0:07

Episode ten, the conversation

0:09

between Supreme Court expert Linda Greenhouse

0:12

and series creator Aaron Tracy.

0:20

I'm Mary Tracy, the creator and writer of

0:22

the nine episode audio drama you just heard. For

0:24

this tenth and final episode of the season, we're going

0:26

to do something a little different. The scripted

0:28

portion of the podcast is behind us. No more

0:31

Maya Hawk or William H. Macy or

0:33

any of the other extraordinary actors from the show,

0:35

but in their place for this bonus Linda

0:38

Greenhouse. Linda is undoubtedly

0:40

one of the world's experts on the Supreme Court and

0:43

on Harry Blackhaman in particular. She

0:45

covered the Supreme Court for three decades

0:47

for The New York Times and was awarded the Pulitzer

0:49

Prize and Journalism for her coverage. A

0:51

little detail I love, by the way, when Linda

0:53

retired from the Times, seven of

0:55

the nine sitting Supreme Court justices

0:57

attended a goodbye party for her. Linda all read

1:00

the book Becoming Justice Blackman, which

1:02

was hugely helpful to me in crafting the show. Linda

1:05

is my colleague here at Yale, where I'm in the

1:07

English department, and she teaches in the law school.

1:10

She's about to join me here on campus, and

1:12

I truly could not be more excited. So

1:14

thanks for listening. Enjoy this bonus episode.

1:31

All right, so, Linda, one of the things I was most

1:33

interested in and that we deal with in the first few episodes

1:35

of the show, is that Harry

1:38

never wanted to be on the court. His

1:40

best friend, Warren Berger, seemed

1:42

like the much more and of course correct me if I'm wrong, but seemed

1:44

like the much more ambitious man wanted

1:46

to have his place in history, very much wanted to get

1:48

to the Supreme Court. And Harry had

1:51

to be led kicking and screaming a little bit.

1:53

Is that true?

1:53

Yeah, I wouldn't say so much kicking and screaming, but

1:55

with great ambivalence. In a way,

1:58

he kind of underestimated himself.

2:00

He was very smart. He was Assuma Cumeloud,

2:02

a graduate of Harvard, so you

2:04

know, there was no moss growing

2:07

on him intellectually. But his personality

2:09

was very diffident, and

2:12

he was happy living

2:14

in Minneapolis and sitting on the eighth

2:16

Circuit and worked very hard.

2:18

And one of the things I found in his files

2:21

was when he got the offer, he

2:24

took out a piece of notebook paper and

2:26

he wrote the pros and the cons

2:29

of taking it, and they were about equal.

2:31

I wish I could side off the top of my head

2:33

with oh, well.

2:34

I put Actually, I think I can name a few because

2:36

I put them in the show.

2:37

Oh okay, okay.

2:38

The opening scene when we first meet Harry played

2:40

by William H. Masy is he's at a bar

2:42

by himself, waiting for Warren to show

2:44

up, who's played by William Fickner, and Harry

2:46

is jotting down that list of pros and cons, and

2:49

so there are things like loss of contact

2:51

with friends and family was a con. Potentially

2:54

it hurting his relationship with Warren

2:57

was a con. He didn't know how the friendship would survive.

2:59

That they were both in the court.

3:00

That was very precious.

3:08

Another drink, everybody, Hello,

3:12

buddy, looks

3:15

like you got a lot more cons than pros. There?

3:18

What your list on the cocktail napkin?

3:20

There? Here? Let me see cons?

3:24

Loss of contact with friends in my family?

3:27

Please don't read that. Okay,

3:30

what's the list for? I'm I

3:32

might be offered a job. This is just

3:36

this is how I chew things over a job in

3:38

this economy. Whatever

3:41

it is, Buddy, I take it. Mark

3:45

I'll have whatever my buddy's drinking. Keep

3:47

going.

3:55

So what can you tell us about Sarah

3:57

as a person. She seems like an unlike

4:00

figure. Two have been involved in the most

4:02

controversial legal case of the twentieth century.

4:05

Yeah, I mean she didn't start

4:07

out to be what she became. She

4:09

was kind of recruited by a

4:12

women's group in Austin, where she was

4:14

living, who wanted advice on

4:16

birth control actually, which

4:18

was once again a contested issue,

4:21

but was a contested issue back then,

4:24

and this group urged her to

4:26

be part of a challenge to the Texas abortion

4:29

Law. The Texas abortion Law was one

4:32

of the very common laws that outlawed

4:34

abortion except for circumstances

4:36

when a woman's life was endangered

4:39

by the pregnancy. And she didn't really know

4:41

what to do. But she and Linda Coffee

4:43

had been classmates. I think Linda had been

4:45

a much better law student and have clerked

4:47

on the district court federal just record in Texas,

4:50

which was a big deal for a woman

4:52

in those days.

4:53

Yeah, there were two of only five women in

4:55

their entire law school class.

4:57

Yeah, it speaks well of Sarah that she got

4:59

into law at the University of Texas, which

5:02

was and still is a very good law school. But

5:04

Linda was the one who was actually a practicing lawyer,

5:07

and they became partners in this enterprise.

5:10

But I should just say there were cases like this

5:12

popping up all over the country. The

5:15

pipeline of courts all over

5:17

the country were filling up with challenges

5:20

to various abortion laws,

5:23

one of which by that time actually

5:25

has succeeded in California

5:27

in state court, not in a federal court. So there

5:29

was a lot going on, and there was no particular

5:33

reason at the beginning of this case

5:35

to think that this was going to be the one. There

5:38

were actually better cases.

5:40

I hate to say that after all these years, but there

5:42

was a case that was developed by

5:45

Yale Law School female

5:47

students and some Yale Law School

5:50

professors, a case that came to be

5:52

known as Women against Connecticut

5:54

on behalf of a thousand plaintiffs. The

5:57

official name of the case is ably against Markel.

6:00

That was in the pipeline and just missed

6:02

out. Rogue got there first.

6:03

Interesting.

6:04

Yeah, History's made up of so many contentiencies,

6:07

and the story of abortion in America

6:09

is certainly one of them.

6:19

What's the case?

6:20

Does it matter?

6:21

It's a real case, Sarah.

6:22

What is it.

6:23

We're challenging the Texas abortion laws in

6:25

federal court. Don't

6:30

laugh at me, Linda. How often do people with our

6:32

chromosomes get actual legal work

6:35

in this state? I just

6:37

wish someone had warned me before three years of law

6:39

school that no one would ever hire.

6:40

Me, Sarah.

6:43

Everyone warned you.

6:44

And I know I'm not in the movement, okay, but

6:47

this is a great opportunity to get some legal

6:49

experience.

6:51

I know it is. That's

6:53

not why I laughed. I've

6:56

been working on the same thing, Sarah.

6:58

What are you talking about.

6:59

I haven't gotten far. I had this day job, but

7:01

I do have some research and

7:03

a lot of ideas.

7:04

I knew I came to the right person.

7:06

Don't get excited. We're definitely

7:09

going to lose.

7:10

Who cares. I do have one

7:12

question. I'm hoping you can help me with a right off the back though,

7:15

Linda.

7:16

And what's that?

7:17

What the hell do we do? First?

7:31

What can you tell us about Sarah and Linda as

7:33

partners? The way I dramatized it, which

7:35

is of course pulled from my research, is

7:38

that they were a little bit similar to Warren

7:40

and Harry and that they had very different strengths,

7:43

very different personalities. It feels like Linda

7:46

was fantastic with paperwork and with

7:48

research, and as you said, she had clerked

7:50

for a judge before, so she knew

7:52

court procedure, whereas Sarah was

7:55

someone who could captivate. She

7:57

was someone who could speak in front of a judge and really

7:59

get their ties.

8:01

Yeah, she was missed outside and Linda

8:03

was the inside, heavy lifter of

8:05

the work. It was certainly a functional partnership.

8:08

It was unequal in some ways. Sarah

8:11

in her post row life was really

8:13

out there swinging for the fences out on the

8:15

speaking circuit and lionized

8:17

in feminist circles, and Linda

8:19

really disappeared from history.

8:21

Yeah. And in the show, the

8:24

performances are extraordinary. Maya Hawk

8:26

plays Sarah Weddington, Abigail Breslin

8:29

plays Linda Coffee. They're both just so

8:31

incredibly great at capturing those different

8:33

sorts of personalities that the two had. I want

8:35

to talk a little bit about what the

8:38

actual work was because

8:40

I'm a huge fan of courtroom dramas.

8:43

Most of my favorite movies in fact are courtroom dramas.

8:45

But setting a show in the Supreme

8:48

Court is very different. In a courtroom

8:50

drama, you get witnesses and

8:52

you get cross examinations, and you

8:54

get interplay among the lawyers

8:57

and the judge, and a Supreme

8:59

Court drama, by necessity is very different.

9:01

So in the show, we certainly

9:04

recreated some of it where Sarah

9:06

and her opposition are giving

9:09

their oral arguments and I decided to cut

9:11

back and forth between them and the justices are reading questions

9:13

on them. But can you tell us a little bit about the differences

9:16

between what goes on in Supreme Court and

9:18

what goes on in a normal court of law.

9:20

So I'll talk about the Supreme Court as it

9:22

was, not the Supreme Court as it

9:24

is. I have to say post pandemic arguments

9:27

that the court have become really wild

9:29

and wooly and they're not like they were, by

9:31

which I mean in the pre pandemic

9:34

days, a Supreme Court argument

9:37

lasted for an hour a half

9:39

hour per side, and the

9:41

one who went first noticed the petitioner

9:43

or in the case of rob Is that the appellant would

9:46

save five minutes at the end for rebuttal.

9:48

And it was very scripted in that way.

9:51

And when your red light went on, that meant

9:53

your thirty minutes were up, you stopped talking,

9:56

or the Chief Justice was going to say, counsel,

9:58

your time has expired. So there

10:00

was not in real life, you know, kind

10:02

of back and forth, but there was a lot of questioning,

10:06

and justices could jump

10:08

in at any time, and that's

10:10

still the case, of course, and just

10:12

try to ask hypothetical questions,

10:15

the purpose being the court

10:17

knows now. Row might have been a little different

10:19

because the Court knew it was embarking

10:22

into kind of unknown territory. But in

10:24

the typical case, the

10:27

Court doesn't view itself as

10:29

resolving a particular dispute, but

10:31

really as the lawgiver for the

10:34

for the whole system. So they

10:36

don't just want to know what to do with you. They

10:39

want to know, if we do what you

10:41

want us to do with you, what are the implications

10:44

for the next case. Where does this go?

10:46

What road should we go down that you're offering

10:48

us, What road had we better avoid? Or

10:51

we're going to open up a whole hornet's

10:53

nest of new legal problems.

10:56

That's the reason for the questioning.

10:59

Really, yeah, I went to visit the

11:01

Supreme Court. It's research for writing the show,

11:03

and one of the things that struck me the most

11:05

was when you were standing at the advocate's

11:08

lectern and you reach

11:10

out your hand, if the Chief Justice

11:12

leaned down or reach out his hand, you could

11:14

shake. That's how close you are to the

11:16

bench. And for Sarah at

11:19

twenty six years old, never having

11:22

taken on a contested case before, it must

11:24

have been absolutely terrifying for her to

11:26

stand at the lectern with Thurgood Marshall raining

11:28

down questions and Warren Berger and Harry

11:30

Blackman. That must have just been so

11:32

overwhelming.

11:33

Well.

11:33

Yeah. In fact, Ruth Ginsberg, who had many

11:36

arguments before the Supreme Court when

11:38

she was a civil rights advocate before

11:40

she came a judge, talked about how intimidating

11:43

it was and how nervous she was, and

11:45

if she had an afternoon argument she never

11:47

had lunch. Really, yes, I

11:49

think it's a very scary thing. There's a

11:51

good new book out actually people might

11:53

like to know about. It's called in the Chamber

11:56

of the Appellate Gods and is filewoman

12:00

who had her one Supreme Court argument

12:02

would turn out to be a big criminal case,

12:05

a case called a prendy, And she writes

12:07

about it's almost like kind of diary

12:09

entries of her preparation and

12:11

her terror of getting up there representing

12:14

the state of New Jersey. She was a state lawyer,

12:17

so yeah, there's nobody who can take

12:19

it casually.

12:20

And it must have been all the more disconcerting

12:22

for Sarah. I think you write about in your book about

12:24

Blackman Somewhere. I read it that

12:26

Sarah before argument

12:28

was looking for the restroom, but of course

12:30

there was no women's restroom in the layer's

12:33

lounge, and so she had to go all the way down to the basement.

12:35

There were so few women who worked at the Supreme Court,

12:37

and I'm sure that frazzled her a little bit too.

12:40

Yeah, and as you said, with the potential

12:42

handshaking between the advocate and the

12:44

chief Justice. It's a grand chamber,

12:46

but it's very intimate. I mean, it holds

12:49

about maybe four hundred people,

12:51

which is not small, but the

12:54

kind of way it's arranged,

12:56

there's an intimacy to it, much more so

12:58

than people would expect.

12:59

I think, yeah, totally. The entire courthouse

13:01

is so interesting. Each justice's chambers

13:04

are much smaller than I would have imagined.

13:06

There are all sorts of very old fashioned

13:09

parts to it. There's a spiral staircase

13:11

in the back where I set a scene, and

13:14

the main hallway is so grand with

13:16

busts of all the former justices, it

13:18

can be an intimidating place.

13:20

I once tagged along when I was a reporter

13:22

at the court, tagged along on a public

13:24

tour just to see what

13:27

the public was told. But we were

13:29

taken up into the chamber, which

13:32

has, as you saw, long red

13:35

velvet curtains ceiling to floor

13:37

curtains, and the tour guide said, now

13:40

on these curtains are the longest

13:42

zippers in the world. I

13:46

remember hearing that, thinking,

13:49

so, you say, I.

13:50

Don't know how anybody can prove that. That is a very

13:53

interesting fact to brag about. That does remind

13:55

me that there's one very strange setting where I set

13:57

a couple scenes. There's a robing

13:59

room right backstage. Reminds

14:01

me of the dugout before players take

14:03

the field in a baseball game. This is where justice

14:06

is. As I say this, it almost feels like it can't

14:08

be true, but justices have sort

14:10

of lockers and they put on their robes

14:12

back there before going out into court. Is

14:14

that right?

14:15

Yeah?

14:16

Yeah, So they have clothes under their Rubes.

14:18

But yes, and are they just chatting back

14:21

there about what's about to happen. I mean it feels

14:23

so I don't know something about

14:25

It feels so much like a sport rather than

14:27

these distinguished justices that we're used

14:29

to imagining.

14:30

I don't actually think they're chatting. If

14:32

they're chatting, it's not about the cases they're

14:34

about to hear. I think that's the norm

14:37

at the court that they

14:39

don't chat in advance. They do

14:41

their homework in advance. The Supreme Court's what

14:43

is known as a hot bench, and that doesn't

14:46

mean what it sounds like. It

14:48

doesn't mean they're yelling and screaming and throwing

14:50

things. A hot bench means they come unprepared,

14:53

they've done their homework, as opposed

14:55

to there were courts where the

14:58

notion is, we're not going to do anything

15:00

in advance. Let's just see how the argument

15:02

goes and how the argument strikes us. They don't

15:04

schmooze about it in real time.

15:06

So tell me about the relationship

15:08

between Harry and Warren, because

15:11

I'm completely fascinated by it. One

15:13

of the things that first made me want to write the show was

15:15

when I realized that the author

15:17

of Rovi Wade on the Court was Harry Blackman,

15:20

whose best friend, his life long

15:22

best friend, was the Chief Justice.

15:24

Right so they grew up together in the Saint

15:26

Paul. They came from quite different

15:29

backgrounds and had quite different trajectories

15:32

as young people. Harry's family

15:35

had very little money, but they had some and

15:38

he goes off to Harvard on a Harvard Club

15:40

of Minneapolis scholarship, and

15:43

that was a real kind

15:45

of bursting out of the rather

15:47

narrow circumstances of his

15:50

childhood. And Berger

15:52

didn't have that leap to make.

15:55

Harry always loved medicine, and

15:57

he actually wanted to go to medical school, but

16:00

that would have required staying longer

16:03

as an undergrad and taking

16:06

some of the requisite science courses

16:08

that he hadn't taken, and so law

16:11

was really his kind of second choice. But once he made

16:13

that choice, and he had a nice clerkship,

16:17

not in the Supreme Court but lower federal

16:19

court clerkship, and a good law

16:21

practice, and that's what he was devoting himself

16:23

to. Berger decided

16:25

to make his way in Republican

16:28

politics. And of course

16:30

Republican politics in Minnesota are

16:33

not the Republican politics that we see today,

16:36

but he was certainly on the conservative side.

16:38

Nonetheless, he ingratiated himself

16:41

to Dwight Eisenhower at

16:43

the Republican National Convention in nineteen

16:45

fifty two when Eisenhower had a

16:47

serious opponent for the nomination. Taft

16:50

and Berger was quite influential

16:53

in throwing the convention to

16:55

Eisenhower. And he got his reward,

16:57

which was to come to Washington and

17:00

significant job in the Justice Department as an

17:02

assistant Attorney General. And you

17:04

know then he was often running and he got

17:06

a seat on the DC Circuit, often called,

17:09

I think with reason, the second most

17:11

important federal court in

17:13

the country, second only to the Supreme

17:15

Court. And he almost immediately

17:18

started lobbying to get on the Supreme Court.

17:20

He went around the country giving speeches, very

17:23

conservative law and order type of speeches,

17:26

and things broke his way, and Richard Nixon

17:28

got elected and or Warren

17:30

retired, Nixon had a vacancy to

17:32

fill for Chief Justice, and there

17:35

was Warren Berger with his hand up and

17:38

was a very attractive candidate

17:41

from Nixon's point of view. So that was his story.

17:43

And then when he was on the court, a vacancy

17:46

opened up and Nixon's

17:48

first two nominees to fill

17:51

that vacancy both fell in the

17:53

Senate, and so Nixon was desperate to find

17:55

someone I guess you

17:57

tell me if I'm wrong, but to find someone uncontroversial

18:00

who could fill that third seat. And Warren

18:02

whispered to his buddy Nixon, my

18:05

best friend from childhood is your guy.

18:07

And Blackman was totally

18:10

uncontroversial, and that he was totally unknown

18:12

and not on anybody's screen didn't push any

18:14

of the hot buttons that Hainesworth

18:17

and Carswill that defeated nominees

18:19

had encountered opposition

18:22

from the Democratic controlled Congress,

18:25

So yeah, why not Harry Blackman.

18:28

It's such a great irony and so great for the drama

18:30

that Harry Blackman was brought

18:33

onto the Court because he was incredibly uncontroversial

18:36

that he might actually get through and

18:38

of course ended up being one of the most controversial

18:40

justices of all time because he

18:43

authored the decision in Roe v. Wade.

18:45

There's so many ironies, because of course

18:48

Roe wasn't Harry Blackman

18:50

alone. It was a seven to

18:52

two decision. If you ask most people

18:55

just walking down the street who think they know anything

18:57

about the Supreme Court, what was the vote in row

18:59

against Wade. I guarantee

19:01

they would say five to four, right, But it

19:03

was seven to two, including three of Nixon's

19:05

four appointees, including

19:07

warren Berger, who is the one who assigned

19:10

Blackman to this task.

19:12

Although black Men forever in history

19:14

will be known as the justice

19:16

who wrote against Wade, it

19:19

was a collective effort and everybody

19:21

else kind of skated free, and he's the one who

19:23

got stuck with it. Right.

19:24

Yeah, And let's talk about that for a second, because I make

19:26

a meal out of that in the final few episodes

19:28

as black Man is trying to win votes to his

19:31

side. First, why did warren

19:33

Berger assign the decision of Rovie

19:35

Wade to black Men? He had never

19:37

written a major decision before. Why

19:39

give him the abortion controversy for

19:41

his first thing.

19:42

It's a mystery that's never been quite explained.

19:45

But I think we have to

19:47

understand the context, and the context is

19:49

a little bit counterintuitive.

19:52

The Court had an awful lot on his plate, and

19:55

abortion was not the hot

19:57

issue that it then became after

20:00

the careful cultivation by the Republican

20:03

Party to turn it into the

20:06

culture war issue of our time. It

20:08

was not that. Actually there

20:10

was a fairly wide consensus

20:13

in the country, everybody except the bishops,

20:16

that it was time to

20:18

modernize the era of

20:21

the criminalization of abortion. So

20:24

the court knew it was a bit of a hot potato,

20:26

but they had a lot of hot potatoes in those

20:28

days, largely with criminal law,

20:32

with the civil rights cases, religion,

20:34

prayer and schools. A lot of stuff was

20:37

going on. You know, everybody gets their

20:39

share of opinions at the court. The way

20:41

the court works is it

20:43

sits in two week argument sessions

20:45

scattered throughout the term, and

20:48

every justice is supposed

20:50

to get roughly the same number of opinion

20:53

assignments for every one of the two week

20:56

sittings. And so I

20:58

never went back to see who had

21:00

the other opinions in the first

21:02

time role was argued, which was

21:05

in early nineteen

21:07

seventy.

21:07

Two, Yeah, let me just take a

21:10

quick side there. So Roe

21:12

v. Wade was argued twice, one year

21:14

apart, and the first time it was argued there were only

21:16

seven sitting justices, and then they

21:18

decided that this was too important a decision

21:21

to be decided by a small court, and

21:23

so Sarah had to go back the

21:25

following year and argue it

21:27

all over again when there were nine justices, And

21:30

that's one of those examples of for dramatic

21:32

effect, I just decided to

21:35

conflate the two. It would just be too confusing

21:37

to have two separate trials in the show,

21:40

so I conflated them. But for

21:42

the most part, the Supreme Court

21:44

case that we hear in the show is that second

21:47

argument.

21:47

And the fact that there are two arguments tells us

21:49

something. And here's what it tells us. Justice Harlan

21:52

and Justice black Ab roughly retired at the

21:54

beginning of the nineteen

21:56

seventy one term, leaving, as

21:58

you just said, justices,

22:00

and they had a bunch of cases scheduled for argument.

22:03

So what to do? And they set up a little committee.

22:06

And I never quite could get this

22:08

is from Blackman's notes. I

22:10

never could quite get the full membership

22:13

of it. But I think Blackman was on that,

22:15

Potter Stewart was on it to

22:17

decide which of the cases

22:19

were so important that they should

22:21

be held for the

22:24

two vacancies to be filled by President

22:26

Nixon, and which were the more

22:28

ordinary cases that they could just go ahead and argue

22:31

with seven justices. And Roe versus

22:33

Wade fell in the second category.

22:36

They went ahead and argued it because

22:38

they didn't think it was so important that

22:40

they needed to wait for nine justices.

22:43

That tells us that the way we understand

22:45

the context of Roe

22:48

today is not actually the way it

22:50

was.

22:51

That's so interesting. Well, let's talk a little bit more

22:53

about the relationship between Harry and

22:55

Warren. One of the things that I found so dramatically

22:57

interesting is what opposites they were

23:00

in personality. Seemingly they were paralleled

23:02

a little bit in our show by

23:04

Sarah and Linda, who are also very

23:06

much opposites in personality. While Sarah

23:09

is the sort of outgoing beauty

23:11

queen who is the president of the Homemakers

23:13

Association of America in college and

23:15

always wore these pastel dresses, Linda

23:17

was the exact opposite of that. With Harry and Warren,

23:20

how are their personality is different?

23:22

So Warren Berger was very

23:25

needy. One of the most fascinating things

23:27

about getting into the Blackman papers

23:29

was the extensive correspondents

23:32

between the two of them. Blackmen saved

23:35

not only all of Burger's incoming,

23:38

but he would answer with typewritten

23:40

letters on carbon paper. If

23:43

listeners today even ever saw a sheet

23:45

of carbon paper, I'm not sure that my daughter

23:47

ever has, for instance. But so

23:50

he kept copies of all the outgoings. So

23:52

we have in his papers the complete correspondence

23:55

and Burger he's always

23:58

complaining of the

24:00

circumstances of his life and his frustrations

24:04

and his need for companionship. He

24:06

would write these letters before

24:08

they were on the court, so they were separated

24:11

by half a country. He was in Washington, Blackman

24:13

was back in Minnesota. Harry, why did

24:15

the two of us just run away together? Why don't

24:17

we go to Europe? All I have to do is pack your pajamas.

24:20

I was reading this stuff and

24:22

it's almost a little homo erotic. I don't

24:25

mean to be projecting, And certainly whatever

24:27

was going on with Berger was very deeply

24:29

buried in him. But we see

24:31

this need Blackman is my

24:35

senses would receive these letters

24:37

with a little bit of puzzlement, some

24:41

empathy, some kind

24:43

of annoyance. I think, like Warren,

24:46

I don't need to hear this today. I'm a busy

24:48

man. You could see just from the correspondence.

24:50

Blackman was quite very inner

24:52

directed. You know. He had a I

24:54

think good relationship with Dottie's

24:56

wife and raising three daughters and

24:59

I think burger 's home life was

25:02

not terrifically stable. I don't want

25:04

to say more than I know, but he

25:06

had a daughter, Mary Margaret, who had

25:09

some kind of chronic and long

25:11

lasting emotional

25:14

intellectual, I'm not sure disability,

25:16

and that was a great worry

25:19

to him. So they were, you

25:21

know, kind of on different planets in dealing

25:23

with the sort of agonies of midlife.

25:26

You might say, interesting. Yeah, so we

25:28

never go home with Warren in my show, but

25:30

we do go home with Harry. So I want to talk a little

25:32

bit about that. Harry seems to be someone who

25:35

was just surrounded by women. As

25:37

you said, he had three daughters, no sons. He

25:39

had a wife, Dottie, who's played by William

25:42

H. Macy's real life wife, Felicity Hoffman

25:44

in the show, and they seemed to be very close

25:47

and had a good marriage. So tell us a little

25:49

bit about what Harry's relationship was actually

25:51

like with his wife and daughter.

25:52

They had certain routines and

25:55

for many years Harry was involved

25:57

with the Aspen Institute in Aspen, Colorado.

25:59

They spend the summer there and

26:01

they would drive across the country, and

26:04

as they drove, Dottie would be reading

26:06

out loud to him the new petitions

26:09

that had come into the court so that

26:11

he could keep up with his work while he'd be driving

26:13

this little VW beetle. They really

26:15

were partners. I think she

26:18

was an interesting woman before she had children.

26:20

She had an interesting career. She was

26:22

a dress designer and had her own

26:25

dress shop. Right. She was a woman

26:27

of her time and didn't pursue that

26:29

when she started having babies. You know, she was

26:31

a person with outside interests. And I

26:34

think they did have a very, very

26:36

warm and mutually supportive relationship.

26:39

And I'll say that really does mirror what I

26:41

briefly saw in production with

26:43

Bill Macy and Felicity Huffman. They

26:46

recorded together, and they were adorable

26:49

together. They were constantly making jokes

26:51

with each other. It was actually really sweet to say. So.

26:53

Harry's three daughters, Nancy,

26:55

Susan, and Sally, can

26:57

you tell us anything about them? A couple

26:59

of them very much walked in their father's shoes

27:02

into the practice of law. Susie

27:04

I think was a bit of hippie.

27:06

Sally is someone

27:10

who plays a little bit of a larger part

27:12

in the show because of something I

27:14

think I learned in your book, which is

27:16

that she got pregnant when

27:18

she was in college and she was forced

27:21

to or she decided to drop

27:23

out of school and marry her

27:26

college boyfriend, and eventually

27:29

the pregnancy was miscarried.

27:31

It's very similar to something we'll talk about in a second

27:33

that happened to Sarah. Whereas Sarah, when

27:35

she got pregnant, chose to go to Mexico

27:37

and get an illegal abortion, Harry's

27:40

daughter did not. And I always wondered

27:42

how that might have weighed on Harry, what

27:45

kind of discussions they might have had behind

27:47

the scenes.

27:48

Well, again, I never liked to say more than I know,

27:50

but I'm sure that was a family trauma

27:53

because she is very

27:55

smart and you know, obviously

27:58

designed for a college and probably

28:00

professional education. She went on became a lawyer

28:02

and had a quite substantial legal career.

28:05

There's nothing I read that indicated

28:07

that the subject of abortion ever

28:10

came up, although we

28:12

know statistically in the years

28:15

before Row there were maybe a million

28:17

illegal abortions a year in the country, So

28:20

all classes of people were

28:23

easily obtained by middle class people through

28:25

networks and hospital committees

28:28

and this kind of thing. She probably could have

28:30

arranged the family probably could have arrange

28:33

for her to have even a legal

28:35

abortion. I mean, there were ways

28:38

of satisfying various requirements

28:40

and so on, but I'm not sure it ever came up.

28:42

Yeah, I'm not sure either. But that's a conversation

28:45

that I have way after the fact between

28:47

Susan and her father in the show,

28:49

and Susan, by the way, is played by

28:52

William H. Macy and Felicity Huffman's

28:54

real life daughter Sophia, which was really fun.

29:21

Aaron, you asked me where

29:24

the idea from my book came from? Where did your

29:26

idea for the show come from?

29:27

I think I first learned about Sarah

29:29

Weddington, I want to say,

29:31

when I was here in grad school, so a million

29:33

years ago, and the thing that first caught my

29:35

eye was the idea that this

29:38

was the youngest person in history to win

29:40

a case in the Supreme Court. And not

29:42

only was she the youngest person, she was the youngest

29:44

woman to ever argue a case there. And

29:46

not only was she the youngest one ever had already case there,

29:48

but she had never had a contested case before. She

29:50

had only done wills and adoptions, She had

29:52

never spoken in front of a judge. She had never been in

29:54

a courtroom, and that's what

29:56

really got me excited, this sort of underdog Aaron

29:59

Brockovich type story. Adding

30:01

to that it happened to be the most

30:03

explosive case of the twentieth century. I

30:05

could not believe that nobody else had told this story yet

30:08

I thought it was such a fascinating story. And

30:10

as I did research, reading books

30:12

like yours Becoming Justice Blackman, I

30:14

got very excited about Harry's

30:17

journey on a parallel path to Sarah's,

30:19

and about the abortion fight

30:21

in general, which of course has so many dramatic

30:24

twists and turns. What she talks about

30:26

in her book, this wasn't just a

30:28

professional cause for her. This wasn't

30:31

just a way for her to get to practice

30:33

law, although that was part of it. When no one else would

30:35

give her a case, this was a case

30:37

that was handed to her. But she went

30:39

down to Mexico and had her own illegal abortion

30:42

and really wanted to prevent other

30:44

people from having to go through that trauma.

30:47

And then something I learned from your

30:49

book that Harry Blackman,

30:51

who was a man who was a

30:53

jurist and a lawyer for many years

30:55

and didn't seem to have any obvious connections

30:58

to the abortion movement. Had

31:00

a daughter who dropped

31:03

out of school a sophomore year when she got pregnant

31:05

and had to marry her college boyfriend, and

31:07

that pregnancy eventually ended in a

31:09

miscarriage. But I was very interested

31:12

in imagining what that might have been like

31:15

behind the scenes between Harry and his daughter.

31:17

Did he suggest she should have an abortion? Did that subject

31:19

ever come up? And then last, the relationship

31:21

between Harry and Warren, which you talk about so beautifully

31:24

in your book, that they were lifelong best

31:26

friends, best men at each other's weddings,

31:29

camp counselors together, and now

31:31

I'm very close with my childhood best friends,

31:34

And just imagining the

31:36

two of them having gone from little

31:38

kids together the Minnesota twins Harry's mom

31:40

would call them to now being two of the most

31:42

powerful people in the country. I just

31:45

it all felt like such ripe

31:47

stories for drama. I absolutely loved

31:49

it. Shifting gears a little bit. I would

31:51

love to talk a little bit about Sarah and Linda.

31:54

The show is very much about Sarah on

31:56

a parallel track to Harry. Sarah

31:58

and Harry were both sort of amateurs.

32:01

Sarah to a much greater degree, had

32:03

never argued a case before, She'd never stood

32:05

before a judge, literally, never had a contested

32:07

case. She had just done a couple adoptions and wills,

32:10

and now she's taking her first ever case all the way

32:12

to the Supreme Court. Harry has

32:15

a distinguished history as a

32:17

judge and a lawyer for the Mayo Clinic,

32:19

but he was fairly new to the Supreme Court.

32:21

He had never written a major decision

32:24

for the Court before. And so I loved the idea

32:26

of these two figures on parallel tracks,

32:28

untested and maybe a little bit scared.

32:31

So can you talk a little bit about the brief

32:33

for Roe v. Wade. A big part of one episode

32:36

is Sarah and Ron and

32:38

then eventually Linda coming. They moved to the Women's

32:40

Institute in Gramercy in New York.

32:43

It's an irving place around

32:45

seventeenth Street. The building is still there. I

32:47

walk by it all the time. And the

32:50

Women's Institute offered them space

32:52

and interns to help them write

32:54

the brief in the summer before the Supreme

32:56

Court. So can you tell us a little

32:58

bit about what court brief

33:00

is, what sort of goes into it.

33:03

So the idea of the Spreme Corp. Brief is

33:05

to present the argument in

33:07

the most effective way. It has an introduction,

33:11

it has a summary of argument, and then you

33:13

want to say how the argument

33:16

you're making is the logical

33:19

extension of the Court's

33:22

body of work that's come before, of

33:24

the precedence, And the idea

33:26

in Roe was to show how it grew

33:28

naturally out of a case

33:30

that had been decided less than ten years before,

33:33

Griswold against Connecticut, which in

33:36

nineteen sixty five the Court found there was a

33:38

constitutional right for married couples

33:40

to use birth control. Now this is

33:42

in my lifetime. It's kind of astonishing

33:44

that you know, in the lifetime of people who

33:46

are walking around today and who still look get

33:49

themselves out of bed, that birth

33:51

control was illegal in the state of Connecticut,

33:54

which is where we're now having to be recording

33:57

this episode. So Griswolding

33:59

is to get recognized a right to

34:01

privacy growing out

34:03

of the due process guarantee

34:06

in the fourteenth Amendment, and

34:09

had other stuff in it too, of course. So

34:11

the idea was to say to the court, this is

34:13

what you said not too many years ago, and

34:16

here's the logical consequence.

34:18

If you can have birth control because you don't

34:21

want to bear a child, you have the right

34:23

not to bear a child, as guaranteed by

34:25

the Constitution. So that was the effort.

34:28

And the kind of back story

34:30

of the brief is that it was based

34:32

on a low review article

34:35

that had appeared not too long

34:37

before in the Law Journal of

34:39

the University of North Carolina by a young

34:41

guy named Roy Lucas, and

34:44

it had gotten a fair amount of play,

34:46

and Roy Lucas had drafted

34:49

part of the brief and there

34:52

was a good deal of tension between

34:54

him and Sarah and Linda as

34:57

to who was going to get to argue. And Roy Lucas,

34:59

who am I I knew, never let go

35:01

of his anger that he had

35:03

not been the one who argued.

35:05

Let's talk about this because this is part of the show. Also

35:07

really is played by Luke Kirby in our

35:09

show, Who's Lenny Bruce and the marveless

35:12

Missus mays All just a fantastic actor, and

35:15

he was a major player, if not the major player

35:17

in abortion cases in the country at the time. And

35:20

so what Sarah writes in her book is

35:22

that really tried to steal the case away

35:25

by writing a letter to the Supreme Court saying

35:27

that he would be the one arguing

35:29

the case. What are your sort of thoughts on

35:31

that.

35:31

Well, I mean, he was deeply invested and

35:35

he had done the work. And like

35:37

a lot of creators, you launch

35:39

something in the world and you lose control of

35:41

it. So he got back

35:44

into the game later. He had other abortion cases

35:46

that he argued before the Supreme Court,

35:48

but he missed the big one. Yeah, and was

35:51

very bitter, and I think his bitterness about

35:53

it overshadow the rest of his life.

35:55

Yeah. So going back to the

35:57

Supreme Court once it's time

36:00

for Harry to assemble

36:02

a majority. As you said, he got a seven to

36:04

two majority in the case, including

36:07

warren Berger's vote. How does the justice

36:09

go about assembling majority? I know is

36:11

very important to Harry that this case

36:14

be as close to unanimous as possible.

36:16

How do you go about doing it?

36:18

Well, you've got to write a draft. And

36:20

what happens is you get the assignment

36:22

and it then falls you to write

36:24

a draft, which you then circulate.

36:27

And the Court has an odd locution.

36:30

One justice will say, you have

36:32

my join is usually a

36:34

verb in the English language, but at the Spreme

36:36

Court locution it's a noun.

36:38

You have my join That means I'm going to sign your

36:40

opinion. You've got me or can say

36:43

you know, I'm with you part of

36:45

the way. But I really not comfortable with

36:47

Section X and i'd like to

36:49

see that revised in such and such a way,

36:52

and that kind of thing. The burden

36:54

is on the justice who got the assignment,

36:57

and it's a burden that sometimes that justice

37:00

can't carry what's known as you can lose

37:02

the court when you don't get five votes.

37:05

So that was part of the challenge

37:07

for Harry.

37:08

Yeah, Harry took the

37:10

sort of unusual step, as my understanding

37:13

and read his final decision

37:16

alone from the bench to a room

37:18

full of reporters. And that's dramatized

37:20

in the show with Kitty Kurk playing

37:22

one of the reporters talking about it outside

37:24

the courthouse. Any idea why Harry

37:27

chose to do this, to read the decision from

37:29

the bench.

37:30

Oh, I'll give you a bit of historical context

37:32

and correction.

37:33

Please.

37:34

It was and we'll see

37:36

if that is going to continue in the post pandemic

37:39

world. We don't know yet. Very common,

37:41

I mean expected for the justice

37:44

who has the majority opinion to announce

37:46

from the bench a summary

37:48

of it, and that's called the handdown.

37:51

It's handed down from the bench

37:53

orally to the public.

37:55

Now who's the public. There's maybe two hundred

37:57

tourists or whatever sitting in the courtroom, and then

38:00

there's a couple rows of press seats. Nobody

38:03

knows when an opinion's coming down. So

38:05

Roe came down in January. It wasn't

38:08

one of these let's hold our breath for June,

38:10

like with the Dobbs opinion that

38:12

overturned Row. So just happened to come

38:14

down in January. But what Harry did

38:17

that was a little bit unusual was

38:20

he wrote his hand down, not

38:22

the full opinion. He wrote his hand down,

38:24

which is just a few pages, and

38:27

he circulated it in advance to

38:30

the justices in the majority to

38:32

get their feedback. And

38:35

Burger came back and said,

38:37

I think you should say we

38:40

are not authorizing abortion on

38:42

demand.

38:43

Wow.

38:44

And I saw in Blackman's papers,

38:46

his draft of the handdown and Burger's

38:49

response. And Blackman

38:51

did not say that in his oral

38:54

announcement. And that was

38:56

clue as to where Berger was

38:58

heading. Because what

39:01

does abortion on demand mean? What does that

39:03

phrase mean? We hear it, we

39:05

don't hear about I want an appendectomy

39:08

on demand, I want a nose job on demand.

39:10

What does it means? The abortion on demand? It

39:13

actually is a perversion

39:15

of a feminist slogan. Before

39:17

Roe, women were marching

39:19

under banners that said we

39:21

demand free twenty

39:24

four hour childcare and free

39:27

abortions. That means we

39:29

want the right to become mothers

39:31

and stay in the workplace. We want childcare,

39:34

or on the other hand, we want the right not

39:36

to become mothers if we don't want to become mothers.

39:39

It was a two part thing, but

39:41

the anti abortion crowd picked

39:44

up the abortion on demand as

39:46

a stand alone and a kind of an ugly

39:49

phrase that made

39:51

women who were seeking

39:54

to change the abortion laws sounded very

39:56

unappealing. Demanding anything sounds unappealing.

39:58

What they were demanding was a constant titutional right.

40:00

So for Burger to reflect that

40:03

perversion of the language that I just

40:05

described, I think

40:07

tells us that although Harry had

40:09

his join that Burger was

40:11

not going to be reliable.

40:13

Interesting, and just to give a little

40:15

bit more contacts the previous court

40:17

from the Burger Court, the Warren Court. They

40:19

were known for expanding rights

40:22

with Gideon and Miranda and

40:24

Brown v. Board. Now, with the Burger

40:26

Court that had, as you said, three Nickson

40:28

appointees at least three four four, what

40:31

was the thinking, would the expansion of rights

40:33

continue? Or I assume the thinking was the

40:35

expansion of rights would end if not the restriction

40:37

of rights.

40:38

I don't think they woke up in the morning and said,

40:40

Okay, we're going to spend the next twenty years of our

40:42

life restricting rights.

40:44

But you don't think the current court's doing that?

40:46

Oh yeah, I think with the Nixon appointees

40:48

to the Burger Court, they Nixon

40:51

ran against the Warren Court.

40:54

In his nineteen sixty eight presidential campaign.

40:56

He had all kinds of dog

40:58

whistles order crime. Those

41:01

were dog whistles for race. By

41:04

nineteen sixty eight, you couldn't quite

41:06

put yourself in the you know, segregation

41:09

side of the street. So you use

41:11

crime much as being used today.

41:14

Very few things that are all that new under the sun.

41:16

But yeah, the Nixon appointees on the court certainly

41:18

thought the war In Court had

41:21

gone too far and needed

41:23

the court needed to be real back, which

41:25

makes Roe stand as a kind of anomaly

41:28

against some of the other things

41:31

that happened during the Burger years.

41:33

But in context, they

41:36

didn't think they were advancing a feminist

41:38

cause. For instance, they didn't think

41:40

of abortion as a

41:42

cause. They actually thought

41:45

of abortion as it is, which

41:47

is a medical procedure, full stop.

41:50

And they were

41:52

responding to not

41:55

the cause of women on the streets. They couldn't

41:57

hear those that didn't compute

41:59

with them. They're responding to the

42:01

fact that the American Medical

42:03

Association, the American

42:06

Public Health Association, the American

42:08

Law Institute, which is an organization

42:10

of very elite lawyers and judges

42:13

and professors, all were calling for

42:15

decriminalization of abortion.

42:17

The overturning of rov Wade came

42:20

when I was near the end of writing the audio

42:22

series. That's why I added the ending

42:24

with Katie Kurk that we heard where

42:27

she talks about how dangerous a

42:29

political court is, a politicized court.

42:31

I'm curious where you think Roe

42:34

and the abortion fight goes from here.

42:36

It goes into electoral politics.

42:39

I think we saw in the midterms

42:41

in November where it goes, and

42:43

it stopped the predicted

42:46

red wave. It led to democratic

42:48

governors and state legislatures

42:50

being elected on the abortion

42:53

issue. So it

42:55

opened up a new framework for

42:58

keeping this issue alive that it will

43:00

be kept alive. So

43:26

you must have taken a fair amount of creative license

43:28

in the show.

43:29

So I tried to keep it as

43:32

true to the historical record as I possibly

43:34

could. The way I think about it a little bit

43:37

is the way some of my heroes

43:39

have talked about the way they adapt true

43:41

stories. Aaron Sorkin, for instance, who

43:44

wrote The Social Network and Steve Jobs

43:46

and the recent Lucille Bald movie, he talks

43:48

about when he takes a true story and dramatizes

43:50

it, he thinks of it

43:52

as a painting rather than a photograph.

43:55

He's going to have his own interpretation, his own point

43:57

of view, but it's still the story.

44:00

David mammontt talks about how

44:03

his job is not to document,

44:05

his job is to persuade, and

44:08

so I tried to do something similar. Just

44:10

the fact that this show takes place over

44:12

nine episodes instead of over four years

44:15

means that I had to take some creative

44:17

license. The only characters who

44:19

are completely invented, I should

44:21

say, are composites are Andrea Savage's

44:24

character deb Margalise and

44:26

Laura Bonanti's character b Cutress.

44:29

Those are composites, and then when

44:32

Sarah and Harry speak on the phone.

44:34

I really wanted a moment where these two characters

44:37

whose journeys we've been following on parallel

44:39

tracks for so long, finally come together.

44:41

And of course they do come together in the Supreme Court

44:43

when Harry is raining questions down on her, But

44:46

that didn't really give me the sort of intimate moment

44:48

that I wanted. So I took a page

44:50

from Peter Morgan's

44:53

script that Ron Howard directed Frost Nixon,

44:55

where Nixon has a middle of the night,

44:58

drunken phone call with from Lost

45:01

and that never happened. That was completely invented

45:03

by Peter Morgan. So similarly, I

45:05

have Sarah desperate to

45:08

find out when the decision is finally going to come

45:10

down and she can go on with her life, and so she

45:12

calls the court to try to get any intel

45:14

she can from whatever clerk answers the

45:16

phone. And on this particular night when

45:18

she calls, Harry is busy

45:21

working on the decision, and he

45:23

answers the phone and so he never reveals

45:25

himself. So it's the kind of scene that could have

45:27

happened, although it never did, and they have a

45:29

very human conversation about fathers

45:32

and daughters. They're sort of a spiritual

45:34

father and daughter dynamic. Harry talks about

45:37

his daughters and Sarah talks about her father, who's

45:39

so brilliantly played by Josh Hamilton in the show

45:41

Pretty Cool. This

45:52

bonus episode of Supreme The Battle for Row

45:54

is hosted by me Aaron Tracy. It's

45:56

edited by Carl Catyl, music by Anna

45:59

Stump and Hamilton. Like Houser, a big

46:01

thank you to the Yelle Broadcast Studio and to

46:03

Linda Greenhouse for offering her time and expertise.

46:06

Supreme The Battle for Row is a

46:08

nine part audio drama about the legal minds

46:11

behind the historic Supreme Court decision Roe

46:13

v.

46:13

Wade.

46:14

Listen on iHeartRadio, Apple Podcasts,

46:17

or wherever you get your podcasts. Thanks

46:19

for listening.