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By late May, Justice Blackmun had fully joined the Douglas-
Brennan circle [which also included Potter Stewart and Thurgood
Marshall] in favor of creating an abortion right. [Memorandum to the
Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect
highly legislative considerations almost exclusively. For example, he
proposes to invalidate most of the Georgia statute, except maybe those
requiring an abortion to occur in a licensed and accredited hospital.
[Memorandum to the Conference from Harry Blackmun, dated May 25,
1972]. Demonstrating that none of these specific invalidations were
rooted in constitutional text or history, however, Justice Blackmun
holds open the possibility, like a good legislative lobbyist, that may
be "some of you may wish to take that step, too [that is, allowing
abortions outside hospitals]." [Id., the Court did take that step.]
The particulars of the Court's legislative considerations still
tangled, Justice Blackmun, at month's end, urges that Roe and Doe be
reargued. [Memorandum to Conference from Harry Blackmun, dated May
31, 1972].
The cases were reargued, but only over Justice Douglas'
extraordinary and harshly written protest. [An internal Letter from
William O. Douglas to Warren Burger, dated June 1, 1972, threatens
"f the vote of the Conference is to reargue, then I will file a
statement telling what is happening to us and the tragedy it entails."
Justice Douglas filed a published written dissent to setting the cases
over for reargument]. Perhaps, the key to understanding why the
Court, notwithstanding Douglas' protestations, pursued reargument lies
with the gentlemanly prodding of new Justice Powell. As mentioned,
Powell had recently joined the Court, and he asked politely for
reargument, pointing out that "Harry Blackmun, the author of the
(draft] opinions, thinks the cases should be carried over and reargued
next fall. His position, based on months of study, suggests enough
doubt on an issue of large national importance to justify the few
months delay." [Memorandum to the Conference from Lewis Powell, dated
June 1, 1972].
Oh wow, whats this. Its so important that it needs to be reargued and is so important that it justifies the few months delay.
Hmmmmhhh.
Brennan circle [which also included Potter Stewart and Thurgood
Marshall] in favor of creating an abortion right. [Memorandum to the
Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect
highly legislative considerations almost exclusively. For example, he
proposes to invalidate most of the Georgia statute, except maybe those
requiring an abortion to occur in a licensed and accredited hospital.
[Memorandum to the Conference from Harry Blackmun, dated May 25,
1972]. Demonstrating that none of these specific invalidations were
rooted in constitutional text or history, however, Justice Blackmun
holds open the possibility, like a good legislative lobbyist, that may
be "some of you may wish to take that step, too [that is, allowing
abortions outside hospitals]." [Id., the Court did take that step.]
The particulars of the Court's legislative considerations still
tangled, Justice Blackmun, at month's end, urges that Roe and Doe be
reargued. [Memorandum to Conference from Harry Blackmun, dated May
31, 1972].
The cases were reargued, but only over Justice Douglas'
extraordinary and harshly written protest. [An internal Letter from
William O. Douglas to Warren Burger, dated June 1, 1972, threatens
"f the vote of the Conference is to reargue, then I will file a
statement telling what is happening to us and the tragedy it entails."
Justice Douglas filed a published written dissent to setting the cases
over for reargument]. Perhaps, the key to understanding why the
Court, notwithstanding Douglas' protestations, pursued reargument lies
with the gentlemanly prodding of new Justice Powell. As mentioned,
Powell had recently joined the Court, and he asked politely for
reargument, pointing out that "Harry Blackmun, the author of the
(draft] opinions, thinks the cases should be carried over and reargued
next fall. His position, based on months of study, suggests enough
doubt on an issue of large national importance to justify the few
months delay." [Memorandum to the Conference from Lewis Powell, dated
June 1, 1972].
Oh wow, whats this. Its so important that it needs to be reargued and is so important that it justifies the few months delay.
Hmmmmhhh.
