Speaker 1: Episode ten, the conversation between Supreme Court expert Linda Greenhouse
Speaker 1: and series creator Aaron Tracy.
Speaker 2: I'm Mary Tracy, the creator and writer of the nine
Speaker 2: episode audio drama you just heard. For this tenth and
Speaker 2: final episode of the season, we're going to do something
Speaker 2: a little different. The scripted portion of the podcast is
Speaker 2: behind us. No more Maya Hawk or William H. Macy
Speaker 2: or any of the other extraordinary actors from the show,
Speaker 2: but in their place for this bonus Linda Greenhouse. Linda
Speaker 2: is undoubtedly one of the world's experts on the Supreme
Speaker 2: Court and on Harry Blackhaman in particular. She covered the
Speaker 2: Supreme Court for three decades for The New York Times
Speaker 2: and was awarded the Pulitzer Prize and Journalism for her coverage.
Speaker 2: A little detail I love, by the way, when Linda
Speaker 2: retired from the Times, seven of the nine sitting Supreme
Speaker 2: Court justices attended a goodbye party for her. Linda all
Speaker 2: read the book Becoming Justice Blackman, which was hugely helpful
Speaker 2: to me in crafting the show. Linda is my colleague
Speaker 2: here at Yale, where I'm in the English department, and
Speaker 2: she teaches in the law school. She's about to join
Speaker 2: me here on campus, and I truly could not be
Speaker 2: more excited. So thanks for listening. Enjoy this bonus episode.
Speaker 2: All right, so, Linda, one of the things I was
Speaker 2: most interested in and that we deal with in the
Speaker 2: first few episodes of the show, is that Harry never
Speaker 2: wanted to be on the court. His best friend, Warren Berger,
Speaker 2: seemed like the much more and of course correct me
Speaker 2: if I'm wrong, but seemed like the much more ambitious
Speaker 2: man wanted to have his place in history, very much
Speaker 2: wanted to get to the Supreme Court. And Harry had
Speaker 2: to be led kicking and screaming a little bit. Is
Speaker 2: that true?
Speaker 3: Yeah, I wouldn't say so much kicking and screaming, but
Speaker 3: with great ambivalence. In a way, he kind of underestimated himself.
Speaker 3: He was very smart. He was Assuma Cumeloud, a graduate
Speaker 3: of Harvard, so you know, there was no moss growing
Speaker 3: on him intellectually. But his personality was very diffident, and
Speaker 3: he was happy living in Minneapolis and sitting on the
Speaker 3: eighth Circuit and worked very hard. And one of the
Speaker 3: things I found in his files was when he got
Speaker 3: the offer, he took out a piece of notebook paper
Speaker 3: and he wrote the pros and the cons of taking it,
Speaker 3: and they were about equal. I wish I could side
Speaker 3: off the top of my head with oh, well.
Speaker 2: I put Actually, I think I can name a few
Speaker 2: because I put them in the show.
Speaker 3: Oh okay, okay.
Speaker 2: The opening scene when we first meet Harry played by
Speaker 2: William H. Masy is he's at a bar by himself,
Speaker 2: waiting for Warren to show up, who's played by William Fickner,
Speaker 2: and Harry is jotting down that list of pros and cons,
Speaker 2: and so there are things like loss of contact with
Speaker 2: friends and family was a con. Potentially it hurting his
Speaker 2: relationship with Warren was a con. He didn't know how
Speaker 2: the friendship would survive. That they were both in the court.
Speaker 3: That was very precious.
Speaker 4: Another drink, everybody, Hello, buddy, looks like you got a
Speaker 4: lot more cons than pros. There? What your list on
Speaker 4: the cocktail napkin? There? Here? Let me see cons? Loss
Speaker 4: of contact with friends in my family? Please don't read that. Okay,
Speaker 4: what's the list for? I'm I might be offered a job.
Speaker 4: This is just this is how I chew things over
Speaker 4: a job in this economy. Whatever it is, Buddy, I
Speaker 4: take it. Mark I'll have whatever my buddy's drinking. Keep going.
Speaker 2: So what can you tell us about Sarah as a person.
Speaker 2: She seems like an unlike figure. Two have been involved
Speaker 2: in the most controversial legal case of the twentieth century.
Speaker 3: Yeah, I mean she didn't start out to be what
Speaker 3: she became. She was kind of recruited by a women's
Speaker 3: group in Austin, where she was living, who wanted advice
Speaker 3: on birth control actually, which was once again a contested issue,
Speaker 3: but was a contested issue back then, and this group
Speaker 3: urged her to be part of a challenge to the
Speaker 3: Texas abortion Law. The Texas abortion Law was one of
Speaker 3: the very common laws that outlawed abortion except for circumstances
Speaker 3: when a woman's life was endangered by the pregnancy. And
Speaker 3: she didn't really know what to do. But she and
Speaker 3: Linda Coffee had been classmates. I think Linda had been
Speaker 3: a much better law student and have clerked on the
Speaker 3: district court federal just record in Texas, which was a
Speaker 3: big deal for a woman in those days.
Speaker 2: Yeah, there were two of only five women in their
Speaker 2: entire law school class.
Speaker 3: Yeah, it speaks well of Sarah that she got into
Speaker 3: law at the University of Texas, which was and still
Speaker 3: is a very good law school. But Linda was the
Speaker 3: one who was actually a practicing lawyer, and they became
Speaker 3: partners in this enterprise. But I should just say there
Speaker 3: were cases like this popping up all over the country.
Speaker 3: The pipeline of courts all over the country were filling
Speaker 3: up with challenges to various abortion laws, one of which
Speaker 3: by that time actually has succeeded in California in state court,
Speaker 3: not in a federal court. So there was a lot
Speaker 3: going on, and there was no particular reason at the
Speaker 3: beginning of this case to think that this was going
Speaker 3: to be the one. There were actually better cases. I
Speaker 3: hate to say that after all these years, but there
Speaker 3: was a case that was developed by Yale Law School
Speaker 3: female students and some Yale Law School professors, a case
Speaker 3: that came to be known as Women against Connecticut on
Speaker 3: behalf of a thousand plaintiffs. The official name of the
Speaker 3: case is ably against Markel. That was in the pipeline
Speaker 3: and just missed out. Rogue got there first.
Speaker 2: Interesting.
Speaker 3: Yeah, History's made up of so many contentiencies, and the
Speaker 3: story of abortion in America is certainly one of them.
Speaker 5: What's the case?
Speaker 2: Does it matter?
Speaker 1: It's a real case, Sarah.
Speaker 2: What is it.
Speaker 1: We're challenging the Texas abortion laws in federal court. Don't
Speaker 1: laugh at me, Linda. How often do people with our
Speaker 1: chromosomes get actual legal work in this state? I just
Speaker 1: wish someone had warned me before three years of law
Speaker 1: school that no one would ever hire.
Speaker 5: Me, Sarah. Everyone warned you.
Speaker 1: And I know I'm not in the movement, okay, but
Speaker 1: this is a great opportunity to get some legal experience.
Speaker 5: I know it is. That's not why I laughed. I've
Speaker 5: been working on the same thing, Sarah.
Speaker 1: What are you talking about.
Speaker 5: I haven't gotten far. I had this day job, but
Speaker 5: I do have some research and a lot of ideas.
Speaker 1: I knew I came to the right person.
Speaker 5: Don't get excited. We're definitely going to lose.
Speaker 1: Who cares. I do have one question. I'm hoping you
Speaker 1: can help me with a right off the back though, Linda.
Speaker 5: And what's that?
Speaker 1: What the hell do we do? First?
Speaker 2: What can you tell us about Sarah and Linda as partners?
Speaker 2: The way I dramatized it, which is of course pulled
Speaker 2: from my research, is that they were a little bit
Speaker 2: similar to Warren and Harry and that they had very
Speaker 2: different strengths, very different personalities. It feels like Linda was
Speaker 2: fantastic with paperwork and with research, and as you said,
Speaker 2: she had clerked for a judge before, so she knew
Speaker 2: court procedure, whereas Sarah was someone who could captivate. She
Speaker 2: was someone who could speak in front of a judge
Speaker 2: and really get their ties.
Speaker 3: Yeah, she was missed outside and Linda was the inside,
Speaker 3: heavy lifter of the work. It was certainly a functional partnership.
Speaker 3: It was unequal in some ways. Sarah in her post
Speaker 3: row life was really out there swinging for the fences
Speaker 3: out on the speaking circuit and lionized in feminist circles,
Speaker 3: and Linda really disappeared from history.
Speaker 2: Yeah. And in the show, the performances are extraordinary. Maya
Speaker 2: Hawk plays Sarah Weddington, Abigail Breslin plays Linda Coffee. They're
Speaker 2: both just so incredibly great at capturing those different sorts
Speaker 2: of personalities that the two had. I want to talk
Speaker 2: a little bit about what the actual work was because
Speaker 2: I'm a huge fan of courtroom dramas. Most of my
Speaker 2: favorite movies in fact are courtroom dramas. But setting a
Speaker 2: show in the Supreme Court is very different. In a
Speaker 2: courtroom drama, you get witnesses and you get cross examinations,
Speaker 2: and you get interplay among the lawyers and the judge,
Speaker 2: and a Supreme Court drama, by necessity is very different.
Speaker 2: So in the show, we certainly recreated some of it
Speaker 2: where Sarah and her opposition are giving their oral arguments
Speaker 2: and I decided to cut back and forth between them
Speaker 2: and the justices are reading questions on them. But can
Speaker 2: you tell us a little bit about the differences between
Speaker 2: what goes on in Supreme Court and what goes on
Speaker 2: in a normal court of law.
Speaker 3: So I'll talk about the Supreme Court as it was,
Speaker 3: not the Supreme Court as it is. I have to
Speaker 3: say post pandemic arguments that the court have become really
Speaker 3: wild and wooly and they're not like they were, by
Speaker 3: which I mean in the pre pandemic days, a Supreme
Speaker 3: Court argument lasted for an hour a half hour per side,
Speaker 3: and the one who went first noticed the petitioner or
Speaker 3: in the case of rob Is that the appellant would
Speaker 3: save five minutes at the end for rebuttal. And it
Speaker 3: was very scripted in that way. And when your red
Speaker 3: light went on, that meant your thirty minutes were up,
Speaker 3: you stopped talking, or the Chief Justice was going to say, counsel,
Speaker 3: your time has expired. So there was not in real life,
Speaker 3: you know, kind of back and forth, but there was
Speaker 3: a lot of questioning, and justices could jump in at
Speaker 3: any time, and that's still the case, of course, and
Speaker 3: just try to ask hypothetical questions, the purpose being the
Speaker 3: court knows now. Row might have been a little different
Speaker 3: because the Court knew it was embarking into kind of
Speaker 3: unknown territory. But in the typical case, the Court doesn't
Speaker 3: view itself as resolving a particular dispute, but really as
Speaker 3: the lawgiver for the for the whole system. So they
Speaker 3: don't just want to know what to do with you.
Speaker 3: They want to know, if we do what you want
Speaker 3: us to do with you, what are the implications for
Speaker 3: the next case. Where does this go? What road should
Speaker 3: we go down that you're offering us, What road had
Speaker 3: we better avoid? Or we're going to open up a
Speaker 3: whole hornet's nest of new legal problems. That's the reason
Speaker 3: for the questioning.
Speaker 2: Really, yeah, I went to visit the Supreme Court. It's
Speaker 2: research for writing the show, and one of the things
Speaker 2: that struck me the most was when you were standing
Speaker 2: at the advocate's lectern and you reach out your hand,
Speaker 2: if the Chief Justice leaned down or reach out his hand,
Speaker 2: you could shake. That's how close you are to the bench.
Speaker 2: And for Sarah at twenty six years old, never having
Speaker 2: taken on a contested case before, it must have been
Speaker 2: absolutely terrifying for her to stand at the lectern with
Speaker 2: Thurgood Marshall raining down questions and Warren Berger and Harry Blackman.
Speaker 2: That must have just been so overwhelming.
Speaker 1: Well.
Speaker 3: Yeah. In fact, Ruth Ginsberg, who had many arguments before
Speaker 3: the Supreme Court when she was a civil rights advocate
Speaker 3: before she came a judge, talked about how intimidating it
Speaker 3: was and how nervous she was, and if she had
Speaker 3: an afternoon argument she never had lunch. Really, yes, I
Speaker 3: think it's a very scary thing. There's a good new
Speaker 3: book out actually people might like to know about. It's
Speaker 3: called in the Chamber of the Appellate Gods and is
Speaker 3: filewoman who had her one Supreme Court argument would turn
Speaker 3: out to be a big criminal case, a case called
Speaker 3: a prendy, And she writes about it's almost like kind
Speaker 3: of diary entries of her preparation and her terror of
Speaker 3: getting up there representing the state of New Jersey. She
Speaker 3: was a state lawyer, so yeah, there's nobody who can
Speaker 3: take it casually.
Speaker 2: And it must have been all the more disconcerting for Sarah.
Speaker 2: I think you write about in your book about Blackman Somewhere.
Speaker 2: I read it that Sarah before argument was looking for
Speaker 2: the restroom, but of course there was no women's restroom
Speaker 2: in the layer's lounge, and so she had to go
Speaker 2: all the way down to the basement. There were so
Speaker 2: few women who worked at the Supreme Court, and I'm
Speaker 2: sure that frazzled her a little bit too.
Speaker 3: Yeah, and as you said, with the potential handshaking between
Speaker 3: the advocate and the chief Justice. It's a grand chamber,
Speaker 3: but it's very intimate. I mean, it holds about maybe
Speaker 3: four hundred people, which is not small, but the kind
Speaker 3: of way it's arranged, there's an intimacy to it, much
Speaker 3: more so than people would expect.
Speaker 2: I think, yeah, totally. The entire courthouse is so interesting.
Speaker 2: Each justice's chambers are much smaller than I would have imagined.
Speaker 2: There are all sorts of very old fashioned parts to it.
Speaker 2: There's a spiral staircase in the back where I set
Speaker 2: a scene, and the main hallway is so grand with
Speaker 2: busts of all the former justices, it can be an
Speaker 2: intimidating place.
Speaker 3: I once tagged along when I was a reporter at
Speaker 3: the court, tagged along on a public tour just to
Speaker 3: see what the public was told. But we were taken
Speaker 3: up into the chamber, which has, as you saw, long
Speaker 3: red velvet curtains ceiling to floor curtains, and the tour
Speaker 3: guide said, now on these curtains are the longest zippers
Speaker 3: in the world. I remember hearing that, thinking, so, you say, I.
Speaker 2: Don't know how anybody can prove that. That is a
Speaker 2: very interesting fact to brag about. That does remind me
Speaker 2: that there's one very strange setting where I set a
Speaker 2: couple scenes. There's a robing room right backstage. Reminds me
Speaker 2: of the dugout before players take the field in a
Speaker 2: baseball game. This is where justice is. As I say this,
Speaker 2: it almost feels like it can't be true, but justices
Speaker 2: have sort of lockers and they put on their robes
Speaker 2: back there before going out into court. Is that right?
Speaker 4: Yeah?
Speaker 3: Yeah, So they have clothes under their Rubes.
Speaker 2: But yes, and are they just chatting back there about
Speaker 2: what's about to happen. I mean it feels so I
Speaker 2: don't know something about It feels so much like a
Speaker 2: sport rather than these distinguished justices that we're used to imagining.
Speaker 3: I don't actually think they're chatting. If they're chatting, it's
Speaker 3: not about the cases they're about to hear. I think
Speaker 3: that's the norm at the court that they don't chat
Speaker 3: in advance. They do their homework in advance. The Supreme
Speaker 3: Court's what is known as a hot bench, and that
Speaker 3: doesn't mean what it sounds like. It doesn't mean they're
Speaker 3: yelling and screaming and throwing things. A hot bench means
Speaker 3: they come unprepared, they've done their homework, as opposed to
Speaker 3: there were courts where the notion is, we're not going
Speaker 3: to do anything in advance. Let's just see how the
Speaker 3: argument goes and how the argument strikes us. They don't
Speaker 3: schmooze about it in real time.
Speaker 2: So tell me about the relationship between Harry and Warren,
Speaker 2: because I'm completely fascinated by it. One of the things
Speaker 2: that first made me want to write the show was
Speaker 2: when I realized that the author of Rovi Wade on
Speaker 2: the Court was Harry Blackman, whose best friend, his life
Speaker 2: long best friend, was the Chief Justice.
Speaker 3: Right so they grew up together in the Saint Paul.
Speaker 3: They came from quite different backgrounds and had quite different
Speaker 3: trajectories as young people. Harry's family had very little money,
Speaker 3: but they had some and he goes off to Harvard
Speaker 3: on a Harvard Club of Minneapolis scholarship, and that was
Speaker 3: a real kind of bursting out of the rather narrow
Speaker 3: circumstances of his childhood. And Berger didn't have that leap
Speaker 3: to make. Harry always loved medicine, and he actually wanted
Speaker 3: to go to medical school, but that would have required
Speaker 3: staying longer as an undergrad and taking some of the
Speaker 3: requisite science courses that he hadn't taken, and so law
Speaker 3: was really his kind of second choice. But once he
Speaker 3: made that choice, and he had a nice clerkship, not
Speaker 3: in the Supreme Court but lower federal court clerkship, and
Speaker 3: a good law practice, and that's what he was devoting
Speaker 3: himself to. Berger decided to make his way in Republican politics.
Speaker 3: And of course Republican politics in Minnesota are not the
Speaker 3: Republican politics that we see today, but he was certainly
Speaker 3: on the conservative side. Nonetheless, he ingratiated himself to Dwight
Speaker 3: Eisenhower at the Republican National Convention in nineteen fifty two
Speaker 3: when Eisenhower had a serious opponent for the nomination. Taft
Speaker 3: and Berger was quite influential in throwing the convention to Eisenhower.
Speaker 3: And he got his reward, which was to come to
Speaker 3: Washington and significant job in the Justice Department as an
Speaker 3: assistant Attorney General. And you know then he was often
Speaker 3: running and he got a seat on the DC Circuit,
Speaker 3: often called, I think with reason, the second most important
Speaker 3: federal court in the country, second only to the Supreme Court.
Speaker 3: And he almost immediately started lobbying to get on the
Speaker 3: Supreme Court. He went around the country giving speeches, very
Speaker 3: conservative law and order type of speeches, and things broke
Speaker 3: his way, and Richard Nixon got elected and or Warren retired,
Speaker 3: Nixon had a vacancy to fill for Chief Justice, and
Speaker 3: there was Warren Berger with his hand up and was
Speaker 3: a very attractive candidate from Nixon's point of view. So
Speaker 3: that was his story.
Speaker 2: And then when he was on the court, a vacancy
Speaker 2: opened up and Nixon's first two nominees to fill that
Speaker 2: vacancy both fell in the Senate, and so Nixon was
Speaker 2: desperate to find someone I guess you tell me if
Speaker 2: I'm wrong, but to find someone uncontroversial who could fill
Speaker 2: that third seat. And Warren whispered to his buddy Nixon,
Speaker 2: my best friend from childhood is your guy.
Speaker 3: And Blackman was totally uncontroversial, and that he was totally
Speaker 3: unknown and not on anybody's screen didn't push any of
Speaker 3: the hot buttons that Hainesworth and Carswill that defeated nominees
Speaker 3: had encountered opposition from the Democratic controlled Congress, So yeah,
Speaker 3: why not Harry Blackman.
Speaker 2: It's such a great irony and so great for the
Speaker 2: drama that Harry Blackman was brought onto the Court because
Speaker 2: he was incredibly uncontroversial that he might actually get through
Speaker 2: and of course ended up being one of the most
Speaker 2: controversial justices of all time because he authored the decision
Speaker 2: in Roe v. Wade.
Speaker 3: There's so many ironies, because of course Roe wasn't Harry
Speaker 3: Blackman alone. It was a seven to two decision. If
Speaker 3: you ask most people just walking down the street who
Speaker 3: think they know anything about the Supreme Court, what was
Speaker 3: the vote in row against Wade. I guarantee they would
Speaker 3: say five to four, right, But it was seven to two,
Speaker 3: including three of Nixon's four appointees, including warren Berger, who
Speaker 3: is the one who assigned Blackman to this task. Although
Speaker 3: black Men forever in history will be known as the
Speaker 3: justice who wrote against Wade, it was a collective effort
Speaker 3: and everybody else kind of skated free, and he's the
Speaker 3: one who got stuck with it. Right.
Speaker 2: Yeah, And let's talk about that for a second, because
Speaker 2: I make a meal out of that in the final
Speaker 2: few episodes as black Man is trying to win votes
Speaker 2: to his side. First, why did warren Berger assign the
Speaker 2: decision of Rovie Wade to black Men? He had never
Speaker 2: written a major decision before. Why give him the abortion
Speaker 2: controversy for his first thing.
Speaker 3: It's a mystery that's never been quite explained. But I
Speaker 3: think we have to understand the context, and the context
Speaker 3: is a little bit counterintuitive. The Court had an awful
Speaker 3: lot on his plate, and abortion was not the hot
Speaker 3: issue that it then became after the careful cultivation by
Speaker 3: the Republican Party to turn it into the culture war
Speaker 3: issue of our time. It was not that. Actually there
Speaker 3: was a fairly wide consensus in the country, everybody except
Speaker 3: the bishops, that it was time to modernize the era
Speaker 3: of the criminalization of abortion. So the court knew it
Speaker 3: was a bit of a hot potato, but they had
Speaker 3: a lot of hot potatoes in those days, largely with
Speaker 3: criminal law, with the civil rights cases, religion, prayer and schools.
Speaker 3: A lot of stuff was going on. You know, everybody
Speaker 3: gets their share of opinions at the court. The way
Speaker 3: the court works is it sits in two week argument
Speaker 3: sessions scattered throughout the term, and every justice is supposed
Speaker 3: to get roughly the same number of opinion assignments for
Speaker 3: every one of the two week sittings. And so I
Speaker 3: never went back to see who had the other opinions
Speaker 3: in the first time role was argued, which was in
Speaker 3: early nineteen seventy.
Speaker 2: Two, Yeah, let me just take a quick side there.
Speaker 2: So Roe v. Wade was argued twice, one year apart,
Speaker 2: and the first time it was argued there were only
Speaker 2: seven sitting justices, and then they decided that this was
Speaker 2: too important a decision to be decided by a small court,
Speaker 2: and so Sarah had to go back the following year
Speaker 2: and argue it all over again when there were nine justices,
Speaker 2: And that's one of those examples of for dramatic effect,
Speaker 2: I just decided to conflate the two. It would just
Speaker 2: be too confusing to have two separate trials in the show,
Speaker 2: so I conflated them. But for the most part, the
Speaker 2: Supreme Court case that we hear in the show is
Speaker 2: that second argument.
Speaker 3: And the fact that there are two arguments tells us something.
Speaker 3: And here's what it tells us. Justice Harlan and Justice
Speaker 3: black Ab roughly retired at the beginning of the nineteen
Speaker 3: seventy one term, leaving, as you just said, justices, and
Speaker 3: they had a bunch of cases scheduled for argument. So
Speaker 3: what to do? And they set up a little committee.
Speaker 3: And I never quite could get this is from Blackman's notes.
Speaker 3: I never could quite get the full membership of it.
Speaker 3: But I think Blackman was on that, Potter Stewart was
Speaker 3: on it to decide which of the cases were so
Speaker 3: important that they should be held for the two vacancies
Speaker 3: to be filled by President Nixon, and which were the
Speaker 3: more ordinary cases that they could just go ahead and
Speaker 3: argue with seven justices. And Roe versus Wade fell in
Speaker 3: the second category. They went ahead and argued it because
Speaker 3: they didn't think it was so important that they needed
Speaker 3: to wait for nine justices. That tells us that the
Speaker 3: way we understand the context of Roe today is not
Speaker 3: actually the way it was.
Speaker 2: That's so interesting. Well, let's talk a little bit more
Speaker 2: about the relationship between Harry and Warren. One of the
Speaker 2: things that I found so dramatically interesting is what opposites
Speaker 2: they were in personality. Seemingly they were paralleled a little
Speaker 2: bit in our show by Sarah and Linda, who are
Speaker 2: also very much opposites in personality. While Sarah is the
Speaker 2: sort of outgoing beauty queen who is the president of
Speaker 2: the Homemakers Association of America in college and always wore
Speaker 2: these pastel dresses, Linda was the exact opposite of that.
Speaker 2: With Harry and Warren, how are their personality is different?
Speaker 3: So Warren Berger was very needy. One of the most
Speaker 3: fascinating things about getting into the Blackman papers was the
Speaker 3: extensive correspondents between the two of them. Blackmen saved not
Speaker 3: only all of Burger's incoming, but he would answer with
Speaker 3: typewritten letters on carbon paper. If listeners today even ever
Speaker 3: saw a sheet of carbon paper, I'm not sure that
Speaker 3: my daughter ever has, for instance. But so he kept
Speaker 3: copies of all the outgoings. So we have in his
Speaker 3: papers the complete correspondence and Burger he's always complaining of
Speaker 3: the circumstances of his life and his frustrations and his
Speaker 3: need for companionship. He would write these letters before they
Speaker 3: were on the court, so they were separated by half
Speaker 3: a country. He was in Washington, Blackman was back in Minnesota. Harry,
Speaker 3: why did the two of us just run away together?
Speaker 3: Why don't we go to Europe? All I have to
Speaker 3: do is pack your pajamas. I was reading this stuff
Speaker 3: and it's almost a little homo erotic. I don't mean
Speaker 3: to be projecting, And certainly whatever was going on with
Speaker 3: Berger was very deeply buried in him. But we see
Speaker 3: this need Blackman is my senses would receive these letters
Speaker 3: with a little bit of puzzlement, some empathy, some kind
Speaker 3: of annoyance. I think, like Warren, I don't need to
Speaker 3: hear this today. I'm a busy man. You could see
Speaker 3: just from the correspondence. Blackman was quite very inner directed.
Speaker 3: You know. He had a I think good relationship with
Speaker 3: Dottie's wife and raising three daughters and I think burger
Speaker 3: 's home life was not terrifically stable. I don't want
Speaker 3: to say more than I know, but he had a daughter,
Speaker 3: Mary Margaret, who had some kind of chronic and long
Speaker 3: lasting emotional intellectual, I'm not sure disability, and that was
Speaker 3: a great worry to him. So they were, you know,
Speaker 3: kind of on different planets in dealing with the sort
Speaker 3: of agonies of midlife.
Speaker 2: You might say, interesting. Yeah, so we never go home
Speaker 2: with Warren in my show, but we do go home
Speaker 2: with Harry. So I want to talk a little bit
Speaker 2: about that. Harry seems to be someone who was just
Speaker 2: surrounded by women. As you said, he had three daughters,
Speaker 2: no sons. He had a wife, Dottie, who's played by
Speaker 2: William H. Macy's real life wife, Felicity Hoffman in the show,
Speaker 2: and they seemed to be very close and had a
Speaker 2: good marriage. So tell us a little bit about what
Speaker 2: Harry's relationship was actually like with his wife and daughter.
Speaker 3: They had certain routines and for many years Harry was
Speaker 3: involved with the Aspen Institute in Aspen, Colorado. They spend
Speaker 3: the summer there and they would drive across the country,
Speaker 3: and as they drove, Dottie would be reading out loud
Speaker 3: to him the new petitions that had come into the
Speaker 3: court so that he could keep up with his work
Speaker 3: while he'd be driving this little VW beetle. They really
Speaker 3: were partners. I think she was an interesting woman before
Speaker 3: she had children. She had an interesting career. She was
Speaker 3: a dress designer and had her own dress shop. Right.
Speaker 3: She was a woman of her time and didn't pursue
Speaker 3: that when she started having babies. You know, she was
Speaker 3: a person with outside interests. And I think they did
Speaker 3: have a very, very warm and mutually supportive relationship.
Speaker 2: And I'll say that really does mirror what I briefly
Speaker 2: saw in production with Bill Macy and Felicity Huffman. They
Speaker 2: recorded together, and they were adorable together. They were constantly
Speaker 2: making jokes with each other. It was actually really sweet
Speaker 2: to say. So. Harry's three daughters, Nancy, Susan, and Sally,
Speaker 2: can you tell us anything about them? A couple of
Speaker 2: them very much walked in their father's shoes into the
Speaker 2: practice of law. Susie I think was a bit of hippie.
Speaker 2: Sally is someone who plays a little bit of a
Speaker 2: larger part in the show because of something I think
Speaker 2: I learned in your book, which is that she got
Speaker 2: pregnant when she was in college and she was forced
Speaker 2: to or she decided to drop out of school and
Speaker 2: marry her college boyfriend, and eventually the pregnancy was miscarried.
Speaker 2: It's very similar to something we'll talk about in a
Speaker 2: second that happened to Sarah. Whereas Sarah, when she got pregnant,
Speaker 2: chose to go to Mexico and get an illegal abortion,
Speaker 2: Harry's daughter did not. And I always wondered how that
Speaker 2: might have weighed on Harry, what kind of discussions they
Speaker 2: might have had behind the scenes.
Speaker 3: Well, again, I never liked to say more than I know,
Speaker 3: but I'm sure that was a family trauma because she
Speaker 3: is very smart and you know, obviously designed for a
Speaker 3: college and probably professional education. She went on became a
Speaker 3: lawyer and had a quite substantial legal career. There's nothing
Speaker 3: I read that indicated that the subject of abortion ever
Speaker 3: came up, although we know statistically in the years before
Speaker 3: Row there were maybe a million illegal abortions a year
Speaker 3: in the country, So all classes of people were easily
Speaker 3: obtained by middle class people through networks and hospital committees
Speaker 3: and this kind of thing. She probably could have arranged
Speaker 3: the family probably could have arrange for her to have
Speaker 3: even a legal abortion. I mean, there were ways of
Speaker 3: satisfying various requirements and so on, but I'm not sure
Speaker 3: it ever came up.
Speaker 2: Yeah, I'm not sure either. But that's a conversation that
Speaker 2: I have way after the fact between Susan and her
Speaker 2: father in the show, and Susan, by the way, is
Speaker 2: played by William H. Macy and Felicity Huffman's real life
Speaker 2: daughter Sophia, which was really fun.
Speaker 3: Aaron, you asked me where the idea from my book
Speaker 3: came from? Where did your idea for the show come from?
Speaker 2: I think I first learned about Sarah Weddington, I want
Speaker 2: to say, when I was here in grad school, so
Speaker 2: a million years ago, and the thing that first caught
Speaker 2: my eye was the idea that this was the youngest
Speaker 2: person in history to win a case in the Supreme Court.
Speaker 2: And not only was she the youngest person, she was
Speaker 2: the youngest woman to ever argue a case there. And
Speaker 2: not only was she the youngest one ever had already
Speaker 2: case there, but she had never had a contested case before.
Speaker 2: She had only done wills and adoptions, She had never
Speaker 2: spoken in front of a judge. She had never been
Speaker 2: in a courtroom, and that's what really got me excited,
Speaker 2: this sort of underdog Aaron Brockovich type story. Adding to
Speaker 2: that it happened to be the most explosive case of
Speaker 2: the twentieth century. I could not believe that nobody else
Speaker 2: had told this story yet I thought it was such
Speaker 2: a fascinating story. And as I did research, reading books
Speaker 2: like yours Becoming Justice Blackman, I got very excited about
Speaker 2: Harry's journey on a parallel path to Sarah's, and about
Speaker 2: the abortion fight in general, which of course has so
Speaker 2: many dramatic twists and turns. What she talks about in
Speaker 2: her book, this wasn't just a professional cause for her.
Speaker 2: This wasn't just a way for her to get to
Speaker 2: practice law, although that was part of it. When no
Speaker 2: one else would give her a case, this was a
Speaker 2: case that was handed to her. But she went down
Speaker 2: to Mexico and had her own illegal abortion and really
Speaker 2: wanted to prevent other people from having to go through
Speaker 2: that trauma. And then something I learned from your book
Speaker 2: that Harry Blackman, who was a man who was a
Speaker 2: jurist and a lawyer for many years and didn't seem
Speaker 2: to have any obvious connections to the abortion movement. Had
Speaker 2: a daughter who dropped out of school a sophomore year
Speaker 2: when she got pregnant and had to marry her college boyfriend,
Speaker 2: and that pregnancy eventually ended in a miscarriage. But I
Speaker 2: was very interested in imagining what that might have been
Speaker 2: like behind the scenes between Harry and his daughter. Did
Speaker 2: he suggest she should have an abortion? Did that subject
Speaker 2: ever come up? And then last, the relationship between Harry
Speaker 2: and Warren, which you talk about so beautifully in your book,
Speaker 2: that they were lifelong best friends, best men at each
Speaker 2: other's weddings, camp counselors together, and now I'm very close
Speaker 2: with my childhood best friends, And just imagining the two
Speaker 2: of them having gone from little kids together the Minnesota
Speaker 2: twins Harry's mom would call them to now being two
Speaker 2: of the most powerful people in the country. I just
Speaker 2: it all felt like such ripe stories for drama. I
Speaker 2: absolutely loved it. Shifting gears a little bit. I would
Speaker 2: love to talk a little bit about Sarah and Linda.
Speaker 2: The show is very much about Sarah on a parallel
Speaker 2: track to Harry. Sarah and Harry were both sort of amateurs.
Speaker 2: Sarah to a much greater degree, had never argued a
Speaker 2: case before, She'd never stood before a judge, literally, never
Speaker 2: had a contested case. She had just done a couple
Speaker 2: adoptions and wills, and now she's taking her first ever
Speaker 2: case all the way to the Supreme Court. Harry has
Speaker 2: a distinguished history as a judge and a lawyer for
Speaker 2: the Mayo Clinic, but he was fairly new to the
Speaker 2: Supreme Court. He had never written a major decision for
Speaker 2: the Court before. And so I loved the idea of
Speaker 2: these two figures on parallel tracks, untested and maybe a
Speaker 2: little bit scared. So can you talk a little bit
Speaker 2: about the brief for Roe v. Wade. A big part
Speaker 2: of one episode is Sarah and Ron and then eventually
Speaker 2: Linda coming. They moved to the Women's Institute in Gramercy
Speaker 2: in New York. It's an irving place around seventeenth Street.
Speaker 2: The building is still there. I walk by it all
Speaker 2: the time. And the Women's Institute offered them space and
Speaker 2: interns to help them write the brief in the summer
Speaker 2: before the Supreme Court. So can you tell us a
Speaker 2: little bit about what court brief is, what sort of
Speaker 2: goes into it.
Speaker 3: So the idea of the Spreme Corp. Brief is to
Speaker 3: present the argument in the most effective way. It has
Speaker 3: an introduction, it has a summary of argument, and then
Speaker 3: you want to say how the argument you're making is
Speaker 3: the logical extension of the Court's body of work that's
Speaker 3: come before, of the precedence, And the idea in Roe
Speaker 3: was to show how it grew naturally out of a
Speaker 3: case that had been decided less than ten years before,
Speaker 3: Griswold against Connecticut, which in nineteen sixty five the Court
Speaker 3: found there was a constitutional right for married couples to
Speaker 3: use birth control. Now this is in my lifetime. It's
Speaker 3: kind of astonishing that you know, in the lifetime of
Speaker 3: people who are walking around today and who still look
Speaker 3: get themselves out of bed, that birth control was illegal
Speaker 3: in the state of Connecticut, which is where we're now
Speaker 3: having to be recording this episode. So Griswolding is to
Speaker 3: get recognized a right to privacy growing out of the
Speaker 3: due process guarantee in the fourteenth Amendment, and had other
Speaker 3: stuff in it too, of course. So the idea was
Speaker 3: to say to the court, this is what you said
Speaker 3: not too many years ago, and here's the logical consequence.
Speaker 3: If you can have birth control because you don't want
Speaker 3: to bear a child, you have the right not to
Speaker 3: bear a child, as guaranteed by the Constitution. So that
Speaker 3: was the effort. And the kind of back story of
Speaker 3: the brief is that it was based on a low
Speaker 3: review article that had appeared not too long before in
Speaker 3: the Law Journal of the University of North Carolina by
Speaker 3: a young guy named Roy Lucas, and it had gotten
Speaker 3: a fair amount of play, and Roy Lucas had drafted
Speaker 3: part of the brief and there was a good deal
Speaker 3: of tension between him and Sarah and Linda as to
Speaker 3: who was going to get to argue. And Roy Lucas,
Speaker 3: who am I I knew, never let go of his
Speaker 3: anger that he had not been the one who argued.
Speaker 2: Let's talk about this because this is part of the show.
Speaker 2: Also really is played by Luke Kirby in our show,
Speaker 2: Who's Lenny Bruce and the marveless Missus mays All just
Speaker 2: a fantastic actor, and he was a major player, if
Speaker 2: not the major player in abortion cases in the country
Speaker 2: at the time. And so what Sarah writes in her
Speaker 2: book is that really tried to steal the case away
Speaker 2: by writing a letter to the Supreme Court saying that
Speaker 2: he would be the one arguing the case. What are
Speaker 2: your sort of thoughts on that.
Speaker 3: Well, I mean, he was deeply invested and he had
Speaker 3: done the work. And like a lot of creators, you
Speaker 3: launch something in the world and you lose control of it.
Speaker 3: So he got back into the game later. He had
Speaker 3: other abortion cases that he argued before the Supreme Court,
Speaker 3: but he missed the big one. Yeah, and was very bitter,
Speaker 3: and I think his bitterness about it overshadow the rest
Speaker 3: of his life.
Speaker 2: Yeah. So going back to the Supreme Court once it's
Speaker 2: time for Harry to assemble a majority. As you said,
Speaker 2: he got a seven to two majority in the case,
Speaker 2: including warren Berger's vote. How does the justice go about
Speaker 2: assembling majority? I know is very important to Harry that
Speaker 2: this case be as close to unanimous as possible. How
Speaker 2: do you go about doing it?
Speaker 3: Well, you've got to write a draft. And what happens
Speaker 3: is you get the assignment and it then falls you
Speaker 3: to write a draft, which you then circulate. And the
Speaker 3: Court has an odd locution. One justice will say, you
Speaker 3: have my join is usually a verb in the English language,
Speaker 3: but at the Spreme Court locution it's a noun. You
Speaker 3: have my join That means I'm going to sign your opinion.
Speaker 3: You've got me or can say you know, I'm with
Speaker 3: you part of the way. But I really not comfortable
Speaker 3: with Section X and i'd like to see that revised
Speaker 3: in such and such a way, and that kind of thing.
Speaker 3: The burden is on the justice who got the assignment,
Speaker 3: and it's a burden that sometimes that justice can't carry
Speaker 3: what's known as you can lose the court when you
Speaker 3: don't get five votes. So that was part of the
Speaker 3: challenge for Harry.
Speaker 2: Yeah, Harry took the sort of unusual step, as my
Speaker 2: understanding and read his final decision alone from the bench
Speaker 2: to a room full of reporters. And that's dramatized in
Speaker 2: the show with Kitty Kurk playing one of the reporters
Speaker 2: talking about it outside the courthouse. Any idea why Harry
Speaker 2: chose to do this, to read the decision from the bench.
Speaker 3: Oh, I'll give you a bit of historical context and correction.
Speaker 2: Please.
Speaker 3: It was and we'll see if that is going to
Speaker 3: continue in the post pandemic world. We don't know yet.
Speaker 3: Very common, I mean expected for the justice who has
Speaker 3: the majority opinion to announce from the bench a summary
Speaker 3: of it, and that's called the handdown. It's handed down
Speaker 3: from the bench orally to the public. Now who's the public.
Speaker 3: There's maybe two hundred tourists or whatever sitting in the courtroom,
Speaker 3: and then there's a couple rows of press seats. Nobody
Speaker 3: knows when an opinion's coming down. So Roe came down
Speaker 3: in January. It wasn't one of these let's hold our
Speaker 3: breath for June, like with the Dobbs opinion that overturned Row.
Speaker 3: So just happened to come down in January. But what
Speaker 3: Harry did that was a little bit unusual was he
Speaker 3: wrote his hand down, not the full opinion. He wrote
Speaker 3: his hand down, which is just a few pages, and
Speaker 3: he circulated it in advance to the justices in the
Speaker 3: majority to get their feedback. And Burger came back and said,
Speaker 3: I think you should say we are not authorizing abortion
Speaker 3: on demand.
Speaker 2: Wow.
Speaker 3: And I saw in Blackman's papers, his draft of the
Speaker 3: handdown and Burger's response. And Blackman did not say that
Speaker 3: in his oral announcement. And that was clue as to
Speaker 3: where Berger was heading. Because what does abortion on demand mean?
Speaker 3: What does that phrase mean? We hear it, we don't
Speaker 3: hear about I want an appendectomy on demand, I want
Speaker 3: a nose job on demand. What does it means? The
Speaker 3: abortion on demand? It actually is a perversion of a
Speaker 3: feminist slogan. Before Roe, women were marching under banners that
Speaker 3: said we demand free twenty four hour childcare and free abortions.
Speaker 3: That means we want the right to become mothers and
Speaker 3: stay in the workplace. We want childcare, or on the
Speaker 3: other hand, we want the right not to become mothers
Speaker 3: if we don't want to become mothers. It was a
Speaker 3: two part thing, but the anti abortion crowd picked up
Speaker 3: the abortion on demand as a stand alone and a
Speaker 3: kind of an ugly phrase that made women who were
Speaker 3: seeking to change the abortion laws sounded very unappealing. Demanding
Speaker 3: anything sounds unappealing. What they were demanding was a constant
Speaker 3: titutional right. So for Burger to reflect that perversion of
Speaker 3: the language that I just described, I think tells us
Speaker 3: that although Harry had his join that Burger was not
Speaker 3: going to be reliable.
Speaker 2: Interesting, and just to give a little bit more contacts
Speaker 2: the previous court from the Burger Court, the Warren Court.
Speaker 2: They were known for expanding rights with Gideon and Miranda
Speaker 2: and Brown v. Board. Now, with the Burger Court that had,
Speaker 2: as you said, three Nickson appointees at least three four four,
Speaker 2: what was the thinking, would the expansion of rights continue?
Speaker 2: Or I assume the thinking was the expansion of rights
Speaker 2: would end if not the restriction of rights.
Speaker 3: I don't think they woke up in the morning and said, Okay,
Speaker 3: we're going to spend the next twenty years of our
Speaker 3: life restricting rights.
Speaker 2: But you don't think the current court's doing that?
Speaker 3: Oh yeah, I think with the Nixon appointees to the
Speaker 3: Burger Court, they Nixon ran against the Warren Court. In
Speaker 3: his nineteen sixty eight presidential campaign. He had all kinds
Speaker 3: of dog whistles order crime. Those were dog whistles for race.
Speaker 3: By nineteen sixty eight, you couldn't quite put yourself in
Speaker 3: the you know, segregation side of the street. So you
Speaker 3: use crime much as being used today. Very few things
Speaker 3: that are all that new under the sun. But yeah,
Speaker 3: the Nixon appointees on the court certainly thought the war
Speaker 3: In Court had gone too far and needed the court
Speaker 3: needed to be real back, which makes Roe stand as
Speaker 3: a kind of anomaly against some of the other things
Speaker 3: that happened during the Burger years. But in context, they
Speaker 3: didn't think they were advancing a feminist cause. For instance,
Speaker 3: they didn't think of abortion as a cause. They actually
Speaker 3: thought of abortion as it is, which is a medical procedure,
Speaker 3: full stop. And they were responding to not the cause
Speaker 3: of women on the streets. They couldn't hear those that
Speaker 3: didn't compute with them. They're responding to the fact that
Speaker 3: the American Medical Association, the American Public Health Association, the
Speaker 3: American Law Institute, which is an organization of very elite
Speaker 3: lawyers and judges and professors, all were calling for decriminalization
Speaker 3: of abortion.
Speaker 2: The overturning of rov Wade came when I was near
Speaker 2: the end of writing the audio series. That's why I
Speaker 2: added the ending with Katie Kurk that we heard where
Speaker 2: she talks about how dangerous a political court is, a
Speaker 2: politicized court. I'm curious where you think Roe and the
Speaker 2: abortion fight goes from here.
Speaker 3: It goes into electoral politics. I think we saw in
Speaker 3: the midterms in November where it goes, and it stopped
Speaker 3: the predicted red wave. It led to democratic governors and
Speaker 3: state legislatures being elected on the abortion issue. So it
Speaker 3: opened up a new framework for keeping this issue alive
Speaker 3: that it will be kept alive. So you must have
Speaker 3: taken a fair amount of creative license in the show.
Speaker 2: So I tried to keep it as true to the
Speaker 2: historical record as I possibly could. The way I think
Speaker 2: about it a little bit is the way some of
Speaker 2: my heroes have talked about the way they adapt true stories.
Speaker 2: Aaron Sorkin, for instance, who wrote The Social Network and
Speaker 2: Steve Jobs and the recent Lucille Bald movie, he talks
Speaker 2: about when he takes a true story and dramatizes it,
Speaker 2: he thinks of it as a painting rather than a photograph.
Speaker 2: He's going to have his own interpretation, his own point
Speaker 2: of view, but it's still the story. David mammontt talks
Speaker 2: about how his job is not to document, his job
Speaker 2: is to persuade, and so I tried to do something similar.
Speaker 2: Just the fact that this show takes place over nine
Speaker 2: episodes instead of over four years means that I had
Speaker 2: to take some creative license. The only characters who are
Speaker 2: completely invented, I should say, are composites are Andrea Savage's
Speaker 2: character deb Margalise and Laura Bonanti's character b Cutress. Those
Speaker 2: are composites, and then when Sarah and Harry speak on
Speaker 2: the phone. I really wanted a moment where these two
Speaker 2: characters whose journeys we've been following on parallel tracks for
Speaker 2: so long, finally come together. And of course they do
Speaker 2: come together in the Supreme Court when Harry is raining
Speaker 2: questions down on her, But that didn't really give me
Speaker 2: the sort of intimate moment that I wanted. So I
Speaker 2: took a page from Peter Morgan's script that Ron Howard
Speaker 2: directed Frost Nixon, where Nixon has a middle of the night,
Speaker 2: drunken phone call with from Lost and that never happened.
Speaker 2: That was completely invented by Peter Morgan. So similarly, I
Speaker 2: have Sarah desperate to find out when the decision is
Speaker 2: finally going to come down and she can go on
Speaker 2: with her life, and so she calls the court to
Speaker 2: try to get any intel she can from whatever clerk
Speaker 2: answers the phone. And on this particular night when she calls,
Speaker 2: Harry is busy working on the decision, and he answers
Speaker 2: the phone and so he never reveals himself. So it's
Speaker 2: the kind of scene that could have happened, although it
Speaker 2: never did, and they have a very human conversation about
Speaker 2: fathers and daughters. They're sort of a spiritual father and
Speaker 2: daughter dynamic. Harry talks about his daughters and Sarah talks
Speaker 2: about her father, who's so brilliantly played by Josh Hamilton
Speaker 2: in the show Pretty Cool. This bonus episode of Supreme
Speaker 2: The Battle for Row is hosted by me Aaron Tracy.
Speaker 2: It's edited by Carl Catyl, music by Anna Stump and Hamilton.
Speaker 2: Like Houser, a big thank you to the Yelle Broadcast
Speaker 2: Studio and to Linda Greenhouse for offering her time and expertise.
Speaker 2: Supreme The Battle for Row is a nine part audio
Speaker 2: drama about the legal minds behind the historic Supreme Court
Speaker 2: decision Roe v.
Speaker 4: Wade.
Speaker 2: Listen on iHeartRadio, Apple Podcasts, or wherever you get your podcasts.
Speaker 2: Thanks for listening.