WEBVTT - Ep 10: Bonus - The Conversation 0:00:07.520 --> 0:00:12.120 Episode ten, the conversation between Supreme Court expert Linda Greenhouse 0:00:12.200 --> 0:00:14.120 and series creator Aaron Tracy. 0:00:20.400 --> 0:00:22.680 I'm Mary Tracy, the creator and writer of the nine 0:00:22.720 --> 0:00:25.319 episode audio drama you just heard. For this tenth and 0:00:25.360 --> 0:00:27.160 final episode of the season, we're going to do something 0:00:27.160 --> 0:00:29.800 a little different. The scripted portion of the podcast is 0:00:29.840 --> 0:00:32.800 behind us. No more Maya Hawk or William H. Macy 0:00:33.080 --> 0:00:35.240 or any of the other extraordinary actors from the show, 0:00:35.720 --> 0:00:39.760 but in their place for this bonus Linda Greenhouse. Linda 0:00:39.920 --> 0:00:42.280 is undoubtedly one of the world's experts on the Supreme 0:00:42.320 --> 0:00:45.440 Court and on Harry Blackhaman in particular. She covered the 0:00:45.479 --> 0:00:48.000 Supreme Court for three decades for The New York Times 0:00:48.200 --> 0:00:51.000 and was awarded the Pulitzer Prize and Journalism for her coverage. 0:00:51.159 --> 0:00:53.400 A little detail I love, by the way, when Linda 0:00:53.440 --> 0:00:56.760 retired from the Times, seven of the nine sitting Supreme 0:00:56.800 --> 0:00:59.880 Court justices attended a goodbye party for her. Linda all 0:01:00.120 --> 0:01:03.280 read the book Becoming Justice Blackman, which was hugely helpful 0:01:03.320 --> 0:01:05.959 to me in crafting the show. Linda is my colleague 0:01:06.000 --> 0:01:08.120 here at Yale, where I'm in the English department, and 0:01:08.160 --> 0:01:10.800 she teaches in the law school. She's about to join 0:01:10.840 --> 0:01:13.240 me here on campus, and I truly could not be 0:01:13.280 --> 0:01:25.640 more excited. So thanks for listening. Enjoy this bonus episode. 0:01:31.360 --> 0:01:33.160 All right, so, Linda, one of the things I was 0:01:33.200 --> 0:01:34.959 most interested in and that we deal with in the 0:01:34.959 --> 0:01:38.400 first few episodes of the show, is that Harry never 0:01:38.880 --> 0:01:41.400 wanted to be on the court. His best friend, Warren Berger, 0:01:41.959 --> 0:01:43.720 seemed like the much more and of course correct me 0:01:43.720 --> 0:01:46.160 if I'm wrong, but seemed like the much more ambitious 0:01:46.240 --> 0:01:48.400 man wanted to have his place in history, very much 0:01:48.440 --> 0:01:51.160 wanted to get to the Supreme Court. And Harry had 0:01:51.160 --> 0:01:53.280 to be led kicking and screaming a little bit. Is 0:01:53.320 --> 0:01:53.680 that true? 0:01:53.840 --> 0:01:55.840 Yeah, I wouldn't say so much kicking and screaming, but 0:01:55.920 --> 0:02:00.160 with great ambivalence. In a way, he kind of underestimated himself. 0:02:00.560 --> 0:02:03.320 He was very smart. He was Assuma Cumeloud, a graduate 0:02:03.680 --> 0:02:07.000 of Harvard, so you know, there was no moss growing 0:02:07.000 --> 0:02:12.160 on him intellectually. But his personality was very diffident, and 0:02:12.520 --> 0:02:16.359 he was happy living in Minneapolis and sitting on the 0:02:16.400 --> 0:02:19.840 eighth Circuit and worked very hard. And one of the 0:02:19.840 --> 0:02:22.799 things I found in his files was when he got 0:02:22.840 --> 0:02:26.600 the offer, he took out a piece of notebook paper 0:02:26.639 --> 0:02:30.240 and he wrote the pros and the cons of taking it, 0:02:30.280 --> 0:02:32.680 and they were about equal. I wish I could side 0:02:32.720 --> 0:02:34.480 off the top of my head with oh, well. 0:02:34.400 --> 0:02:36.160 I put Actually, I think I can name a few 0:02:36.200 --> 0:02:37.119 because I put them in the show. 0:02:37.200 --> 0:02:38.040 Oh okay, okay. 0:02:38.080 --> 0:02:40.280 The opening scene when we first meet Harry played by 0:02:40.320 --> 0:02:43.120 William H. Masy is he's at a bar by himself, 0:02:43.160 --> 0:02:46.040 waiting for Warren to show up, who's played by William Fickner, 0:02:46.320 --> 0:02:48.760 and Harry is jotting down that list of pros and cons, 0:02:49.080 --> 0:02:51.840 and so there are things like loss of contact with 0:02:51.919 --> 0:02:55.480 friends and family was a con. Potentially it hurting his 0:02:55.560 --> 0:02:58.280 relationship with Warren was a con. He didn't know how 0:02:58.280 --> 0:03:00.280 the friendship would survive. That they were both in the court. 0:03:00.520 --> 0:03:01.560 That was very precious. 0:03:08.200 --> 0:03:15.680 Another drink, everybody, Hello, buddy, looks like you got a 0:03:15.680 --> 0:03:19.520 lot more cons than pros. There? What your list on 0:03:19.560 --> 0:03:24.880 the cocktail napkin? There? Here? Let me see cons? Loss 0:03:24.880 --> 0:03:29.720 of contact with friends in my family? Please don't read that. Okay, 0:03:30.200 --> 0:03:34.160 what's the list for? I'm I might be offered a job. 0:03:34.520 --> 0:03:37.680 This is just this is how I chew things over 0:03:37.840 --> 0:03:41.960 a job in this economy. Whatever it is, Buddy, I 0:03:42.080 --> 0:03:47.960 take it. Mark I'll have whatever my buddy's drinking. Keep going. 0:03:55.560 --> 0:03:58.520 So what can you tell us about Sarah as a person. 0:03:58.800 --> 0:04:02.000 She seems like an unlike figure. Two have been involved 0:04:02.000 --> 0:04:04.560 in the most controversial legal case of the twentieth century. 0:04:05.040 --> 0:04:08.200 Yeah, I mean she didn't start out to be what 0:04:08.280 --> 0:04:12.640 she became. She was kind of recruited by a women's 0:04:12.680 --> 0:04:16.280 group in Austin, where she was living, who wanted advice 0:04:16.360 --> 0:04:21.080 on birth control actually, which was once again a contested issue, 0:04:21.120 --> 0:04:25.159 but was a contested issue back then, and this group 0:04:25.360 --> 0:04:28.359 urged her to be part of a challenge to the 0:04:28.400 --> 0:04:32.120 Texas abortion Law. The Texas abortion Law was one of 0:04:32.160 --> 0:04:36.640 the very common laws that outlawed abortion except for circumstances 0:04:36.680 --> 0:04:40.200 when a woman's life was endangered by the pregnancy. And 0:04:40.279 --> 0:04:42.599 she didn't really know what to do. But she and 0:04:42.640 --> 0:04:45.440 Linda Coffee had been classmates. I think Linda had been 0:04:45.440 --> 0:04:48.159 a much better law student and have clerked on the 0:04:48.200 --> 0:04:51.120 district court federal just record in Texas, which was a 0:04:51.160 --> 0:04:53.200 big deal for a woman in those days. 0:04:53.279 --> 0:04:55.440 Yeah, there were two of only five women in their 0:04:55.600 --> 0:04:56.760 entire law school class. 0:04:57.040 --> 0:04:59.520 Yeah, it speaks well of Sarah that she got into 0:04:59.640 --> 0:05:02.760 law at the University of Texas, which was and still 0:05:02.839 --> 0:05:04.880 is a very good law school. But Linda was the 0:05:04.880 --> 0:05:08.280 one who was actually a practicing lawyer, and they became 0:05:08.520 --> 0:05:11.520 partners in this enterprise. But I should just say there 0:05:11.520 --> 0:05:14.320 were cases like this popping up all over the country. 0:05:15.200 --> 0:05:19.040 The pipeline of courts all over the country were filling 0:05:19.120 --> 0:05:23.720 up with challenges to various abortion laws, one of which 0:05:23.760 --> 0:05:28.520 by that time actually has succeeded in California in state court, 0:05:28.560 --> 0:05:30.360 not in a federal court. So there was a lot 0:05:30.400 --> 0:05:34.479 going on, and there was no particular reason at the 0:05:34.520 --> 0:05:36.880 beginning of this case to think that this was going 0:05:36.960 --> 0:05:40.840 to be the one. There were actually better cases. I 0:05:40.880 --> 0:05:42.840 hate to say that after all these years, but there 0:05:42.920 --> 0:05:46.840 was a case that was developed by Yale Law School 0:05:47.400 --> 0:05:51.160 female students and some Yale Law School professors, a case 0:05:51.160 --> 0:05:54.760 that came to be known as Women against Connecticut on 0:05:54.839 --> 0:05:57.800 behalf of a thousand plaintiffs. The official name of the 0:05:57.839 --> 0:06:01.240 case is ably against Markel. That was in the pipeline 0:06:01.279 --> 0:06:03.760 and just missed out. Rogue got there first. 0:06:03.880 --> 0:06:04.360 Interesting. 0:06:04.520 --> 0:06:07.279 Yeah, History's made up of so many contentiencies, and the 0:06:07.360 --> 0:06:19.320 story of abortion in America is certainly one of them. 0:06:19.360 --> 0:06:20.080 What's the case? 0:06:20.320 --> 0:06:20.919 Does it matter? 0:06:21.080 --> 0:06:22.440 It's a real case, Sarah. 0:06:22.440 --> 0:06:22.960 What is it. 0:06:23.080 --> 0:06:30.599 We're challenging the Texas abortion laws in federal court. Don't 0:06:30.680 --> 0:06:32.720 laugh at me, Linda. How often do people with our 0:06:32.800 --> 0:06:37.240 chromosomes get actual legal work in this state? I just 0:06:37.279 --> 0:06:39.479 wish someone had warned me before three years of law 0:06:39.480 --> 0:06:41.000 school that no one would ever hire. 0:06:40.800 --> 0:06:44.120 Me, Sarah. Everyone warned you. 0:06:44.720 --> 0:06:47.240 And I know I'm not in the movement, okay, but 0:06:47.800 --> 0:06:50.440 this is a great opportunity to get some legal experience. 0:06:51.120 --> 0:06:56.560 I know it is. That's not why I laughed. I've 0:06:56.560 --> 0:06:58.040 been working on the same thing, Sarah. 0:06:58.120 --> 0:06:59.000 What are you talking about. 0:06:59.279 --> 0:07:01.359 I haven't gotten far. I had this day job, but 0:07:01.480 --> 0:07:04.400 I do have some research and a lot of ideas. 0:07:04.720 --> 0:07:06.520 I knew I came to the right person. 0:07:06.920 --> 0:07:10.360 Don't get excited. We're definitely going to lose. 0:07:10.800 --> 0:07:13.680 Who cares. I do have one question. I'm hoping you 0:07:13.720 --> 0:07:15.400 can help me with a right off the back though, Linda. 0:07:16.160 --> 0:07:16.600 And what's that? 0:07:17.120 --> 0:07:18.360 What the hell do we do? First? 0:07:31.520 --> 0:07:34.240 What can you tell us about Sarah and Linda as partners? 0:07:34.400 --> 0:07:36.600 The way I dramatized it, which is of course pulled 0:07:36.600 --> 0:07:39.320 from my research, is that they were a little bit 0:07:39.320 --> 0:07:42.320 similar to Warren and Harry and that they had very 0:07:42.320 --> 0:07:46.240 different strengths, very different personalities. It feels like Linda was 0:07:46.320 --> 0:07:49.960 fantastic with paperwork and with research, and as you said, 0:07:50.000 --> 0:07:52.640 she had clerked for a judge before, so she knew 0:07:52.640 --> 0:07:57.200 court procedure, whereas Sarah was someone who could captivate. She 0:07:57.280 --> 0:07:58.920 was someone who could speak in front of a judge 0:07:58.960 --> 0:07:59.960 and really get their ties. 0:08:01.000 --> 0:08:04.640 Yeah, she was missed outside and Linda was the inside, 0:08:04.840 --> 0:08:08.440 heavy lifter of the work. It was certainly a functional partnership. 0:08:08.480 --> 0:08:12.000 It was unequal in some ways. Sarah in her post 0:08:12.080 --> 0:08:14.679 row life was really out there swinging for the fences 0:08:14.760 --> 0:08:18.560 out on the speaking circuit and lionized in feminist circles, 0:08:19.080 --> 0:08:21.400 and Linda really disappeared from history. 0:08:21.840 --> 0:08:26.000 Yeah. And in the show, the performances are extraordinary. Maya 0:08:26.080 --> 0:08:30.880 Hawk plays Sarah Weddington, Abigail Breslin plays Linda Coffee. They're 0:08:30.880 --> 0:08:34.000 both just so incredibly great at capturing those different sorts 0:08:34.000 --> 0:08:36.160 of personalities that the two had. I want to talk 0:08:36.160 --> 0:08:40.240 a little bit about what the actual work was because 0:08:40.880 --> 0:08:43.520 I'm a huge fan of courtroom dramas. Most of my 0:08:43.520 --> 0:08:47.280 favorite movies in fact are courtroom dramas. But setting a 0:08:47.320 --> 0:08:49.920 show in the Supreme Court is very different. In a 0:08:49.960 --> 0:08:54.160 courtroom drama, you get witnesses and you get cross examinations, 0:08:54.400 --> 0:08:58.120 and you get interplay among the lawyers and the judge, 0:08:58.120 --> 0:09:01.760 and a Supreme Court drama, by necessity is very different. 0:09:01.880 --> 0:09:05.319 So in the show, we certainly recreated some of it 0:09:05.400 --> 0:09:10.160 where Sarah and her opposition are giving their oral arguments 0:09:10.200 --> 0:09:12.160 and I decided to cut back and forth between them 0:09:12.160 --> 0:09:14.319 and the justices are reading questions on them. But can 0:09:14.320 --> 0:09:16.520 you tell us a little bit about the differences between 0:09:16.880 --> 0:09:18.720 what goes on in Supreme Court and what goes on 0:09:18.840 --> 0:09:19.839 in a normal court of law. 0:09:20.400 --> 0:09:22.720 So I'll talk about the Supreme Court as it was, 0:09:23.520 --> 0:09:25.160 not the Supreme Court as it is. I have to 0:09:25.200 --> 0:09:28.880 say post pandemic arguments that the court have become really 0:09:28.920 --> 0:09:31.240 wild and wooly and they're not like they were, by 0:09:31.280 --> 0:09:35.800 which I mean in the pre pandemic days, a Supreme 0:09:35.840 --> 0:09:40.240 Court argument lasted for an hour a half hour per side, 0:09:40.880 --> 0:09:43.960 and the one who went first noticed the petitioner or 0:09:43.960 --> 0:09:46.000 in the case of rob Is that the appellant would 0:09:46.040 --> 0:09:48.960 save five minutes at the end for rebuttal. And it 0:09:49.040 --> 0:09:52.679 was very scripted in that way. And when your red 0:09:52.800 --> 0:09:55.000 light went on, that meant your thirty minutes were up, 0:09:55.040 --> 0:09:58.280 you stopped talking, or the Chief Justice was going to say, counsel, 0:09:58.360 --> 0:10:02.160 your time has expired. So there was not in real life, 0:10:02.240 --> 0:10:04.280 you know, kind of back and forth, but there was 0:10:04.320 --> 0:10:08.600 a lot of questioning, and justices could jump in at 0:10:08.640 --> 0:10:12.240 any time, and that's still the case, of course, and 0:10:12.640 --> 0:10:16.840 just try to ask hypothetical questions, the purpose being the 0:10:16.880 --> 0:10:19.520 court knows now. Row might have been a little different 0:10:19.520 --> 0:10:23.400 because the Court knew it was embarking into kind of 0:10:23.480 --> 0:10:28.200 unknown territory. But in the typical case, the Court doesn't 0:10:28.280 --> 0:10:32.160 view itself as resolving a particular dispute, but really as 0:10:32.240 --> 0:10:36.400 the lawgiver for the for the whole system. So they 0:10:36.440 --> 0:10:38.240 don't just want to know what to do with you. 0:10:38.880 --> 0:10:41.720 They want to know, if we do what you want 0:10:41.800 --> 0:10:44.080 us to do with you, what are the implications for 0:10:44.160 --> 0:10:47.240 the next case. Where does this go? What road should 0:10:47.320 --> 0:10:49.920 we go down that you're offering us, What road had 0:10:49.960 --> 0:10:52.640 we better avoid? Or we're going to open up a 0:10:52.679 --> 0:10:57.360 whole hornet's nest of new legal problems. That's the reason 0:10:57.440 --> 0:10:58.439 for the questioning. 0:10:59.080 --> 0:11:02.000 Really, yeah, I went to visit the Supreme Court. It's 0:11:02.080 --> 0:11:04.080 research for writing the show, and one of the things 0:11:04.120 --> 0:11:07.120 that struck me the most was when you were standing 0:11:07.320 --> 0:11:10.920 at the advocate's lectern and you reach out your hand, 0:11:11.240 --> 0:11:14.240 if the Chief Justice leaned down or reach out his hand, 0:11:14.440 --> 0:11:17.160 you could shake. That's how close you are to the bench. 0:11:17.520 --> 0:11:21.760 And for Sarah at twenty six years old, never having 0:11:22.000 --> 0:11:24.240 taken on a contested case before, it must have been 0:11:24.320 --> 0:11:27.360 absolutely terrifying for her to stand at the lectern with 0:11:27.480 --> 0:11:31.280 Thurgood Marshall raining down questions and Warren Berger and Harry Blackman. 0:11:31.400 --> 0:11:33.520 That must have just been so overwhelming. 0:11:33.720 --> 0:11:33.840 Well. 0:11:33.920 --> 0:11:37.200 Yeah. In fact, Ruth Ginsberg, who had many arguments before 0:11:37.240 --> 0:11:40.280 the Supreme Court when she was a civil rights advocate 0:11:40.320 --> 0:11:43.240 before she came a judge, talked about how intimidating it 0:11:43.360 --> 0:11:45.960 was and how nervous she was, and if she had 0:11:45.960 --> 0:11:49.800 an afternoon argument she never had lunch. Really, yes, I 0:11:49.840 --> 0:11:52.200 think it's a very scary thing. There's a good new 0:11:52.240 --> 0:11:55.040 book out actually people might like to know about. It's 0:11:55.120 --> 0:11:58.040 called in the Chamber of the Appellate Gods and is 0:11:58.280 --> 0:12:02.680 filewoman who had her one Supreme Court argument would turn 0:12:02.720 --> 0:12:05.600 out to be a big criminal case, a case called 0:12:05.640 --> 0:12:08.960 a prendy, And she writes about it's almost like kind 0:12:08.960 --> 0:12:12.920 of diary entries of her preparation and her terror of 0:12:12.960 --> 0:12:15.440 getting up there representing the state of New Jersey. She 0:12:15.520 --> 0:12:18.679 was a state lawyer, so yeah, there's nobody who can 0:12:18.880 --> 0:12:20.240 take it casually. 0:12:20.000 --> 0:12:22.360 And it must have been all the more disconcerting for Sarah. 0:12:22.400 --> 0:12:25.120 I think you write about in your book about Blackman Somewhere. 0:12:25.120 --> 0:12:29.320 I read it that Sarah before argument was looking for 0:12:29.400 --> 0:12:32.400 the restroom, but of course there was no women's restroom 0:12:32.480 --> 0:12:34.280 in the layer's lounge, and so she had to go 0:12:34.280 --> 0:12:35.720 all the way down to the basement. There were so 0:12:35.760 --> 0:12:37.959 few women who worked at the Supreme Court, and I'm 0:12:37.960 --> 0:12:39.560 sure that frazzled her a little bit too. 0:12:40.160 --> 0:12:43.280 Yeah, and as you said, with the potential handshaking between 0:12:43.320 --> 0:12:46.920 the advocate and the chief Justice. It's a grand chamber, 0:12:46.960 --> 0:12:50.400 but it's very intimate. I mean, it holds about maybe 0:12:50.440 --> 0:12:54.199 four hundred people, which is not small, but the kind 0:12:54.280 --> 0:12:58.000 of way it's arranged, there's an intimacy to it, much 0:12:58.040 --> 0:12:59.680 more so than people would expect. 0:12:59.679 --> 0:13:02.520 I think, yeah, totally. The entire courthouse is so interesting. 0:13:02.600 --> 0:13:06.160 Each justice's chambers are much smaller than I would have imagined. 0:13:06.720 --> 0:13:09.920 There are all sorts of very old fashioned parts to it. 0:13:10.000 --> 0:13:12.440 There's a spiral staircase in the back where I set 0:13:12.480 --> 0:13:16.240 a scene, and the main hallway is so grand with 0:13:16.360 --> 0:13:19.040 busts of all the former justices, it can be an 0:13:19.080 --> 0:13:20.000 intimidating place. 0:13:20.160 --> 0:13:22.640 I once tagged along when I was a reporter at 0:13:22.679 --> 0:13:26.280 the court, tagged along on a public tour just to 0:13:26.440 --> 0:13:30.079 see what the public was told. But we were taken 0:13:30.160 --> 0:13:34.360 up into the chamber, which has, as you saw, long 0:13:34.840 --> 0:13:38.800 red velvet curtains ceiling to floor curtains, and the tour 0:13:38.840 --> 0:13:43.199 guide said, now on these curtains are the longest zippers 0:13:43.280 --> 0:13:50.920 in the world. I remember hearing that, thinking, so, you say, I. 0:13:50.880 --> 0:13:52.560 Don't know how anybody can prove that. That is a 0:13:52.760 --> 0:13:55.400 very interesting fact to brag about. That does remind me 0:13:55.400 --> 0:13:57.600 that there's one very strange setting where I set a 0:13:57.600 --> 0:14:01.960 couple scenes. There's a robing room right backstage. Reminds me 0:14:02.120 --> 0:14:04.440 of the dugout before players take the field in a 0:14:04.440 --> 0:14:07.320 baseball game. This is where justice is. As I say this, 0:14:07.400 --> 0:14:09.720 it almost feels like it can't be true, but justices 0:14:09.920 --> 0:14:12.720 have sort of lockers and they put on their robes 0:14:12.760 --> 0:14:15.160 back there before going out into court. Is that right? 0:14:15.640 --> 0:14:16.000 Yeah? 0:14:16.120 --> 0:14:18.240 Yeah, So they have clothes under their Rubes. 0:14:18.960 --> 0:14:21.640 But yes, and are they just chatting back there about 0:14:21.640 --> 0:14:24.200 what's about to happen. I mean it feels so I 0:14:24.200 --> 0:14:26.280 don't know something about It feels so much like a 0:14:26.360 --> 0:14:30.120 sport rather than these distinguished justices that we're used to imagining. 0:14:30.600 --> 0:14:33.520 I don't actually think they're chatting. If they're chatting, it's 0:14:33.560 --> 0:14:36.160 not about the cases they're about to hear. I think 0:14:36.200 --> 0:14:40.000 that's the norm at the court that they don't chat 0:14:40.240 --> 0:14:43.000 in advance. They do their homework in advance. The Supreme 0:14:43.080 --> 0:14:45.720 Court's what is known as a hot bench, and that 0:14:45.800 --> 0:14:49.280 doesn't mean what it sounds like. It doesn't mean they're 0:14:49.360 --> 0:14:51.880 yelling and screaming and throwing things. A hot bench means 0:14:52.200 --> 0:14:56.040 they come unprepared, they've done their homework, as opposed to 0:14:56.720 --> 0:14:59.760 there were courts where the notion is, we're not going 0:14:59.800 --> 0:15:02.120 to do anything in advance. Let's just see how the 0:15:02.200 --> 0:15:04.680 argument goes and how the argument strikes us. They don't 0:15:04.720 --> 0:15:06.280 schmooze about it in real time. 0:15:06.560 --> 0:15:10.400 So tell me about the relationship between Harry and Warren, 0:15:10.800 --> 0:15:13.640 because I'm completely fascinated by it. One of the things 0:15:13.640 --> 0:15:15.560 that first made me want to write the show was 0:15:15.600 --> 0:15:18.760 when I realized that the author of Rovi Wade on 0:15:18.760 --> 0:15:21.840 the Court was Harry Blackman, whose best friend, his life 0:15:21.920 --> 0:15:24.320 long best friend, was the Chief Justice. 0:15:24.600 --> 0:15:27.160 Right so they grew up together in the Saint Paul. 0:15:27.480 --> 0:15:31.000 They came from quite different backgrounds and had quite different 0:15:31.400 --> 0:15:36.000 trajectories as young people. Harry's family had very little money, 0:15:36.040 --> 0:15:39.840 but they had some and he goes off to Harvard 0:15:39.920 --> 0:15:43.720 on a Harvard Club of Minneapolis scholarship, and that was 0:15:43.760 --> 0:15:48.360 a real kind of bursting out of the rather narrow 0:15:48.680 --> 0:15:54.280 circumstances of his childhood. And Berger didn't have that leap 0:15:54.400 --> 0:15:58.600 to make. Harry always loved medicine, and he actually wanted 0:15:58.640 --> 0:16:01.840 to go to medical school, but that would have required 0:16:02.080 --> 0:16:06.800 staying longer as an undergrad and taking some of the 0:16:06.840 --> 0:16:11.120 requisite science courses that he hadn't taken, and so law 0:16:11.240 --> 0:16:13.080 was really his kind of second choice. But once he 0:16:13.200 --> 0:16:17.120 made that choice, and he had a nice clerkship, not 0:16:17.280 --> 0:16:20.680 in the Supreme Court but lower federal court clerkship, and 0:16:20.760 --> 0:16:23.000 a good law practice, and that's what he was devoting 0:16:23.040 --> 0:16:29.200 himself to. Berger decided to make his way in Republican politics. 0:16:30.080 --> 0:16:33.320 And of course Republican politics in Minnesota are not the 0:16:33.360 --> 0:16:37.160 Republican politics that we see today, but he was certainly 0:16:37.160 --> 0:16:41.880 on the conservative side. Nonetheless, he ingratiated himself to Dwight 0:16:41.920 --> 0:16:46.200 Eisenhower at the Republican National Convention in nineteen fifty two 0:16:46.560 --> 0:16:50.200 when Eisenhower had a serious opponent for the nomination. Taft 0:16:50.480 --> 0:16:56.080 and Berger was quite influential in throwing the convention to Eisenhower. 0:16:56.160 --> 0:16:58.440 And he got his reward, which was to come to 0:16:58.560 --> 0:17:02.240 Washington and significant job in the Justice Department as an 0:17:02.280 --> 0:17:05.600 assistant Attorney General. And you know then he was often 0:17:05.680 --> 0:17:08.280 running and he got a seat on the DC Circuit, 0:17:08.359 --> 0:17:12.120 often called, I think with reason, the second most important 0:17:12.160 --> 0:17:16.119 federal court in the country, second only to the Supreme Court. 0:17:16.720 --> 0:17:19.639 And he almost immediately started lobbying to get on the 0:17:19.640 --> 0:17:23.440 Supreme Court. He went around the country giving speeches, very 0:17:23.480 --> 0:17:27.160 conservative law and order type of speeches, and things broke 0:17:27.200 --> 0:17:31.200 his way, and Richard Nixon got elected and or Warren retired, 0:17:31.440 --> 0:17:34.159 Nixon had a vacancy to fill for Chief Justice, and 0:17:35.119 --> 0:17:39.080 there was Warren Berger with his hand up and was 0:17:39.240 --> 0:17:42.479 a very attractive candidate from Nixon's point of view. So 0:17:42.560 --> 0:17:43.439 that was his story. 0:17:43.920 --> 0:17:46.160 And then when he was on the court, a vacancy 0:17:46.200 --> 0:17:51.119 opened up and Nixon's first two nominees to fill that 0:17:51.240 --> 0:17:54.439 vacancy both fell in the Senate, and so Nixon was 0:17:54.480 --> 0:17:57.800 desperate to find someone I guess you tell me if 0:17:57.800 --> 0:18:01.040 I'm wrong, but to find someone uncontroversial who could fill 0:18:01.119 --> 0:18:04.240 that third seat. And Warren whispered to his buddy Nixon, 0:18:04.960 --> 0:18:07.320 my best friend from childhood is your guy. 0:18:07.760 --> 0:18:11.800 And Blackman was totally uncontroversial, and that he was totally 0:18:11.840 --> 0:18:15.040 unknown and not on anybody's screen didn't push any of 0:18:15.080 --> 0:18:19.800 the hot buttons that Hainesworth and Carswill that defeated nominees 0:18:19.960 --> 0:18:26.280 had encountered opposition from the Democratic controlled Congress, So yeah, 0:18:26.359 --> 0:18:27.480 why not Harry Blackman. 0:18:28.160 --> 0:18:30.080 It's such a great irony and so great for the 0:18:30.119 --> 0:18:34.320 drama that Harry Blackman was brought onto the Court because 0:18:34.359 --> 0:18:37.760 he was incredibly uncontroversial that he might actually get through 0:18:38.280 --> 0:18:39.920 and of course ended up being one of the most 0:18:39.920 --> 0:18:44.360 controversial justices of all time because he authored the decision 0:18:44.600 --> 0:18:45.760 in Roe v. Wade. 0:18:45.920 --> 0:18:50.080 There's so many ironies, because of course Roe wasn't Harry 0:18:50.160 --> 0:18:54.120 Blackman alone. It was a seven to two decision. If 0:18:54.119 --> 0:18:56.600 you ask most people just walking down the street who 0:18:56.600 --> 0:18:58.639 think they know anything about the Supreme Court, what was 0:18:58.680 --> 0:19:01.800 the vote in row against Wade. I guarantee they would 0:19:01.760 --> 0:19:04.280 say five to four, right, But it was seven to two, 0:19:04.280 --> 0:19:09.200 including three of Nixon's four appointees, including warren Berger, who 0:19:09.240 --> 0:19:13.119 is the one who assigned Blackman to this task. Although 0:19:13.320 --> 0:19:16.480 black Men forever in history will be known as the 0:19:16.600 --> 0:19:20.639 justice who wrote against Wade, it was a collective effort 0:19:20.840 --> 0:19:23.199 and everybody else kind of skated free, and he's the 0:19:23.200 --> 0:19:24.560 one who got stuck with it. Right. 0:19:24.640 --> 0:19:26.359 Yeah, And let's talk about that for a second, because 0:19:26.400 --> 0:19:28.040 I make a meal out of that in the final 0:19:28.080 --> 0:19:30.680 few episodes as black Man is trying to win votes 0:19:30.720 --> 0:19:34.159 to his side. First, why did warren Berger assign the 0:19:34.200 --> 0:19:37.080 decision of Rovie Wade to black Men? He had never 0:19:37.119 --> 0:19:40.560 written a major decision before. Why give him the abortion 0:19:40.640 --> 0:19:42.520 controversy for his first thing. 0:19:42.920 --> 0:19:45.960 It's a mystery that's never been quite explained. But I 0:19:46.000 --> 0:19:49.760 think we have to understand the context, and the context 0:19:49.880 --> 0:19:53.879 is a little bit counterintuitive. The Court had an awful 0:19:53.880 --> 0:19:57.800 lot on his plate, and abortion was not the hot 0:19:57.840 --> 0:20:02.680 issue that it then became after the careful cultivation by 0:20:02.680 --> 0:20:06.720 the Republican Party to turn it into the culture war 0:20:06.840 --> 0:20:10.800 issue of our time. It was not that. Actually there 0:20:10.920 --> 0:20:15.320 was a fairly wide consensus in the country, everybody except 0:20:15.359 --> 0:20:20.600 the bishops, that it was time to modernize the era 0:20:20.920 --> 0:20:25.359 of the criminalization of abortion. So the court knew it 0:20:25.400 --> 0:20:27.119 was a bit of a hot potato, but they had 0:20:27.160 --> 0:20:30.199 a lot of hot potatoes in those days, largely with 0:20:30.440 --> 0:20:35.879 criminal law, with the civil rights cases, religion, prayer and schools. 0:20:35.960 --> 0:20:38.400 A lot of stuff was going on. You know, everybody 0:20:38.600 --> 0:20:41.160 gets their share of opinions at the court. The way 0:20:41.160 --> 0:20:45.159 the court works is it sits in two week argument 0:20:45.240 --> 0:20:50.640 sessions scattered throughout the term, and every justice is supposed 0:20:50.680 --> 0:20:54.159 to get roughly the same number of opinion assignments for 0:20:54.320 --> 0:20:58.320 every one of the two week sittings. And so I 0:20:58.400 --> 0:21:01.960 never went back to see who had the other opinions 0:21:02.040 --> 0:21:05.520 in the first time role was argued, which was in 0:21:05.760 --> 0:21:08.240 early nineteen seventy. 0:21:07.960 --> 0:21:11.200 Two, Yeah, let me just take a quick side there. 0:21:11.680 --> 0:21:14.760 So Roe v. Wade was argued twice, one year apart, 0:21:14.800 --> 0:21:16.600 and the first time it was argued there were only 0:21:16.640 --> 0:21:19.840 seven sitting justices, and then they decided that this was 0:21:19.880 --> 0:21:23.240 too important a decision to be decided by a small court, 0:21:23.520 --> 0:21:26.440 and so Sarah had to go back the following year 0:21:26.960 --> 0:21:29.680 and argue it all over again when there were nine justices, 0:21:30.160 --> 0:21:33.040 And that's one of those examples of for dramatic effect, 0:21:33.400 --> 0:21:36.480 I just decided to conflate the two. It would just 0:21:36.520 --> 0:21:39.920 be too confusing to have two separate trials in the show, 0:21:40.119 --> 0:21:43.600 so I conflated them. But for the most part, the 0:21:43.840 --> 0:21:46.320 Supreme Court case that we hear in the show is 0:21:46.320 --> 0:21:47.399 that second argument. 0:21:47.720 --> 0:21:50.119 And the fact that there are two arguments tells us something. 0:21:50.119 --> 0:21:52.400 And here's what it tells us. Justice Harlan and Justice 0:21:52.440 --> 0:21:56.320 black Ab roughly retired at the beginning of the nineteen 0:21:56.359 --> 0:22:00.720 seventy one term, leaving, as you just said, justices, and 0:22:00.760 --> 0:22:03.840 they had a bunch of cases scheduled for argument. So 0:22:03.960 --> 0:22:06.320 what to do? And they set up a little committee. 0:22:06.760 --> 0:22:10.040 And I never quite could get this is from Blackman's notes. 0:22:10.680 --> 0:22:13.440 I never could quite get the full membership of it. 0:22:13.840 --> 0:22:16.240 But I think Blackman was on that, Potter Stewart was 0:22:16.240 --> 0:22:19.960 on it to decide which of the cases were so 0:22:20.160 --> 0:22:25.240 important that they should be held for the two vacancies 0:22:25.280 --> 0:22:28.479