bursting out of the rather narrow 288 00:15:48,680 --> 00:15:54,280 Speaker 3: circumstances of his childhood. And Berger didn't have that leap 289 00:15:54,400 --> 00:15:58,600 Speaker 3: to make. Harry always loved medicine, and he actually wanted 290 00:15:58,640 --> 00:16:01,840 Speaker 3: to go to medical school, but that would have required 291 00:16:02,080 --> 00:16:06,800 Speaker 3: staying longer as an undergrad and taking some of the 292 00:16:06,840 --> 00:16:11,120 Speaker 3: requisite science courses that he hadn't taken, and so law 293 00:16:11,240 --> 00:16:13,080 Speaker 3: was really his kind of second choice. But once he 294 00:16:13,200 --> 00:16:17,120 Speaker 3: made that choice, and he had a nice clerkship, not 295 00:16:17,280 --> 00:16:20,680 Speaker 3: in the Supreme Court but lower federal court clerkship, and 296 00:16:20,760 --> 00:16:23,000 Speaker 3: a good law practice, and that's what he was devoting 297 00:16:23,040 --> 00:16:29,200 Speaker 3: himself to. Berger decided to make his way in Republican politics. 298 00:16:30,080 --> 00:16:33,320 Speaker 3: And of course Republican politics in Minnesota are not the 299 00:16:33,360 --> 00:16:37,160 Speaker 3: Republican politics that we see today, but he was certainly 300 00:16:37,160 --> 00:16:41,880 Speaker 3: on the conservative side. Nonetheless, he ingratiated himself to Dwight 301 00:16:41,920 --> 00:16:46,200 Speaker 3: Eisenhower at the Republican National Convention in nineteen fifty two 302 00:16:46,560 --> 00:16:50,200 Speaker 3: when Eisenhower had a serious opponent for the nomination. Taft 303 00:16:50,480 --> 00:16:56,080 Speaker 3: and Berger was quite influential in throwing the convention to Eisenhower. 304 00:16:56,160 --> 00:16:58,440 Speaker 3: And he got his reward, which was to come to 305 00:16:58,560 --> 00:17:02,240 Speaker 3: Washington and significant job in the Justice Department as an 306 00:17:02,280 --> 00:17:05,600 Speaker 3: assistant Attorney General. And you know then he was often 307 00:17:05,680 --> 00:17:08,280 Speaker 3: running and he got a seat on the DC Circuit, 308 00:17:08,359 --> 00:17:12,120 Speaker 3: often called, I think with reason, the second most important 309 00:17:12,160 --> 00:17:16,119 Speaker 3: federal court in the country, second only to the Supreme Court. 310 00:17:16,720 --> 00:17:19,639 Speaker 3: And he almost immediately started lobbying to get on the 311 00:17:19,640 --> 00:17:23,440 Speaker 3: Supreme Court. He went around the country giving speeches, very 312 00:17:23,480 --> 00:17:27,160 Speaker 3: conservative law and order type of speeches, and things broke 313 00:17:27,200 --> 00:17:31,200 Speaker 3: his way, and Richard Nixon got elected and or Warren retired, 314 00:17:31,440 --> 00:17:34,159 Speaker 3: Nixon had a vacancy to fill for Chief Justice, and 315 00:17:35,119 --> 00:17:39,080 Speaker 3: there was Warren Berger with his hand up and was 316 00:17:39,240 --> 00:17:42,479 Speaker 3: a very attractive candidate from Nixon's point of view. So 317 00:17:42,560 --> 00:17:43,439 Speaker 3: that was his story. 318 00:17:43,920 --> 00:17:46,160 Speaker 2: And then when he was on the court, a vacancy 319 00:17:46,200 --> 00:17:51,119 Speaker 2: opened up and Nixon's first two nominees to fill that 320 00:17:51,240 --> 00:17:54,439 Speaker 2: vacancy both fell in the Senate, and so Nixon was 321 00:17:54,480 --> 00:17:57,800 Speaker 2: desperate to find someone I guess you tell me if 322 00:17:57,800 --> 00:18:01,040 Speaker 2: I'm wrong, but to find someone uncontroversial who could fill 323 00:18:01,119 --> 00:18:04,240 Speaker 2: that third seat. And Warren whispered to his buddy Nixon, 324 00:18:04,960 --> 00:18:07,320 Speaker 2: my best friend from childhood is your guy. 325 00:18:07,760 --> 00:18:11,800 Speaker 3: And Blackman was totally uncontroversial, and that he was totally 326 00:18:11,840 --> 00:18:15,040 Speaker 3: unknown and not on anybody's screen didn't push any of 327 00:18:15,080 --> 00:18:19,800 Speaker 3: the hot buttons that Hainesworth and Carswill that defeated nominees 328 00:18:19,960 --> 00:18:26,280 Speaker 3: had encountered opposition from the Democratic controlled Congress, So yeah, 329 00:18:26,359 --> 00:18:27,480 Speaker 3: why not Harry Blackman. 330 00:18:28,160 --> 00:18:30,080 Speaker 2: It's such a great irony and so great for the 331 00:18:30,119 --> 00:18:34,320 Speaker 2: drama that Harry Blackman was brought onto the Court because 332 00:18:34,359 --> 00:18:37,760 Speaker 2: he was incredibly uncontroversial that he might actually get through 333 00:18:38,280 --> 00:18:39,920 Speaker 2: and of course ended up being one of the most 334 00:18:39,920 --> 00:18:44,360 Speaker 2: controversial justices of all time because he authored the decision 335 00:18:44,600 --> 00:18:45,760 Speaker 2: in Roe v. Wade. 336 00:18:45,920 --> 00:18:50,080 Speaker 3: There's so many ironies, because of course Roe wasn't Harry 337 00:18:50,160 --> 00:18:54,120 Speaker 3: Blackman alone. It was a seven to two decision. If 338 00:18:54,119 --> 00:18:56,600 Speaker 3: you ask most people just walking down the street who 339 00:18:56,600 --> 00:18:58,639 Speaker 3: think they know anything about the Supreme Court, what was 340 00:18:58,680 --> 00:19:01,800 Speaker 3: the vote in row against Wade. I guarantee they would 341 00:19:01,760 --> 00:19:04,280 Speaker 3: say five to four, right, But it was seven to two, 342 00:19:04,280 --> 00:19:09,200 Speaker 3: including three of Nixon's four appointees, including warren Berger, who 343 00:19:09,240 --> 00:19:13,119 Speaker 3: is the one who assigned Blackman to this task. Although 344 00:19:13,320 --> 00:19:16,480 Speaker 3: black Men forever in history will be known as the 345 00:19:16,600 --> 00:19:20,639 Speaker 3: justice who wrote against Wade, it was a collective effort 346 00:19:20,840 --> 00:19:23,199 Speaker 3: and everybody else kind of skated free, and he's the 347 00:19:23,200 --> 00:19:24,560 Speaker 3: one who got stuck with it. Right. 348 00:19:24,640 --> 00:19:26,359 Speaker 2: Yeah, And let's talk about that for a second, because 349 00:19:26,400 --> 00:19:28,040 Speaker 2: I make a meal out of that in the final 350 00:19:28,080 --> 00:19:30,680 Speaker 2: few episodes as black Man is trying to win votes 351 00:19:30,720 --> 00:19:34,159 Speaker 2: to his side. First, why did warren Berger assign the 352 00:19:34,200 --> 00:19:37,080 Speaker 2: decision of Rovie Wade to black Men? He had never 353 00:19:37,119 --> 00:19:40,560 Speaker 2: written a major decision before. Why give him the abortion 354 00:19:40,640 --> 00:19:42,520 Speaker 2: controversy for his first thing. 355 00:19:42,920 --> 00:19:45,960 Speaker 3: It's a mystery that's never been quite explained. But I 356 00:19:46,000 --> 00:19:49,760 Speaker 3: think we have to understand the context, and the context 357 00:19:49,880 --> 00:19:53,879 Speaker 3: is a little bit counterintuitive. The Court had an awful 358 00:19:53,880 --> 00:19:57,800 Speaker 3: lot on his plate, and abortion was not the hot 359 00:19:57,840 --> 00:20:02,680 Speaker 3: issue that it then became after the careful cultivation by 360 00:20:02,680 --> 00:20:06,720 Speaker 3: the Republican Party to turn it into the culture war 361 00:20:06,840 --> 00:20:10,800 Speaker 3: issue of our time. It was not that. Actually there 362 00:20:10,920 --> 00:20:15,320 Speaker 3: was a fairly wide consensus in the country, everybody except 363 00:20:15,359 --> 00:20:20,600 Speaker 3: the bishops, that it was time to modernize the era 364 00:20:20,920 --> 00:20:25,359 Speaker 3: of the criminalization of abortion. So the court knew it 365 00:20:25,400 --> 00:20:27,119 Speaker 3: was a bit of a hot potato, but they had 366 00:20:27,160 --> 00:20:30,199 Speaker 3: a lot of hot potatoes in those days, largely with 367 00:20:30,440 --> 00:20:35,879 Speaker 3: criminal law, with the civil rights cases, religion, prayer and schools. 368 00:20:35,960 --> 00:20:38,400 Speaker 3: A lot of stuff was going on. You know, everybody 369 00:20:38,600 --> 00:20:41,160 Speaker 3: gets their share of opinions at the court. The way 370 00:20:41,160 --> 00:20:45,159 Speaker 3: the court works is it sits in two week argument 371 00:20:45,240 --> 00:20:50,640 Speaker 3: sessions scattered throughout the term, and every justice is supposed 372 00:20:50,680 --> 00:20:54,159 Speaker 3: to get roughly the same number of opinion assignments for 373 00:20:54,320 --> 00:20:58,320 Speaker 3: every one of the two week sittings. And so I 374 00:20:58,400 --> 00:21:01,960 Speaker 3: never went back to see who had the other opinions 375 00:21:02,040 --> 00:21:05,520 Speaker 3: in the first time role was argued, which was in 376 00:21:05,760 --> 00:21:08,240 Speaker 3: early nineteen seventy. 377 00:21:07,960 --> 00:21:11,200 Speaker 2: Two, Yeah, let me just take a quick side there. 378 00:21:11,680 --> 00:21:14,760 Speaker 2: So Roe v. Wade was argued twice, one year apart, 379 00:21:14,800 --> 00:21:16,600 Speaker 2: and the first time it was argued there were only 380 00:21:16,640 --> 00:21:19,840 Speaker 2: seven sitting justices, and then they decided that this was 381 00:21:19,880 --> 00:21:23,240 Speaker 2: too important a decision to be decided by a small court, 382 00:21:23,520 --> 00:21:26,440 Speaker 2: and so Sarah had to go back the following year 383 00:21:26,960 --> 00:21:29,680 Speaker 2: and argue it all over again when there were nine justices, 384 00:21:30,160 --> 00:21:33,040 Speaker 2: And that's one of those examples of for dramatic effect, 385 00:21:33,400 --> 00:21:36,480 Speaker 2: I just decided to conflate the two. It would just 386 00:21:36,520 --> 00:21:39,920 Speaker 2: be too confusing to have two separate trials in the show, 387 00:21:40,119 --> 00:21:43,600 Speaker 2: so I conflated them. But for the most part, the 388 00:21:43,840 --> 00:21:46,320 Speaker 2: Supreme Court case that we hear in the show is 389 00:21:46,320 --> 00:21:47,399 Speaker 2: that second argument. 390 00:21:47,720 --> 00:21:50,119 Speaker 3: And the fact that there are two arguments tells us something. 391 00:21:50,119 --> 00:21:52,400 Speaker 3: And here's what it tells us. Justice Harlan and Justice 392 00:21:52,440 --> 00:21:56,320 Speaker 3: black Ab roughly retired at the beginning of the nineteen 393 00:21:56,359 --> 00:22:00,720 Speaker 3: seventy one term, leaving, as you just said, justices, and 394 00:22:00,760 --> 00:22:03,840 Speaker 3: they had a bunch of cases scheduled for argument. So 395 00:22:03,960 --> 00:22:06,320 Speaker 3: what to do? And they set up a little committee. 396 00:22:06,760 --> 00:22:10,040 Speaker 3: And I never quite could get this is from Blackman's notes. 397 00:22:10,680 --> 00:22:13,440 Speaker 3: I never could quite get the full membership of it. 398 00:22:13,840 --> 00:22:16,240 Speaker 3: But I think Blackman was on that, Potter Stewart was 399 00:22:16,240 --> 00:22:19,960 Speaker 3: on it to decide which of the cases were so 400 00:22:20,160 --> 00:22:25,240 Speaker 3: important that they should be held for the two vacancies 401 00:22:25,280 --> 00:22:28,479 Speaker 3: to be filled by President Nixon, and which were the 402 00:22:28,480 --> 00:22:30,680 Speaker 3: more ordinary cases that they could just go ahead and 403 00:22:30,840 --> 00:22:34,679 Speaker 3: argue with seven justices. And Roe versus Wade fell in 404 00:22:34,720 --> 00:22:38,240 Speaker 3: the second category. They went ahead and argued it because 405 00:22:38,600 --> 00:22:41,240 Speaker 3: they didn't think it was so important that they needed 406 00:22:41,240 --> 00:22:44,480 Speaker 3: to wait for nine justices. That tells us that the 407 00:22:44,520 --> 00:22:48,919 Speaker 3: way we understand the context of Roe today is not 408 00:22:49,160 --> 00:22:50,399 Speaker 3: actually the way it was. 409 00:22:51,000 --> 00:22:53,120 Speaker 2: That's so interesting. Well, let's talk a little bit more 410 00:22:53,119 --> 00:22:56,040 Speaker 2: about the relationship between Harry and Warren. One of the 411 00:22:56,040 --> 00:22:59,480 Speaker 2: things that I found so dramatically interesting is what opposites 412 00:22:59,520 --> 00:23:02,640 Speaker 2: they were in personality. Seemingly they were paralleled a little 413 00:23:02,640 --> 00:23:06,000 Speaker 2: bit in our show by Sarah and Linda, who are 414 00:23:06,040 --> 00:23:09,280 Speaker 2: also very much opposites in personality. While Sarah is the 415 00:23:09,320 --> 00:23:12,679 Speaker 2: sort of outgoing beauty queen who is the president of 416 00:23:12,680 --> 00:23:16,160 Speaker 2: the Homemakers Association of America in college and always wore 417 00:23:16,200 --> 00:23:19,119 Speaker 2: these pastel dresses, Linda was the exact opposite of that. 418 00:23:19,320 --> 00:23:22,200 Speaker 2: With Harry and Warren, how are their personality is different? 419 00:23:22,640 --> 00:23:26,359 Speaker 3: So Warren Berger was very needy. One of the most 420 00:23:26,400 --> 00:23:30,280 Speaker 3: fascinating things about getting into the Blackman papers was the 421 00:23:30,359 --> 00:23:35,520 Speaker 3: extensive correspondents between the two of them. Blackmen saved not 422 00:23:35,600 --> 00:23:40,040 Speaker 3: only all of Burger's incoming, but he would answer with 423 00:23:40,240 --> 00:23:45,080 Speaker 3: typewritten letters on carbon paper. If listeners today even ever 424 00:23:45,119 --> 00:23:47,199 Speaker 3: saw a sheet of carbon paper, I'm not sure that 425 00:23:47,320 --> 00:23:50,560 Speaker 3: my daughter ever has, for instance. But so he kept 426 00:23:50,920 --> 00:23:52,760 Speaker 3: copies of all the outgoings. So we have in his 427 00:23:52,840 --> 00:23:59,879 Speaker 3: papers the complete correspondence and Burger he's always complaining of 428 00:24:00,280 --> 00:24:04,440 Speaker 3: the circumstances of his life and his frustrations and his 429 00:24:04,560 --> 00:24:08,600 Speaker 3: need for companionship. He would write these letters before they 430 00:24:08,640 --> 00:24:11,720 Speaker 3: were on the court, so they were separated by half 431 00:24:11,720 --> 00:24:15,439 Speaker 3: a country. He was in Washington, Blackman was back in Minnesota. Harry, 432 00:24:15,480 --> 00:24:17,399 Speaker 3: why did the two of us just run away together? 433 00:24:17,480 --> 00:24:18,840 Speaker 3: Why don't we go to Europe? All I have to 434 00:24:18,840 --> 00:24:21,840 Speaker 3: do is pack your pajamas. I was reading this stuff 435 00:24:22,720 --> 00:24:25,199 Speaker 3: and it's almost a little homo erotic. I don't mean 436 00:24:25,240 --> 00:24:27,960 Speaker 3: to be projecting, And certainly whatever was going on with 437 00:24:28,040 --> 00:24:31,800 Speaker 3: Berger was very deeply buried in him. But we see 438 00:24:31,960 --> 00:24:37,080 Speaker 3: this need Blackman is my senses would receive these letters 439 00:24:37,960 --> 00:24:43,120 Speaker 3: with a little bit of puzzlement, some empathy, some kind 440 00:24:43,119 --> 00:24:46,560 Speaker 3: of annoyance. I think, like Warren, I don't need to 441 00:24:46,600 --> 00:24:49,240 Speaker 3: hear this today. I'm a busy man. You could see 442 00:24:49,280 --> 00:24:53,400 Speaker 3: just from the correspondence. Blackman was quite very inner directed. 443 00:24:53,680 --> 00:24:56,240 Speaker 3: You know. He had a I think good relationship with 444 00:24:56,400 --> 00:24:59,960 Speaker 3: Dottie's wife and raising three daughters and I think burger 445 00:25:00,200 --> 00:25:04,120 Speaker 3: 's home life was not terrifically stable. I don't want 446 00:25:04,119 --> 00:25:07,040 Speaker 3: to say more than I know, but he had a daughter, 447 00:25:07,200 --> 00:25:11,520 Speaker 3: Mary Margaret, who had some kind of chronic and long 448 00:25:11,640 --> 00:25:17,439 Speaker 3: lasting emotional intellectual, I'm not sure disability, and that was 449 00:25:17,480 --> 00:25:21,399 Speaker 3: a great worry to him. So they were, you know, 450 00:25:21,520 --> 00:25:24,560 Speaker 3: kind of on different planets in dealing with the sort 451 00:25:24,560 --> 00:25:26,119 Speaker 3: of agonies of midlife. 452 00:25:26,160 --> 00:25:28,960 Speaker 2: You might say, interesting. Yeah, so we never go home 453 00:25:29,000 --> 00:25:31,040 Speaker 2: with Warren in my show, but we do go home 454 00:25:31,080 --> 00:25:32,560 Speaker 2: with Harry. So I want to talk a little bit 455 00:25:32,600 --> 00:25:35,600 Speaker 2: about that. Harry seems to be someone who was just 456 00:25:35,880 --> 00:25:38,440 Speaker 2: surrounded by women. As you said, he had three daughters, 457 00:25:38,520 --> 00:25:41,480 Speaker 2: no sons. He had a wife, Dottie, who's played by 458 00:25:42,280 --> 00:25:45,359 Speaker 2: William H. Macy's real life wife, Felicity Hoffman in the show, 459 00:25:45,440 --> 00:25:47,480 Speaker 2: and they seemed to be very close and had a 460 00:25:47,480 --> 00:25:49,720 Speaker 2: good marriage. So tell us a little bit about what 461 00:25:49,800 --> 00:25:52,440 Speaker 2: Harry's relationship was actually like with his wife and daughter. 462 00:25:52,560 --> 00:25:57,199 Speaker 3: They had certain routines and for many years Harry was 463 00:25:57,240 --> 00:26:00,280 Speaker 3: involved with the Aspen Institute in Aspen, Colorado. They spend 464 00:26:00,280 --> 00:26:03,480 Speaker 3: the summer there and they would drive across the country, 465 00:26:03,960 --> 00:26:07,439 Speaker 3: and as they drove, Dottie would be reading out loud 466 00:26:07,440 --> 00:26:10,000 Speaker 3: to him the new petitions that had come into the 467 00:26:10,040 --> 00:26:12,680 Speaker 3: court so that he could keep up with his work 468 00:26:12,760 --> 00:26:15,920 Speaker 3: while he'd be driving this little VW beetle. They really 469 00:26:15,960 --> 00:26:19,560 Speaker 3: were partners. I think she was an interesting woman before 470 00:26:19,640 --> 00:26:22,879 Speaker 3: she had children. She had an interesting career. She was 471 00:26:22,920 --> 00:26:26,119 Speaker 3: a dress designer and had her own dress shop. Right. 472 00:26:26,400 --> 00:26:29,520 Speaker 3: She was a woman of her time and didn't pursue 473 00:26:29,520 --> 00:26:31,680 Speaker 3: that when she started having babies. You know, she was 474 00:26:31,680 --> 00:26:35,400 Speaker 3: a person with outside interests. And I think they did 475 00:26:35,440 --> 00:26:39,000 Speaker 3: have a very, very warm and mutually supportive relationship. 476 00:26:39,240 --> 00:26:41,760 Speaker 2: And I'll say that really does mirror what I briefly 477 00:26:41,800 --> 00:26:46,240 Speaker 2: saw in production with Bill Macy and Felicity Huffman. They 478 00:26:46,280 --> 00:26:50,359 Speaker 2: recorded together, and they were adorable together. They were constantly 479 00:26:50,400 --> 00:26:52,639 Speaker 2: making jokes with each other. It was actually really sweet 480 00:26:52,640 --> 00:26:57,240 Speaker 2: to say. So. Harry's three daughters, Nancy, Susan, and Sally, 481 00:26:57,359 --> 00:26:59,840 Speaker 2: can you tell us anything about them? A couple of 482 00:26:59,840 --> 00:27:02,639 Speaker 2: them very much walked in their father's shoes into the 483 00:27:02,680 --> 00:27:06,520 Speaker 2: practice of law. Susie I think was a bit of hippie. 484 00:27:06,880 --> 00:27:11,840 Speaker 2: Sally is someone who plays a little bit of a 485 00:27:11,920 --> 00:27:15,040 Speaker 2: larger part in the show because of something I think 486 00:27:15,080 --> 00:27:18,200 Speaker 2: I learned in your book, which is that she got 487 00:27:18,240 --> 00:27:21,720 Speaker 2: pregnant when she was in college and she was forced 488 00:27:21,760 --> 00:27:24,960 Speaker 2: to or she decided to drop out of school and 489 00:27:25,280 --> 00:27:31,080 Speaker 2: marry her college boyfriend, and eventually the pregnancy was miscarried. 490 00:27:31,200 --> 00:27:33,080 Speaker 2: It's very similar to something we'll talk about in a 491 00:27:33,119 --> 00:27:36,360 Speaker 2: second that happened to Sarah. Whereas Sarah, when she got pregnant, 492 00:27:36,440 --> 00:27:39,080 Speaker 2: chose to go to Mexico and get an illegal abortion, 493 00:27:40,080 --> 00:27:43,199 Speaker 2: Harry's daughter did not. And I always wondered how that 494 00:27:43,320 --> 00:27:46,040 Speaker 2: might have weighed on Harry, what kind of discussions they 495 00:27:46,119 --> 00:27:47,840 Speaker 2: might have had behind the scenes. 496 00:27:48,359 --> 00:27:50,439 Speaker 3: Well, again, I never liked to say more than I know, 497 00:27:50,760 --> 00:27:54,119 Speaker 3: but I'm sure that was a family trauma because she 498 00:27:54,880 --> 00:27:59,280 Speaker 3: is very smart and you know, obviously designed for a 499 00:27:59,320 --> 00:28:02,440 Speaker 3: college and probably professional education. She went on became a 500 00:28:02,480 --> 00:28:05,960 Speaker 3: lawyer and had a quite substantial legal career. There's nothing 501 00:28:06,000 --> 00:28:10,240 Speaker 3: I read that indicated that the subject of abortion ever 502 00:28:10,359 --> 00:28:15,439 Speaker 3: came up, although we know statistically in the years before 503 00:28:15,560 --> 00:28:19,040 Speaker 3: Row there were maybe a million illegal abortions a year 504 00:28:19,080 --> 00:28:23,480 Speaker 3: in the country, So all classes of people were easily 505 00:28:23,560 --> 00:28:27,800 Speaker 3: obtained by middle class people through networks and hospital committees 506 00:28:28,000 --> 00:28:31,280 Speaker 3: and this kind of thing. She probably could have arranged 507 00:28:31,359 --> 00:28:34,480 Speaker 3: the family probably could have arrange for her to have 508 00:28:34,680 --> 00:28:38,280 Speaker 3: even a legal abortion. I mean, there were ways of 509 00:28:38,600 --> 00:28:41,880 Speaker 3: satisfying various requirements and so on, but I'm not sure 510 00:28:41,880 --> 00:28:42,560 Speaker 3: it ever came up. 511 00:28:42,720 --> 00:28:45,080 Speaker 2: Yeah, I'm not sure either. But that's a conversation that 512 00:28:45,120 --> 00:28:48,120 Speaker 2: I have way after the fact between Susan and her 513 00:28:48,160 --> 00:28:50,760 Speaker 2: father in the show, and Susan, by the way, is 514 00:28:50,800 --> 00:28:54,800 Speaker 2: played by William H. Macy and Felicity Huffman's real life 515 00:28:54,840 --> 00:28:56,520 Speaker 2: daughter Sophia, which was really fun. 516 00:29:21,600 --> 00:29:24,920 Speaker 3: Aaron, you asked me where the idea from my book 517 00:29:24,920 --> 00:29:27,400 Speaker 3: came from? Where did your idea for the show come from? 518 00:29:27,480 --> 00:29:31,520 Speaker 2: I think I first learned about Sarah Weddington, I want 519 00:29:31,520 --> 00:29:33,160 Speaker 2: to say, when I was here in grad school, so 520 00:29:33,360 --> 00:29:35,720 Speaker 2: a million years ago, and the thing that first caught 521 00:29:35,760 --> 00:29:38,680 Speaker 2: my eye was the idea that this was the youngest 522 00:29:38,720 --> 00:29:41,400 Speaker 2: person in history to win a case in the Supreme Court. 523 00:29:41,520 --> 00:29:43,840 Speaker 2: And not only was she the youngest person, she was 524 00:29:43,880 --> 00:29:46,400 Speaker 2: the youngest woman to ever argue a case there. And 525 00:29:46,400 --> 00:29:48,120 Speaker 2: not only was she the youngest one ever had already 526 00:29:48,160 --> 00:29:50,520 Speaker 2: case there, but she had never had a contested case before. 527 00:29:50,680 --> 00:29:53,040 Speaker 2: She had only done wills and adoptions, She had never 528 00:29:53,080 --> 00:29:54,760 Speaker 2: spoken in front of a judge. She had never been 529 00:29:54,760 --> 00:29:57,720 Speaker 2: in a courtroom, and that's what really got me excited, 530 00:29:57,720 --> 00:30:01,640 Speaker 2: this sort of underdog Aaron Brockovich type story. Adding to 531 00:30:01,680 --> 00:30:04,560 Speaker 2: that it happened to be the most explosive case of 532 00:30:04,560 --> 00:30:07,120 Speaker 2: the twentieth century. I could not believe that nobody else 533 00:30:07,120 --> 00:30:08,640 Speaker 2: had told this story yet I thought it was such 534 00:30:08,720 --> 00:30:12,240 Speaker 2: a fascinating story. And as I did research, reading books 535 00:30:12,320 --> 00:30:16,000 Speaker 2: like yours Becoming Justice Blackman, I got very excited about 536 00:30:16,400 --> 00:30:20,240 Speaker 2: Harry's journey on a parallel path to Sarah's, and about 537 00:30:20,280 --> 00:30:23,160 Speaker 2: the abortion fight in general, which of course has so 538 00:30:23,200 --> 00:30:26,280 Speaker 2: many dramatic twists and turns. What she talks about in 539 00:30:26,280 --> 00:30:30,360 Speaker 2: her book, this wasn't just a professional cause for her. 540 00:30:30,400 --> 00:30:32,840 Speaker 2: This wasn't just a way for her to get to 541 00:30:32,880 --> 00:30:34,920 Speaker 2: practice law, although that was part of it. When no 542 00:30:34,920 --> 00:30:37,200 Speaker 2: one else would give her a case, this was a 543 00:30:37,240 --> 00:30:39,960 Speaker 2: case that was handed to her. But she went down 544 00:30:40,000 --> 00:30:42,800 Speaker 2: to Mexico and had her own illegal abortion and really 545 00:30:42,840 --> 00:30:45,960 Speaker 2: wanted to prevent other people from having to go through 546 00:30:45,960 --> 00:30:49,520 Speaker 2: that trauma. And then something I learned from your book 547 00:30:49,960 --> 00:30:53,800 Speaker 2: that Harry Blackman, who was a man who was a 548 00:30:53,880 --> 00:30:56,800 Speaker 2: jurist and a lawyer for many years and didn't seem 549 00:30:56,840 --> 00:31:00,800 Speaker 2: to have any obvious connections to the abortion movement. Had 550 00:31:00,800 --> 00:31:04,560 Speaker 2: a daughter who dropped out of school a sophomore year 551 00:31:04,560 --> 00:31:07,080 Speaker 2: when she got pregnant and had to marry her college boyfriend, 552 00:31:07,600 --> 00:31:11,120 Speaker 2: and that pregnancy eventually ended in a miscarriage. But I 553 00:31:11,200 --> 00:31:14,560 Speaker 2: was very interested in imagining what that might have been 554 00:31:14,640 --> 00:31:17,360 Speaker 2: like behind the scenes between Harry and his daughter. Did 555 00:31:17,360 --> 00:31:19,480 Speaker 2: he suggest she should have an abortion? Did that subject 556 00:31:19,480 --> 00:31:22,640 Speaker 2: ever come up? And then last, the relationship between Harry 557 00:31:22,640 --> 00:31:25,360 Speaker 2: and Warren, which you talk about so beautifully in your book, 558 00:31:25,360 --> 00:31:28,240 Speaker 2: that they were lifelong best friends, best men at each 559 00:31:28,240 --> 00:31:32,200 Speaker 2: other's weddings, camp counselors together, and now I'm very close 560 00:31:32,240 --> 00:31:36,400 Speaker 2: with my childhood best friends, And just imagining the two 561 00:31:36,440 --> 00:31:39,680 Speaker 2: of them having gone from little kids together the Minnesota 562 00:31:39,720 --> 00:31:42,280 Speaker 2: twins Harry's mom would call them to now being two 563 00:31:42,320 --> 00:31:44,920 Speaker 2: of the most powerful people in the country. I just 564 00:31:45,120 --> 00:31:48,760 Speaker 2: it all felt like such ripe stories for drama. I 565 00:31:48,800 --> 00:31:51,720 Speaker 2: absolutely loved it. Shifting gears a little bit. I would 566 00:31:51,760 --> 00:31:53,880 Speaker 2: love to talk a little bit about Sarah and Linda. 567 00:31:54,000 --> 00:31:56,600 Speaker 2: The show is very much about Sarah on a parallel 568 00:31:56,640 --> 00:32:00,840 Speaker 2: track to Harry. Sarah and Harry were both sort of amateurs. 569 00:32:01,160 --> 00:32:04,360 Speaker 2: Sarah to a much greater degree, had never argued a 570 00:32:04,400 --> 00:32:07,120 Speaker 2: case before, She'd never stood before a judge, literally, never 571 00:32:07,120 --> 00:32:08,880 Speaker 2: had a contested case. She had just done a couple 572 00:32:09,000 --> 00:32:11,920 Speaker 2: adoptions and wills, and now she's taking her first ever 573 00:32:12,000 --> 00:32:14,840 Speaker 2: case all the way to the Supreme Court. Harry has 574 00:32:15,240 --> 00:32:18,840 Speaker 2: a distinguished history as a judge and a lawyer for 575 00:32:18,880 --> 00:32:21,240 Speaker 2: the Mayo Clinic, but he was fairly new to the 576 00:32:21,240 --> 00:32:24,280 Speaker 2: Supreme Court. He had never written a major decision for 577 00:32:24,360 --> 00:32:26,640 Speaker 2: the Court before. And so I loved the idea of 578 00:32:26,640 --> 00:32:30,120 Speaker 2: these two figures on parallel tracks, untested and maybe a 579 00:32:30,160 --> 00:32:32,240 Speaker 2: little bit scared. So can you talk a little bit 580 00:32:32,240 --> 00:32:35,120 Speaker 2: about the brief for Roe v. Wade. A big part 581 00:32:35,200 --> 00:32:39,160 Speaker 2: of one episode is Sarah and Ron and then eventually 582 00:32:39,240 --> 00:32:42,400 Speaker 2: Linda coming. They moved to the Women's Institute in Gramercy 583 00:32:42,440 --> 00:32:46,040 Speaker 2: in New York. It's an irving place around seventeenth Street. 584 00:32:46,040 --> 00:32:48,280 Speaker 2: The building is still there. I walk by it all 585 00:32:48,280 --> 00:32:52,560 Speaker 2: the time. And the Women's Institute offered them space and 586 00:32:52,720 --> 00:32:55,760 Speaker 2: interns to help them write the brief in the summer 587 00:32:55,800 --> 00:32:58,400 Speaker 2: before the Supreme Court. So can you tell us a 588 00:32:58,400 --> 00:33:01,840 Speaker 2: little bit about what court brief is, what sort of 589 00:33:01,840 --> 00:33:02,480 Speaker 2: goes into it. 590 00:33:03,120 --> 00:33:05,719 Speaker 3: So the idea of the Spreme Corp. Brief is to 591 00:33:06,040 --> 00:33:09,680 Speaker 3: present the argument in the most effective way. It has 592 00:33:09,720 --> 00:33:13,360 Speaker 3: an introduction, it has a summary of argument, and then 593 00:33:13,440 --> 00:33:17,959 Speaker 3: you want to say how the argument you're making is 594 00:33:18,120 --> 00:33:22,960 Speaker 3: the logical extension of the Court's body of work that's 595 00:33:23,000 --> 00:33:26,680 Speaker 3: come before, of the precedence, And the idea in Roe 596 00:33:27,040 --> 00:33:30,160 Speaker 3: was to show how it grew naturally out of a 597 00:33:30,240 --> 00:33:33,200 Speaker 3: case that had been decided less than ten years before, 598 00:33:33,520 --> 00:33:37,400 Speaker 3: Griswold against Connecticut, which in nineteen sixty five the Court 599 00:33:37,440 --> 00:33:40,280 Speaker 3: found there was a constitutional right for married couples to 600 00:33:40,360 --> 00:33:43,600 Speaker 3: use birth control. Now this is in my lifetime. It's 601 00:33:43,680 --> 00:33:45,960 Speaker 3: kind of astonishing that you know, in the lifetime of 602 00:33:46,160 --> 00:33:48,840 Speaker 3: people who are walking around today and who still look 603 00:33:48,880 --> 00:33:52,680 Speaker 3: get themselves out of bed, that birth control was illegal 604 00:33:52,760 --> 00:33:55,760 Speaker 3: in the state of Connecticut, which is where we're now 605 00:33:55,800 --> 00:34:00,160 Speaker 3: having to be recording this episode. So Griswolding is to 606 00:34:00,160 --> 00:34:04,440 Speaker 3: get recognized a right to privacy growing out of the 607 00:34:04,560 --> 00:34:09,560 Speaker 3: due process guarantee in the fourteenth Amendment, and had other 608 00:34:09,560 --> 00:34:12,239 Speaker 3: stuff in it too, of course. So the idea was 609 00:34:12,280 --> 00:34:14,240 Speaker 3: to say to the court, this is what you said 610 00:34:14,239 --> 00:34:18,440 Speaker 3: not too many years ago, and here's the logical consequence. 611 00:34:18,719 --> 00:34:21,439 Speaker 3: If you can have birth control because you don't want 612 00:34:21,440 --> 00:34:23,799 Speaker 3: to bear a child, you have the right not to 613 00:34:23,840 --> 00:34:27,040 Speaker 3: bear a child, as guaranteed by the Constitution. So that 614 00:34:27,200 --> 00:34:30,359 Speaker 3: was the effort. And the kind of back story of 615 00:34:30,400 --> 00:34:33,680 Speaker 3: the brief is that it was based on a low 616 00:34:33,760 --> 00:34:38,239 Speaker 3: review article that had appeared not too long before in 617 00:34:38,280 --> 00:34:40,920 Speaker 3: the Law Journal of the University of North Carolina by 618 00:34:40,960 --> 00:34:44,960 Speaker 3: a young guy named Roy Lucas, and it had gotten 619 00:34:45,000 --> 00:34:49,160 Speaker 3: a fair amount of play, and Roy Lucas had drafted 620 00:34:49,680 --> 00:34:52,960 Speaker 3: part of the brief and there was a good deal 621 00:34:53,040 --> 00:34:57,239 Speaker 3: of tension between him and Sarah and Linda as to 622 00:34:57,280 --> 00:34:59,520 Speaker 3: who was going to get to argue. And Roy Lucas, 623 00:34:59,600 --> 00:35:02,000 Speaker 3: who am I I knew, never let go of his 624 00:35:02,160 --> 00:35:05,160 Speaker 3: anger that he had not been the one who argued. 625 00:35:05,440 --> 00:35:07,200 Speaker 2: Let's talk about this because this is part of the show. 626 00:35:07,239 --> 00:35:10,240 Speaker 2: Also really is played by Luke Kirby in our show, 627 00:35:10,280 --> 00:35:12,800 Speaker 2: Who's Lenny Bruce and the marveless Missus mays All just 628 00:35:12,840 --> 00:35:16,440 Speaker 2: a fantastic actor, and he was a major player, if 629 00:35:16,440 --> 00:35:19,040 Speaker 2: not the major player in abortion cases in the country 630 00:35:19,040 --> 00:35:21,799 Speaker 2: at the time. And so what Sarah writes in her 631 00:35:21,800 --> 00:35:24,720 Speaker 2: book is that really tried to steal the case away 632 00:35:25,000 --> 00:35:27,200 Speaker 2: by writing a letter to the Supreme Court saying that 633 00:35:27,239 --> 00:35:30,319 Speaker 2: he would be the one arguing the case. What are 634 00:35:30,360 --> 00:35:31,400 Speaker 2: your sort of thoughts on that. 635 00:35:31,840 --> 00:35:35,839 Speaker 3: Well, I mean, he was deeply invested and he had 636 00:35:35,920 --> 00:35:39,480 Speaker 3: done the work. And like a lot of creators, you 637 00:35:39,560 --> 00:35:42,160 Speaker 3: launch something in the world and you lose control of it. 638 00:35:42,840 --> 00:35:45,359 Speaker 3: So he got back into the game later. He had 639 00:35:45,400 --> 00:35:48,640 Speaker 3: other abortion cases that he argued before the Supreme Court, 640 00:35:48,719 --> 00:35:51,720 Speaker 3: but he missed the big one. Yeah, and was very bitter, 641 00:35:51,840 --> 00:35:54,799 Speaker 3: and I think his bitterness about it overshadow the rest 642 00:35:54,800 --> 00:35:55,400 Speaker 3: of his life. 643 00:35:55,719 --> 00:35:59,520 Speaker 2: Yeah. So going back to the Supreme Court once it's 644 00:35:59,560 --> 00:36:03,879 Speaker 2: time for Harry to assemble a majority. As you said, 645 00:36:03,920 --> 00:36:06,440 Speaker 2: he got a seven to two majority in the case, 646 00:36:06,719 --> 00:36:10,200 Speaker 2: including warren Berger's vote. How does the justice go about 647 00:36:10,320 --> 00:36:13,400 Speaker 2: assembling majority? I know is very important to Harry that 648 00:36:13,520 --> 00:36:16,799 Speaker 2: this case be as close to unanimous as possible. How 649 00:36:16,840 --> 00:36:17,600 Speaker 2: do you go about doing it? 650 00:36:18,000 --> 00:36:20,800 Speaker 3: Well, you've got to write a draft. And what happens 651 00:36:20,880 --> 00:36:24,160 Speaker 3: is you get the assignment and it then falls you 652 00:36:24,200 --> 00:36:28,200 Speaker 3: to write a draft, which you then circulate. And the 653 00:36:28,239 --> 00:36:31,799 Speaker 3: Court has an odd locution. One justice will say, you 654 00:36:31,880 --> 00:36:35,640 Speaker 3: have my join is usually a verb in the English language, 655 00:36:35,640 --> 00:36:39,000 Speaker 3: but at the Spreme Court locution it's a noun. You 656 00:36:39,040 --> 00:36:41,360 Speaker 3: have my join That means I'm going to sign your opinion. 657 00:36:41,400 --> 00:36:43,920 Speaker 3: You've got me or can say you know, I'm with 658 00:36:44,000 --> 00:36:47,200 Speaker 3: you part of the way. But I really not comfortable 659 00:36:47,280 --> 00:36:50,840 Speaker 3: with Section X and i'd like to see that revised 660 00:36:50,840 --> 00:36:53,719 Speaker 3: in such and such a way, and that kind of thing. 661 00:36:54,120 --> 00:36:57,160 Speaker 3: The burden is on the justice who got the assignment, 662 00:36:57,640 --> 00:37:01,120 Speaker 3: and it's a burden that sometimes that justice can't carry 663 00:37:01,400 --> 00:37:03,960 Speaker 3: what's known as you can lose the court when you 664 00:37:04,000 --> 00:37:07,120 Speaker 3: don't get five votes. So that was part of the 665 00:37:07,239 --> 00:37:08,200 Speaker 3: challenge for Harry. 666 00:37:08,480 --> 00:37:12,200 Speaker 2: Yeah, Harry took the sort of unusual step, as my 667 00:37:12,280 --> 00:37:17,720 Speaker 2: understanding and read his final decision alone from the bench 668 00:37:17,960 --> 00:37:20,719 Speaker 2: to a room full of reporters. And that's dramatized in 669 00:37:20,760 --> 00:37:23,640 Speaker 2: the show with Kitty Kurk playing one of the reporters 670 00:37:23,760 --> 00:37:27,080 Speaker 2: talking about it outside the courthouse. Any idea why Harry 671 00:37:27,480 --> 00:37:29,880 Speaker 2: chose to do this, to read the decision from the bench. 672 00:37:30,360 --> 00:37:33,320 Speaker 3: Oh, I'll give you a bit of historical context and correction. 673 00:37:33,760 --> 00:37:34,080 Speaker 2: Please. 674 00:37:34,480 --> 00:37:37,560 Speaker 3: It was and we'll see if that is going to 675 00:37:37,600 --> 00:37:40,480 Speaker 3: continue in the post pandemic world. We don't know yet. 676 00:37:40,719 --> 00:37:44,440 Speaker 3: Very common, I mean expected for the justice who has 677 00:37:44,480 --> 00:37:48,640 Speaker 3: the majority opinion to announce from the bench a summary 678 00:37:48,800 --> 00:37:52,640 Speaker 3: of it, and that's called the handdown. It's handed down 679 00:37:52,640 --> 00:37:56,400 Speaker 3: from the bench orally to the public. Now who's the public. 680 00:37:56,760 --> 00:37:59,760 Speaker 3: There's maybe two hundred tourists or whatever sitting in the courtroom, 681 00:37:59,800 --> 00:38:02,960 Speaker 3: and then there's a couple rows of press seats. Nobody 682 00:38:03,000 --> 00:38:06,680 Speaker 3: knows when an opinion's coming down. So Roe came down 683 00:38:06,719 --> 00:38:09,440 Speaker 3: in January. It wasn't one of these let's hold our 684 00:38:09,480 --> 00:38:13,239 Speaker 3: breath for June, like with the Dobbs opinion that overturned Row. 685 00:38:13,520 --> 00:38:15,920 Speaker 3: So just happened to come down in January. But what 686 00:38:16,000 --> 00:38:20,760 Speaker 3: Harry did that was a little bit unusual was he 687 00:38:21,280 --> 00:38:24,040 Speaker 3: wrote his hand down, not the full opinion. He wrote 688 00:38:24,040 --> 00:38:27,400 Speaker 3: his hand down, which is just a few pages, and 689 00:38:27,520 --> 00:38:31,360 Speaker 3: he circulated it in advance to the justices in the 690 00:38:31,400 --> 00:38:37,720 Speaker 3: majority to get their feedback. And Burger came back and said, 691 00:38:37,960 --> 00:38:42,080 Speaker 3: I think you should say we are not authorizing abortion 692 00:38:42,239 --> 00:38:42,880 Speaker 3: on demand. 693 00:38:43,360 --> 00:38:43,680 Speaker 2: Wow. 694 00:38:44,080 --> 00:38:47,600 Speaker 3: And I saw in Blackman's papers, his draft of the 695 00:38:47,640 --> 00:38:52,520 Speaker 3: handdown and Burger's response. And Blackman did not say that 696 00:38:53,239 --> 00:38:57,759 Speaker 3: in his oral announcement. And that was clue as to 697 00:38:57,800 --> 00:39:02,799 Speaker 3: where Berger was heading. Because what does abortion on demand mean? 698 00:39:02,920 --> 00:39:06,080 Speaker 3: What does that phrase mean? We hear it, we don't 699 00:39:06,120 --> 00:39:08,960 Speaker 3: hear about I want an appendectomy on demand, I want 700 00:39:09,000 --> 00:39:10,960 Speaker 3: a nose job on demand. What does it means? The 701 00:39:11,080 --> 00:39:15,640 Speaker 3: abortion on demand? It actually is a perversion of a 702 00:39:15,680 --> 00:39:20,680 Speaker 3: feminist slogan. Before Roe, women were marching under banners that 703 00:39:20,920 --> 00:39:27,680 Speaker 3: said we demand free twenty four hour childcare and free abortions. 704 00:39:28,280 --> 00:39:31,880 Speaker 3: That means we want the right to become mothers and 705 00:39:32,000 --> 00:39:35,200 Speaker 3: stay in the workplace. We want childcare, or on the 706 00:39:35,200 --> 00:39:37,680 Speaker 3: other hand, we want the right not to become mothers 707 00:39:37,680 --> 00:39:40,000 Speaker 3: if we don't want to become mothers. It was a 708 00:39:40,040 --> 00:39:44,160 Speaker 3: two part thing, but the anti abortion crowd picked up 709 00:39:44,160 --> 00:39:47,759 Speaker 3: the abortion on demand as a stand alone and a 710 00:39:47,840 --> 00:39:53,479 Speaker 3: kind of an ugly phrase that made women who were 711 00:39:53,680 --> 00:39:57,280 Speaker 3: seeking to change the abortion laws sounded very unappealing. Demanding 712 00:39:57,280 --> 00:39:59,920 Speaker 3: anything sounds unappealing. What they were demanding was a constant 713 00:40:00,000 --> 00:40:04,160 Speaker 3: titutional right. So for Burger to reflect that perversion of 714 00:40:04,200 --> 00:40:08,440 Speaker 3: the language that I just described, I think tells us 715 00:40:08,480 --> 00:40:12,040 Speaker 3: that although Harry had his join that Burger was not 716 00:40:12,080 --> 00:40:13,040 Speaker 3: going to be reliable. 717 00:40:13,239 --> 00:40:16,200 Speaker 2: Interesting, and just to give a little bit more contacts 718 00:40:16,320 --> 00:40:19,360 Speaker 2: the previous court from the Burger Court, the Warren Court. 719 00:40:19,600 --> 00:40:24,040 Speaker 2: They were known for expanding rights with Gideon and Miranda 720 00:40:24,120 --> 00:40:27,239 Speaker 2: and Brown v. Board. Now, with the Burger Court that had, 721 00:40:27,320 --> 00:40:30,799 Speaker 2: as you said, three Nickson appointees at least three four four, 722 00:40:31,280 --> 00:40:34,120 Speaker 2: what was the thinking, would the expansion of rights continue? 723 00:40:34,280 --> 00:40:36,319 Speaker 2: Or I assume the thinking was the expansion of rights 724 00:40:36,320 --> 00:40:38,400 Speaker 2: would end if not the restriction of rights. 725 00:40:38,600 --> 00:40:40,920 Speaker 3: I don't think they woke up in the morning and said, Okay, 726 00:40:40,960 --> 00:40:42,640 Speaker 3: we're going to spend the next twenty years of our 727 00:40:42,680 --> 00:40:44,040 Speaker 3: life restricting rights. 728 00:40:44,080 --> 00:40:45,680 Speaker 2: But you don't think the current court's doing that? 729 00:40:46,040 --> 00:40:49,000 Speaker 3: Oh yeah, I think with the Nixon appointees to the 730 00:40:49,040 --> 00:40:54,399 Speaker 3: Burger Court, they Nixon ran against the Warren Court. In 731 00:40:54,440 --> 00:40:58,520 Speaker 3: his nineteen sixty eight presidential campaign. He had all kinds 732 00:40:58,560 --> 00:41:03,360 Speaker 3: of dog whistles order crime. Those were dog whistles for race. 733 00:41:03,880 --> 00:41:07,880 Speaker 3: By nineteen sixty eight, you couldn't quite put yourself in 734 00:41:08,000 --> 00:41:11,080 Speaker 3: the you know, segregation side of the street. So you 735 00:41:11,280 --> 00:41:15,120 Speaker 3: use crime much as being used today. Very few things 736 00:41:15,160 --> 00:41:17,040 Speaker 3: that are all that new under the sun. But yeah, 737 00:41:17,080 --> 00:41:19,399 Speaker 3: the Nixon appointees on the court certainly thought the war 738 00:41:19,480 --> 00:41:23,800 Speaker 3: In Court had gone too far and needed the court 739 00:41:23,880 --> 00:41:26,960 Speaker 3: needed to be real back, which makes Roe stand as 740 00:41:27,000 --> 00:41:31,040 Speaker 3: a kind of anomaly against some of the other things 741 00:41:31,080 --> 00:41:36,319 Speaker 3: that happened during the Burger years. But in context, they 742 00:41:36,320 --> 00:41:39,360 Speaker 3: didn't think they were advancing a feminist cause. For instance, 743 00:41:39,880 --> 00:41:44,520 Speaker 3: they didn't think of abortion as a cause. They actually 744 00:41:44,560 --> 00:41:48,880 Speaker 3: thought of abortion as it is, which is a medical procedure, 745 00:41:49,200 --> 00:41:55,839 Speaker 3: full stop. And they were responding to not the cause 746 00:41:55,920 --> 00:41:58,840 Speaker 3: of women on the streets. They couldn't hear those that 747 00:41:58,880 --> 00:42:02,440 Speaker 3: didn't compute with them. They're responding to the fact that 748 00:42:02,920 --> 00:42:07,920 Speaker 3: the American Medical Association, the American Public Health Association, the 749 00:42:07,960 --> 00:42:11,960 Speaker 3: American Law Institute, which is an organization of very elite 750 00:42:12,160 --> 00:42:16,560 Speaker 3: lawyers and judges and professors, all were calling for decriminalization 751 00:42:16,640 --> 00:42:17,160 Speaker 3: of abortion. 752 00:42:17,560 --> 00:42:20,839 Speaker 2: The overturning of rov Wade came when I was near 753 00:42:20,880 --> 00:42:23,560 Speaker 2: the end of writing the audio series. That's why I 754 00:42:23,600 --> 00:42:27,120 Speaker 2: added the ending with Katie Kurk that we heard where 755 00:42:27,160 --> 00:42:30,560 Speaker 2: she talks about how dangerous a political court is, a 756 00:42:30,600 --> 00:42:34,640 Speaker 2: politicized court. I'm curious where you think Roe and the 757 00:42:34,680 --> 00:42:36,000 Speaker 2: abortion fight goes from here. 758 00:42:36,320 --> 00:42:40,640 Speaker 3: It goes into electoral politics. I think we saw in 759 00:42:40,680 --> 00:42:44,560 Speaker 3: the midterms in November where it goes, and it stopped 760 00:42:44,560 --> 00:42:49,360 Speaker 3: the predicted red wave. It led to democratic governors and 761 00:42:49,800 --> 00:42:55,640 Speaker 3: state legislatures being elected on the abortion issue. So it 762 00:42:55,719 --> 00:43:00,160 Speaker 3: opened up a new framework for keeping this issue alive 763 00:43:00,200 --> 00:43:26,960 Speaker 3: that it will be kept alive. So you must have 764 00:43:27,000 --> 00:43:29,239 Speaker 3: taken a fair amount of creative license in the show. 765 00:43:29,800 --> 00:43:33,120 Speaker 2: So I tried to keep it as true to the 766 00:43:33,200 --> 00:43:36,000 Speaker 2: historical record as I possibly could. The way I think 767 00:43:36,000 --> 00:43:38,440 Speaker 2: about it a little bit is the way some of 768 00:43:38,480 --> 00:43:41,920 Speaker 2: my heroes have talked about the way they adapt true stories. 769 00:43:41,960 --> 00:43:45,279 Speaker 2: Aaron Sorkin, for instance, who wrote The Social Network and 770 00:43:45,400 --> 00:43:48,239 Speaker 2: Steve Jobs and the recent Lucille Bald movie, he talks 771 00:43:48,239 --> 00:43:50,520 Speaker 2: about when he takes a true story and dramatizes it, 772 00:43:51,040 --> 00:43:54,880 Speaker 2: he thinks of it as a painting rather than a photograph. 773 00:43:55,160 --> 00:43:57,279 Speaker 2: He's going to have his own interpretation, his own point 774 00:43:57,280 --> 00:44:01,080 Speaker 2: of view, but it's still the story. David mammontt talks 775 00:44:01,120 --> 00:44:06,040 Speaker 2: about how his job is not to document, his job 776 00:44:06,160 --> 00:44:09,920 Speaker 2: is to persuade, and so I tried to do something similar. 777 00:44:10,320 --> 00:44:13,080 Speaker 2: Just the fact that this show takes place over nine 778 00:44:13,120 --> 00:44:16,000 Speaker 2: episodes instead of over four years means that I had 779 00:44:16,040 --> 00:44:19,680 Speaker 2: to take some creative license. The only characters who are 780 00:44:19,719 --> 00:44:24,040 Speaker 2: completely invented, I should say, are composites are Andrea Savage's 781 00:44:24,080 --> 00:44:29,399 Speaker 2: character deb Margalise and Laura Bonanti's character b Cutress. Those 782 00:44:29,440 --> 00:44:33,600 Speaker 2: are composites, and then when Sarah and Harry speak on 783 00:44:33,640 --> 00:44:36,279 Speaker 2: the phone. I really wanted a moment where these two 784 00:44:36,360 --> 00:44:39,719 Speaker 2: characters whose journeys we've been following on parallel tracks for 785 00:44:39,760 --> 00:44:42,279 Speaker 2: so long, finally come together. And of course they do 786 00:44:42,360 --> 00:44:44,719 Speaker 2: come together in the Supreme Court when Harry is raining 787 00:44:44,800 --> 00:44:47,400 Speaker 2: questions down on her, But that didn't really give me 788 00:44:47,480 --> 00:44:50,120 Speaker 2: the sort of intimate moment that I wanted. So I 789 00:44:50,160 --> 00:44:54,240 Speaker 2: took a page from Peter Morgan's script that Ron Howard 790 00:44:54,239 --> 00:44:58,040 Speaker 2: directed Frost Nixon, where Nixon has a middle of the night, 791 00:44:58,120 --> 00:45:02,080 Speaker 2: drunken phone call with from Lost and that never happened. 792 00:45:02,120 --> 00:45:05,640 Speaker 2: That was completely invented by Peter Morgan. So similarly, I 793 00:45:05,760 --> 00:45:09,360 Speaker 2: have Sarah desperate to find out when the decision is 794 00:45:09,400 --> 00:45:11,000 Speaker 2: finally going to come down and she can go on 795 00:45:11,080 --> 00:45:13,279 Speaker 2: with her life, and so she calls the court to 796 00:45:13,400 --> 00:45:16,200 Speaker 2: try to get any intel she can from whatever clerk 797 00:45:16,239 --> 00:45:19,320 Speaker 2: answers the phone. And on this particular night when she calls, 798 00:45:19,640 --> 00:45:23,640 Speaker 2: Harry is busy working on the decision, and he answers 799 00:45:23,680 --> 00:45:26,359 Speaker 2: the phone and so he never reveals himself. So it's 800 00:45:26,360 --> 00:45:28,319 Speaker 2: the kind of scene that could have happened, although it 801 00:45:28,360 --> 00:45:31,640 Speaker 2: never did, and they have a very human conversation about 802 00:45:32,480 --> 00:45:35,319 Speaker 2: fathers and daughters. They're sort of a spiritual father and 803 00:45:35,400 --> 00:45:38,279 Speaker 2: daughter dynamic. Harry talks about his daughters and Sarah talks 804 00:45:38,280 --> 00:45:41,240 Speaker 2: about her father, who's so brilliantly played by Josh Hamilton 805 00:45:41,280 --> 00:45:53,640 Speaker 2: in the show Pretty Cool. This bonus episode of Supreme 806 00:45:53,800 --> 00:45:56,480 Speaker 2: The Battle for Row is hosted by me Aaron Tracy. 807 00:45:56,719 --> 00:45:59,840 Speaker 2: It's edited by Carl Catyl, music by Anna Stump and Hamilton. 808 00:45:59,880 --> 00:46:02,640 Speaker 2: Like Houser, a big thank you to the Yelle Broadcast 809 00:46:02,640 --> 00:46:05,960 Speaker 2: Studio and to Linda Greenhouse for offering her time and expertise. 810 00:46:06,840 --> 00:46:09,680 Speaker 2: Supreme The Battle for Row is a nine part audio 811 00:46:09,719 --> 00:46:12,680 Speaker 2: drama about the legal minds behind the historic Supreme Court 812 00:46:12,680 --> 00:46:13,680 Speaker 2: decision Roe v. 813 00:46:13,800 --> 00:46:14,120 Speaker 4: Wade. 814 00:46:14,600 --> 00:46:18,680 Speaker 2: Listen on iHeartRadio, Apple Podcasts, or wherever you get your podcasts. 815 00:46:19,040 --> 00:46:19,760 Speaker 2: Thanks for listening.