High Court Was Close to Overturning Roe

WASHINGTON —  As lawyers and court watchers have long suspected, the Supreme Court in 1992 was ready to effectively overturn the landmark Roe vs. Wade ruling legalizing abortion, but Justice Anthony M. Kennedy got cold feet and the vote went the other way.

Internal notes in the papers of the late Justice Harry A. Blackmun reveal the secretive dealings that led to the court’s ruling in Planned Parenthood vs. Casey that year.

Blackmun’s extensive records from 24 years on the court are to be opened to the public today. But details of the archives were released Wednesday by Nina Totenberg of National Public Radio, who got advance access.

Blackmun’s notes show that Chief Justice William H. Rehnquist led a five-justice majority to overrule Roe. Four other justices voting with Rehnquist were Byron R. White, Antonin Scalia, Clarence Thomas and Kennedy. Rehnquist himself was to write the majority opinion.

Unbeknownst to Rehnquist, Kennedy was having second thoughts, and agreed with Justices Sandra Day O’Connor and David H. Souter to a compromise position.

The Casey ruling carved out a middle ground that upheld a woman’s right to abortion largely free from state regulation.

The case was argued in April and Rehnquist was at work on his majority ruling when Kennedy sent a note to Blackmun, NPR reported.

“I need to see you as soon as you have a few moments. I want to tell you about a new development in Planned Parenthood [vs.] Casey. It should come as welcome news.”

Blackmun had written the Roe ruling 18 years before and had guarded it from previous attack from conservative justices.

Blackmun’s paper legacy, filling more than 1,500 boxes, will be unsealed today on the fifth anniversary of his death.

It’s been more than a decade since intimate details of the court’s inner workings were revealed in Justice Thurgood Marshall’s papers, which elicited bitter criticism within the court because the papers include secret memos and unpublished draft opinions in controversial cases.

Most current justices are expected to ensure their files and any embarrassing secrets they might hold will be protected long after their deaths.

Blackmun, like Marshall, served 24 years on the court and into his 80s, retiring in 1994. He accumulated far more correspondence than Marshall.

The appointee of President Nixon “took copious notes and never threw away any of his papers,” Washington lawyer David Frederick said.

His authorship of Roe vs. Wade brought him more than 60,000 angry letters and repeated threats on his life.

Blackmun, who died at age 90, served with eight of the current nine justices. Stephen G. Breyer was chosen as his successor in 1994.