Ep 10: Bonus - The Conversation

Published Aug 23, 2023, 8:00 AM

Series Creator Aaron Tracy speaks with Pulitzer Prize-winning author Linda Greenhouse, who reported on the Supreme Court for The New York Times for 30 years.

Episode ten, the conversation between Supreme Court expert Linda Greenhouse and series creator Aaron Tracy.

I'm Mary Tracy, the creator and writer of the nine episode audio drama you just heard. For this tenth and final episode of the season, we're going to do something a little different. The scripted portion of the podcast is behind us. No more Maya Hawk or William H. Macy or any of the other extraordinary actors from the show, but in their place for this bonus Linda Greenhouse. Linda is undoubtedly one of the world's experts on the Supreme Court and on Harry Blackhaman in particular. She covered the Supreme Court for three decades for The New York Times and was awarded the Pulitzer Prize and Journalism for her coverage. A little detail I love, by the way, when Linda retired from the Times, seven of the nine sitting Supreme Court justices attended a goodbye party for her. Linda all read the book Becoming Justice Blackman, which was hugely helpful to me in crafting the show. Linda is my colleague here at Yale, where I'm in the English department, and she teaches in the law school. She's about to join me here on campus, and I truly could not be more excited. So thanks for listening. Enjoy this bonus episode. All right, so, Linda, one of the things I was most interested in and that we deal with in the first few episodes of the show, is that Harry never wanted to be on the court. His best friend, Warren Berger, seemed like the much more and of course correct me if I'm wrong, but seemed like the much more ambitious man wanted to have his place in history, very much wanted to get to the Supreme Court. And Harry had to be led kicking and screaming a little bit. Is that true?

Yeah, I wouldn't say so much kicking and screaming, but with great ambivalence. In a way, he kind of underestimated himself. He was very smart. He was Assuma Cumeloud, a graduate of Harvard, so you know, there was no moss growing on him intellectually. But his personality was very diffident, and he was happy living in Minneapolis and sitting on the eighth Circuit and worked very hard. And one of the things I found in his files was when he got the offer, he took out a piece of notebook paper and he wrote the pros and the cons of taking it, and they were about equal. I wish I could side off the top of my head with oh, well.

I put Actually, I think I can name a few because I put them in the show.

Oh okay, okay.

The opening scene when we first meet Harry played by William H. Masy is he's at a bar by himself, waiting for Warren to show up, who's played by William Fickner, and Harry is jotting down that list of pros and cons, and so there are things like loss of contact with friends and family was a con. Potentially it hurting his relationship with Warren was a con. He didn't know how the friendship would survive. That they were both in the court.

That was very precious.

Another drink, everybody, Hello, buddy, looks like you got a lot more cons than pros. There? What your list on the cocktail napkin? There? Here? Let me see cons? Loss of contact with friends in my family? Please don't read that. Okay, what's the list for? I'm I might be offered a job. This is just this is how I chew things over a job in this economy. Whatever it is, Buddy, I take it. Mark I'll have whatever my buddy's drinking. Keep going.

So what can you tell us about Sarah as a person. She seems like an unlike figure. Two have been involved in the most controversial legal case of the twentieth century.

Yeah, I mean she didn't start out to be what she became. She was kind of recruited by a women's group in Austin, where she was living, who wanted advice on birth control actually, which was once again a contested issue, but was a contested issue back then, and this group urged her to be part of a challenge to the Texas abortion Law. The Texas abortion Law was one of the very common laws that outlawed abortion except for circumstances when a woman's life was endangered by the pregnancy. And she didn't really know what to do. But she and Linda Coffee had been classmates. I think Linda had been a much better law student and have clerked on the district court federal just record in Texas, which was a big deal for a woman in those days.

Yeah, there were two of only five women in their entire law school class.

Yeah, it speaks well of Sarah that she got into law at the University of Texas, which was and still is a very good law school. But Linda was the one who was actually a practicing lawyer, and they became partners in this enterprise. But I should just say there were cases like this popping up all over the country. The pipeline of courts all over the country were filling up with challenges to various abortion laws, one of which by that time actually has succeeded in California in state court, not in a federal court. So there was a lot going on, and there was no particular reason at the beginning of this case to think that this was going to be the one. There were actually better cases. I hate to say that after all these years, but there was a case that was developed by Yale Law School female students and some Yale Law School professors, a case that came to be known as Women against Connecticut on behalf of a thousand plaintiffs. The official name of the case is ably against Markel. That was in the pipeline and just missed out. Rogue got there first.

Interesting.

Yeah, History's made up of so many contentiencies, and the story of abortion in America is certainly one of them.

What's the case?

Does it matter?

It's a real case, Sarah.

What is it.

We're challenging the Texas abortion laws in federal court. Don't laugh at me, Linda. How often do people with our chromosomes get actual legal work in this state? I just wish someone had warned me before three years of law school that no one would ever hire.

Me, Sarah. Everyone warned you.

And I know I'm not in the movement, okay, but this is a great opportunity to get some legal experience.

I know it is. That's not why I laughed. I've been working on the same thing, Sarah.

What are you talking about.

I haven't gotten far. I had this day job, but I do have some research and a lot of ideas.

I knew I came to the right person.

Don't get excited. We're definitely going to lose.

Who cares. I do have one question. I'm hoping you can help me with a right off the back though, Linda.

And what's that?

What the hell do we do? First?

What can you tell us about Sarah and Linda as partners? The way I dramatized it, which is of course pulled from my research, is that they were a little bit similar to Warren and Harry and that they had very different strengths, very different personalities. It feels like Linda was fantastic with paperwork and with research, and as you said, she had clerked for a judge before, so she knew court procedure, whereas Sarah was someone who could captivate. She was someone who could speak in front of a judge and really get their ties.

Yeah, she was missed outside and Linda was the inside, heavy lifter of the work. It was certainly a functional partnership. It was unequal in some ways. Sarah in her post row life was really out there swinging for the fences out on the speaking circuit and lionized in feminist circles, and Linda really disappeared from history.

Yeah. And in the show, the performances are extraordinary. Maya Hawk plays Sarah Weddington, Abigail Breslin plays Linda Coffee. They're both just so incredibly great at capturing those different sorts of personalities that the two had. I want to talk a little bit about what the actual work was because I'm a huge fan of courtroom dramas. Most of my favorite movies in fact are courtroom dramas. But setting a show in the Supreme Court is very different. In a courtroom drama, you get witnesses and you get cross examinations, and you get interplay among the lawyers and the judge, and a Supreme Court drama, by necessity is very different. So in the show, we certainly recreated some of it where Sarah and her opposition are giving their oral arguments and I decided to cut back and forth between them and the justices are reading questions on them. But can you tell us a little bit about the differences between what goes on in Supreme Court and what goes on in a normal court of law.

So I'll talk about the Supreme Court as it was, not the Supreme Court as it is. I have to say post pandemic arguments that the court have become really wild and wooly and they're not like they were, by which I mean in the pre pandemic days, a Supreme Court argument lasted for an hour a half hour per side, and the one who went first noticed the petitioner or in the case of rob Is that the appellant would save five minutes at the end for rebuttal. And it was very scripted in that way. And when your red light went on, that meant your thirty minutes were up, you stopped talking, or the Chief Justice was going to say, counsel, your time has expired. So there was not in real life, you know, kind of back and forth, but there was a lot of questioning, and justices could jump in at any time, and that's still the case, of course, and just try to ask hypothetical questions, the purpose being the court knows now. Row might have been a little different because the Court knew it was embarking into kind of unknown territory. But in the typical case, the Court doesn't view itself as resolving a particular dispute, but really as the lawgiver for the for the whole system. So they don't just want to know what to do with you. They want to know, if we do what you want us to do with you, what are the implications for the next case. Where does this go? What road should we go down that you're offering us, What road had we better avoid? Or we're going to open up a whole hornet's nest of new legal problems. That's the reason for the questioning.

Really, yeah, I went to visit the Supreme Court. It's research for writing the show, and one of the things that struck me the most was when you were standing at the advocate's lectern and you reach out your hand, if the Chief Justice leaned down or reach out his hand, you could shake. That's how close you are to the bench. And for Sarah at twenty six years old, never having taken on a contested case before, it must have been absolutely terrifying for her to stand at the lectern with Thurgood Marshall raining down questions and Warren Berger and Harry Blackman. That must have just been so overwhelming.

Well.

Yeah. In fact, Ruth Ginsberg, who had many arguments before the Supreme Court when she was a civil rights advocate before she came a judge, talked about how intimidating it was and how nervous she was, and if she had an afternoon argument she never had lunch. Really, yes, I think it's a very scary thing. There's a good new book out actually people might like to know about. It's called in the Chamber of the Appellate Gods and is filewoman who had her one Supreme Court argument would turn out to be a big criminal case, a case called a prendy, And she writes about it's almost like kind of diary entries of her preparation and her terror of getting up there representing the state of New Jersey. She was a state lawyer, so yeah, there's nobody who can take it casually.

And it must have been all the more disconcerting for Sarah. I think you write about in your book about Blackman Somewhere. I read it that Sarah before argument was looking for the restroom, but of course there was no women's restroom in the layer's lounge, and so she had to go all the way down to the basement. There were so few women who worked at the Supreme Court, and I'm sure that frazzled her a little bit too.

Yeah, and as you said, with the potential handshaking between the advocate and the chief Justice. It's a grand chamber, but it's very intimate. I mean, it holds about maybe four hundred people, which is not small, but the kind of way it's arranged, there's an intimacy to it, much more so than people would expect.

I think, yeah, totally. The entire courthouse is so interesting. Each justice's chambers are much smaller than I would have imagined. There are all sorts of very old fashioned parts to it. There's a spiral staircase in the back where I set a scene, and the main hallway is so grand with busts of all the former justices, it can be an intimidating place.

I once tagged along when I was a reporter at the court, tagged along on a public tour just to see what the public was told. But we were taken up into the chamber, which has, as you saw, long red velvet curtains ceiling to floor curtains, and the tour guide said, now on these curtains are the longest zippers in the world. I remember hearing that, thinking, so, you say, I.

Don't know how anybody can prove that. That is a very interesting fact to brag about. That does remind me that there's one very strange setting where I set a couple scenes. There's a robing room right backstage. Reminds me of the dugout before players take the field in a baseball game. This is where justice is. As I say this, it almost feels like it can't be true, but justices have sort of lockers and they put on their robes back there before going out into court. Is that right?

Yeah?

Yeah, So they have clothes under their Rubes.

But yes, and are they just chatting back there about what's about to happen. I mean it feels so I don't know something about It feels so much like a sport rather than these distinguished justices that we're used to imagining.

I don't actually think they're chatting. If they're chatting, it's not about the cases they're about to hear. I think that's the norm at the court that they don't chat in advance. They do their homework in advance. The Supreme Court's what is known as a hot bench, and that doesn't mean what it sounds like. It doesn't mean they're yelling and screaming and throwing things. A hot bench means they come unprepared, they've done their homework, as opposed to there were courts where the notion is, we're not going to do anything in advance. Let's just see how the argument goes and how the argument strikes us. They don't schmooze about it in real time.

So tell me about the relationship between Harry and Warren, because I'm completely fascinated by it. One of the things that first made me want to write the show was when I realized that the author of Rovi Wade on the Court was Harry Blackman, whose best friend, his life long best friend, was the Chief Justice.

Right so they grew up together in the Saint Paul. They came from quite different backgrounds and had quite different trajectories as young people. Harry's family had very little money, but they had some and he goes off to Harvard on a Harvard Club of Minneapolis scholarship, and that was a real kind of bursting out of the rather narrow circumstances of his childhood. And Berger didn't have that leap to make. Harry always loved medicine, and he actually wanted to go to medical school, but that would have required staying longer as an undergrad and taking some of the requisite science courses that he hadn't taken, and so law was really his kind of second choice. But once he made that choice, and he had a nice clerkship, not in the Supreme Court but lower federal court clerkship, and a good law practice, and that's what he was devoting himself to. Berger decided to make his way in Republican politics. And of course Republican politics in Minnesota are not the Republican politics that we see today, but he was certainly on the conservative side. Nonetheless, he ingratiated himself to Dwight Eisenhower at the Republican National Convention in nineteen fifty two when Eisenhower had a serious opponent for the nomination. Taft and Berger was quite influential in throwing the convention to Eisenhower. And he got his reward, which was to come to Washington and significant job in the Justice Department as an assistant Attorney General. And you know then he was often running and he got a seat on the DC Circuit, often called, I think with reason, the second most important federal court in the country, second only to the Supreme Court. And he almost immediately started lobbying to get on the Supreme Court. He went around the country giving speeches, very conservative law and order type of speeches, and things broke his way, and Richard Nixon got elected and or Warren retired, Nixon had a vacancy to fill for Chief Justice, and there was Warren Berger with his hand up and was a very attractive candidate from Nixon's point of view. So that was his story.

And then when he was on the court, a vacancy opened up and Nixon's first two nominees to fill that vacancy both fell in the Senate, and so Nixon was desperate to find someone I guess you tell me if I'm wrong, but to find someone uncontroversial who could fill that third seat. And Warren whispered to his buddy Nixon, my best friend from childhood is your guy.

And Blackman was totally uncontroversial, and that he was totally unknown and not on anybody's screen didn't push any of the hot buttons that Hainesworth and Carswill that defeated nominees had encountered opposition from the Democratic controlled Congress, So yeah, why not Harry Blackman.

It's such a great irony and so great for the drama that Harry Blackman was brought onto the Court because he was incredibly uncontroversial that he might actually get through and of course ended up being one of the most controversial justices of all time because he authored the decision in Roe v. Wade.

There's so many ironies, because of course Roe wasn't Harry Blackman alone. It was a seven to two decision. If you ask most people just walking down the street who think they know anything about the Supreme Court, what was the vote in row against Wade. I guarantee they would say five to four, right, But it was seven to two, including three of Nixon's four appointees, including warren Berger, who is the one who assigned Blackman to this task. Although black Men forever in history will be known as the justice who wrote against Wade, it was a collective effort and everybody else kind of skated free, and he's the one who got stuck with it. Right.

Yeah, And let's talk about that for a second, because I make a meal out of that in the final few episodes as black Man is trying to win votes to his side. First, why did warren Berger assign the decision of Rovie Wade to black Men? He had never written a major decision before. Why give him the abortion controversy for his first thing.

It's a mystery that's never been quite explained. But I think we have to understand the context, and the context is a little bit counterintuitive. The Court had an awful lot on his plate, and abortion was not the hot issue that it then became after the careful cultivation by the Republican Party to turn it into the culture war issue of our time. It was not that. Actually there was a fairly wide consensus in the country, everybody except the bishops, that it was time to modernize the era of the criminalization of abortion. So the court knew it was a bit of a hot potato, but they had a lot of hot potatoes in those days, largely with criminal law, with the civil rights cases, religion, prayer and schools. A lot of stuff was going on. You know, everybody gets their share of opinions at the court. The way the court works is it sits in two week argument sessions scattered throughout the term, and every justice is supposed to get roughly the same number of opinion assignments for every one of the two week sittings. And so I never went back to see who had the other opinions in the first time role was argued, which was in early nineteen seventy.

Two, Yeah, let me just take a quick side there. So Roe v. Wade was argued twice, one year apart, and the first time it was argued there were only seven sitting justices, and then they decided that this was too important a decision to be decided by a small court, and so Sarah had to go back the following year and argue it all over again when there were nine justices, And that's one of those examples of for dramatic effect, I just decided to conflate the two. It would just be too confusing to have two separate trials in the show, so I conflated them. But for the most part, the Supreme Court case that we hear in the show is that second argument.

And the fact that there are two arguments tells us something. And here's what it tells us. Justice Harlan and Justice black Ab roughly retired at the beginning of the nineteen seventy one term, leaving, as you just said, justices, and they had a bunch of cases scheduled for argument. So what to do? And they set up a little committee. And I never quite could get this is from Blackman's notes. I never could quite get the full membership of it. But I think Blackman was on that, Potter Stewart was on it to decide which of the cases were so important that they should be held for the two vacancies to be filled by President Nixon, and which were the more ordinary cases that they could just go ahead and argue with seven justices. And Roe versus Wade fell in the second category. They went ahead and argued it because they didn't think it was so important that they needed to wait for nine justices. That tells us that the way we understand the context of Roe today is not actually the way it was.

That's so interesting. Well, let's talk a little bit more about the relationship between Harry and Warren. One of the things that I found so dramatically interesting is what opposites they were in personality. Seemingly they were paralleled a little bit in our show by Sarah and Linda, who are also very much opposites in personality. While Sarah is the sort of outgoing beauty queen who is the president of the Homemakers Association of America in college and always wore these pastel dresses, Linda was the exact opposite of that. With Harry and Warren, how are their personality is different?

So Warren Berger was very needy. One of the most fascinating things about getting into the Blackman papers was the extensive correspondents between the two of them. Blackmen saved not only all of Burger's incoming, but he would answer with typewritten letters on carbon paper. If listeners today even ever saw a sheet of carbon paper, I'm not sure that my daughter ever has, for instance. But so he kept copies of all the outgoings. So we have in his papers the complete correspondence and Burger he's always complaining of the circumstances of his life and his frustrations and his need for companionship. He would write these letters before they were on the court, so they were separated by half a country. He was in Washington, Blackman was back in Minnesota. Harry, why did the two of us just run away together? Why don't we go to Europe? All I have to do is pack your pajamas. I was reading this stuff and it's almost a little homo erotic. I don't mean to be projecting, And certainly whatever was going on with Berger was very deeply buried in him. But we see this need Blackman is my senses would receive these letters with a little bit of puzzlement, some empathy, some kind of annoyance. I think, like Warren, I don't need to hear this today. I'm a busy man. You could see just from the correspondence. Blackman was quite very inner directed. You know. He had a I think good relationship with Dottie's wife and raising three daughters and I think burger 's home life was not terrifically stable. I don't want to say more than I know, but he had a daughter, Mary Margaret, who had some kind of chronic and long lasting emotional intellectual, I'm not sure disability, and that was a great worry to him. So they were, you know, kind of on different planets in dealing with the sort of agonies of midlife.

You might say, interesting. Yeah, so we never go home with Warren in my show, but we do go home with Harry. So I want to talk a little bit about that. Harry seems to be someone who was just surrounded by women. As you said, he had three daughters, no sons. He had a wife, Dottie, who's played by William H. Macy's real life wife, Felicity Hoffman in the show, and they seemed to be very close and had a good marriage. So tell us a little bit about what Harry's relationship was actually like with his wife and daughter.

They had certain routines and for many years Harry was involved with the Aspen Institute in Aspen, Colorado. They spend the summer there and they would drive across the country, and as they drove, Dottie would be reading out loud to him the new petitions that had come into the court so that he could keep up with his work while he'd be driving this little VW beetle. They really were partners. I think she was an interesting woman before she had children. She had an interesting career. She was a dress designer and had her own dress shop. Right. She was a woman of her time and didn't pursue that when she started having babies. You know, she was a person with outside interests. And I think they did have a very, very warm and mutually supportive relationship.

And I'll say that really does mirror what I briefly saw in production with Bill Macy and Felicity Huffman. They recorded together, and they were adorable together. They were constantly making jokes with each other. It was actually really sweet to say. So. Harry's three daughters, Nancy, Susan, and Sally, can you tell us anything about them? A couple of them very much walked in their father's shoes into the practice of law. Susie I think was a bit of hippie. Sally is someone who plays a little bit of a larger part in the show because of something I think I learned in your book, which is that she got pregnant when she was in college and she was forced to or she decided to drop out of school and marry her college boyfriend, and eventually the pregnancy was miscarried. It's very similar to something we'll talk about in a second that happened to Sarah. Whereas Sarah, when she got pregnant, chose to go to Mexico and get an illegal abortion, Harry's daughter did not. And I always wondered how that might have weighed on Harry, what kind of discussions they might have had behind the scenes.

Well, again, I never liked to say more than I know, but I'm sure that was a family trauma because she is very smart and you know, obviously designed for a college and probably professional education. She went on became a lawyer and had a quite substantial legal career. There's nothing I read that indicated that the subject of abortion ever came up, although we know statistically in the years before Row there were maybe a million illegal abortions a year in the country, So all classes of people were easily obtained by middle class people through networks and hospital committees and this kind of thing. She probably could have arranged the family probably could have arrange for her to have even a legal abortion. I mean, there were ways of satisfying various requirements and so on, but I'm not sure it ever came up.

Yeah, I'm not sure either. But that's a conversation that I have way after the fact between Susan and her father in the show, and Susan, by the way, is played by William H. Macy and Felicity Huffman's real life daughter Sophia, which was really fun.

Aaron, you asked me where the idea from my book came from? Where did your idea for the show come from?

I think I first learned about Sarah Weddington, I want to say, when I was here in grad school, so a million years ago, and the thing that first caught my eye was the idea that this was the youngest person in history to win a case in the Supreme Court. And not only was she the youngest person, she was the youngest woman to ever argue a case there. And not only was she the youngest one ever had already case there, but she had never had a contested case before. She had only done wills and adoptions, She had never spoken in front of a judge. She had never been in a courtroom, and that's what really got me excited, this sort of underdog Aaron Brockovich type story. Adding to that it happened to be the most explosive case of the twentieth century. I could not believe that nobody else had told this story yet I thought it was such a fascinating story. And as I did research, reading books like yours Becoming Justice Blackman, I got very excited about Harry's journey on a parallel path to Sarah's, and about the abortion fight in general, which of course has so many dramatic twists and turns. What she talks about in her book, this wasn't just a professional cause for her. This wasn't just a way for her to get to practice law, although that was part of it. When no one else would give her a case, this was a case that was handed to her. But she went down to Mexico and had her own illegal abortion and really wanted to prevent other people from having to go through that trauma. And then something I learned from your book that Harry Blackman, who was a man who was a jurist and a lawyer for many years and didn't seem to have any obvious connections to the abortion movement. Had a daughter who dropped out of school a sophomore year when she got pregnant and had to marry her college boyfriend, and that pregnancy eventually ended in a miscarriage. But I was very interested in imagining what that might have been like behind the scenes between Harry and his daughter. Did he suggest she should have an abortion? Did that subject ever come up? And then last, the relationship between Harry and Warren, which you talk about so beautifully in your book, that they were lifelong best friends, best men at each other's weddings, camp counselors together, and now I'm very close with my childhood best friends, And just imagining the two of them having gone from little kids together the Minnesota twins Harry's mom would call them to now being two of the most powerful people in the country. I just it all felt like such ripe stories for drama. I absolutely loved it. Shifting gears a little bit. I would love to talk a little bit about Sarah and Linda. The show is very much about Sarah on a parallel track to Harry. Sarah and Harry were both sort of amateurs. Sarah to a much greater degree, had never argued a case before, She'd never stood before a judge, literally, never had a contested case. She had just done a couple adoptions and wills, and now she's taking her first ever case all the way to the Supreme Court. Harry has a distinguished history as a judge and a lawyer for the Mayo Clinic, but he was fairly new to the Supreme Court. He had never written a major decision for the Court before. And so I loved the idea of these two figures on parallel tracks, untested and maybe a little bit scared. So can you talk a little bit about the brief for Roe v. Wade. A big part of one episode is Sarah and Ron and then eventually Linda coming. They moved to the Women's Institute in Gramercy in New York. It's an irving place around seventeenth Street. The building is still there. I walk by it all the time. And the Women's Institute offered them space and interns to help them write the brief in the summer before the Supreme Court. So can you tell us a little bit about what court brief is, what sort of goes into it.

So the idea of the Spreme Corp. Brief is to present the argument in the most effective way. It has an introduction, it has a summary of argument, and then you want to say how the argument you're making is the logical extension of the Court's body of work that's come before, of the precedence, And the idea in Roe was to show how it grew naturally out of a case that had been decided less than ten years before, Griswold against Connecticut, which in nineteen sixty five the Court found there was a constitutional right for married couples to use birth control. Now this is in my lifetime. It's kind of astonishing that you know, in the lifetime of people who are walking around today and who still look get themselves out of bed, that birth control was illegal in the state of Connecticut, which is where we're now having to be recording this episode. So Griswolding is to get recognized a right to privacy growing out of the due process guarantee in the fourteenth Amendment, and had other stuff in it too, of course. So the idea was to say to the court, this is what you said not too many years ago, and here's the logical consequence. If you can have birth control because you don't want to bear a child, you have the right not to bear a child, as guaranteed by the Constitution. So that was the effort. And the kind of back story of the brief is that it was based on a low review article that had appeared not too long before in the Law Journal of the University of North Carolina by a young guy named Roy Lucas, and it had gotten a fair amount of play, and Roy Lucas had drafted part of the brief and there was a good deal of tension between him and Sarah and Linda as to who was going to get to argue. And Roy Lucas, who am I I knew, never let go of his anger that he had not been the one who argued.

Let's talk about this because this is part of the show. Also really is played by Luke Kirby in our show, Who's Lenny Bruce and the marveless Missus mays All just a fantastic actor, and he was a major player, if not the major player in abortion cases in the country at the time. And so what Sarah writes in her book is that really tried to steal the case away by writing a letter to the Supreme Court saying that he would be the one arguing the case. What are your sort of thoughts on that.

Well, I mean, he was deeply invested and he had done the work. And like a lot of creators, you launch something in the world and you lose control of it. So he got back into the game later. He had other abortion cases that he argued before the Supreme Court, but he missed the big one. Yeah, and was very bitter, and I think his bitterness about it overshadow the rest of his life.

Yeah. So going back to the Supreme Court once it's time for Harry to assemble a majority. As you said, he got a seven to two majority in the case, including warren Berger's vote. How does the justice go about assembling majority? I know is very important to Harry that this case be as close to unanimous as possible. How do you go about doing it?

Well, you've got to write a draft. And what happens is you get the assignment and it then falls you to write a draft, which you then circulate. And the Court has an odd locution. One justice will say, you have my join is usually a verb in the English language, but at the Spreme Court locution it's a noun. You have my join That means I'm going to sign your opinion. You've got me or can say you know, I'm with you part of the way. But I really not comfortable with Section X and i'd like to see that revised in such and such a way, and that kind of thing. The burden is on the justice who got the assignment, and it's a burden that sometimes that justice can't carry what's known as you can lose the court when you don't get five votes. So that was part of the challenge for Harry.

Yeah, Harry took the sort of unusual step, as my understanding and read his final decision alone from the bench to a room full of reporters. And that's dramatized in the show with Kitty Kurk playing one of the reporters talking about it outside the courthouse. Any idea why Harry chose to do this, to read the decision from the bench.

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

Please.

It was and we'll see if that is going to continue in the post pandemic world. We don't know yet. Very common, I mean expected for the justice who has the majority opinion to announce from the bench a summary of it, and that's called the handdown. It's handed down from the bench orally to the public. Now who's the public. There's maybe two hundred tourists or whatever sitting in the courtroom, and then there's a couple rows of press seats. Nobody knows when an opinion's coming down. So Roe came down in January. It wasn't one of these let's hold our breath for June, like with the Dobbs opinion that overturned Row. So just happened to come down in January. But what Harry did that was a little bit unusual was he wrote his hand down, not the full opinion. He wrote his hand down, which is just a few pages, and he circulated it in advance to the justices in the majority to get their feedback. And Burger came back and said, I think you should say we are not authorizing abortion on demand.

Wow.

And I saw in Blackman's papers, his draft of the handdown and Burger's response. And Blackman did not say that in his oral announcement. And that was clue as to where Berger was heading. Because what does abortion on demand mean? What does that phrase mean? We hear it, we don't hear about I want an appendectomy on demand, I want a nose job on demand. What does it means? The abortion on demand? It actually is a perversion of a feminist slogan. Before Roe, women were marching under banners that said we demand free twenty four hour childcare and free abortions. That means we want the right to become mothers and stay in the workplace. We want childcare, or on the other hand, we want the right not to become mothers if we don't want to become mothers. It was a two part thing, but the anti abortion crowd picked up the abortion on demand as a stand alone and a kind of an ugly phrase that made women who were seeking to change the abortion laws sounded very unappealing. Demanding anything sounds unappealing. What they were demanding was a constant titutional right. So for Burger to reflect that perversion of the language that I just described, I think tells us that although Harry had his join that Burger was not going to be reliable.

Interesting, and just to give a little bit more contacts the previous court from the Burger Court, the Warren Court. They were known for expanding rights with Gideon and Miranda and Brown v. Board. Now, with the Burger Court that had, as you said, three Nickson appointees at least three four four, what was the thinking, would the expansion of rights continue? Or I assume the thinking was the expansion of rights would end if not the restriction of rights.

I don't think they woke up in the morning and said, Okay, we're going to spend the next twenty years of our life restricting rights.

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

Oh yeah, I think with the Nixon appointees to the Burger Court, they Nixon ran against the Warren Court. In his nineteen sixty eight presidential campaign. He had all kinds of dog whistles order crime. Those were dog whistles for race. By nineteen sixty eight, you couldn't quite put yourself in the you know, segregation side of the street. So you use crime much as being used today. Very few things that are all that new under the sun. But yeah, the Nixon appointees on the court certainly thought the war In Court had gone too far and needed the court needed to be real back, which makes Roe stand as a kind of anomaly against some of the other things that happened during the Burger years. But in context, they didn't think they were advancing a feminist cause. For instance, they didn't think of abortion as a cause. They actually thought of abortion as it is, which is a medical procedure, full stop. And they were responding to not the cause of women on the streets. They couldn't hear those that didn't compute with them. They're responding to the fact that the American Medical Association, the American Public Health Association, the American Law Institute, which is an organization of very elite lawyers and judges and professors, all were calling for decriminalization of abortion.

The overturning of rov Wade came when I was near the end of writing the audio series. That's why I added the ending with Katie Kurk that we heard where she talks about how dangerous a political court is, a politicized court. I'm curious where you think Roe and the abortion fight goes from here.

It goes into electoral politics. I think we saw in the midterms in November where it goes, and it stopped the predicted red wave. It led to democratic governors and state legislatures being elected on the abortion issue. So it opened up a new framework for keeping this issue alive that it will be kept alive. So you must have taken a fair amount of creative license in the show.

So I tried to keep it as true to the historical record as I possibly could. The way I think about it a little bit is the way some of my heroes have talked about the way they adapt true stories. Aaron Sorkin, for instance, who wrote The Social Network and Steve Jobs and the recent Lucille Bald movie, he talks about when he takes a true story and dramatizes it, he thinks of it as a painting rather than a photograph. He's going to have his own interpretation, his own point of view, but it's still the story. David mammontt talks about how his job is not to document, his job is to persuade, and so I tried to do something similar. Just the fact that this show takes place over nine episodes instead of over four years means that I had to take some creative license. The only characters who are completely invented, I should say, are composites are Andrea Savage's character deb Margalise and Laura Bonanti's character b Cutress. Those are composites, and then when Sarah and Harry speak on the phone. I really wanted a moment where these two characters whose journeys we've been following on parallel tracks for so long, finally come together. And of course they do come together in the Supreme Court when Harry is raining questions down on her, But that didn't really give me the sort of intimate moment that I wanted. So I took a page from Peter Morgan's script that Ron Howard directed Frost Nixon, where Nixon has a middle of the night, drunken phone call with from Lost and that never happened. That was completely invented by Peter Morgan. So similarly, I have Sarah desperate to find out when the decision is finally going to come down and she can go on with her life, and so she calls the court to try to get any intel she can from whatever clerk answers the phone. And on this particular night when she calls, Harry is busy working on the decision, and he answers the phone and so he never reveals himself. So it's the kind of scene that could have happened, although it never did, and they have a very human conversation about fathers and daughters. They're sort of a spiritual father and daughter dynamic. Harry talks about his daughters and Sarah talks about her father, who's so brilliantly played by Josh Hamilton in the show Pretty Cool. This bonus episode of Supreme The Battle for Row is hosted by me Aaron Tracy. It's edited by Carl Catyl, music by Anna Stump and Hamilton. Like Houser, a big thank you to the Yelle Broadcast Studio and to Linda Greenhouse for offering her time and expertise. Supreme The Battle for Row is a nine part audio drama about the legal minds behind the historic Supreme Court decision Roe v.

Wade.

Listen on iHeartRadio, Apple Podcasts, or wherever you get your podcasts. Thanks for listening.

Supreme: The Battle for Roe

At 26 years old, Sarah Weddington stands in a courtroom for the first time in her life and argues th 
Social links
Follow podcast
Recent clips
Browse 11 clip(s)