justice blackmun's papers were released today, on the fifth anniversary of his death, as he had directed. what an astounding packrat! the nyt story notes that the papers are contained in over 1,500 boxes. as always, i'm very moved by blackmun's leftward progress during his years on the supreme court. somewhat differently, it is also rather moving to find tidbits of the real lives of the justices: notes passed during oral argument documenting everything from world news to baseball scores; blackmun's personal anguish over death penalty cases; letters outlining the decline of his friendship with warren burger.

blackmun is the person who, having dissented from the court's original death penalty abolition in 1972, thinking it a matter for legislatures rather than courts, later repented: in callins v. collins, he outlined the multitude of ways in which the death penalty evades fairness and concluded, "i no longer shall tinker with the machinery of death."

and roe. as much as i admire justice blackmun, it seems increasingly clear that the legality of abortion is not really a privacy issue. i don't agree with catherine mackinnon on much of anything, but cutting through the hyperbole, i've always thought her largely correct in her criticisms of roe. namely, that by placing abortion rights in a strictly private sphere, the decision casts reproductive choice as a convenience to men and a negative, rather than an affirmative, right. because abortion is a private choice, the government may only interfere to a certain extent, but it need not in any way facilitate that choice. in general, the protection of "privacy" seems less worthy than the protection of equality when weighed against a potential life. this, i think, is what has allowed roe's steady erosion even as it is nominally upheld.

the article doesn't mention, and i don't know, whether blackmun considered an equal protection foundation for roe, or whether such an opinion could have garnered any support among other justices. at this point, the question is whether similar substantive results can be re-established on different theoretical grounds. i hope they can be, and soon, because whichever way you look at it, the bare majority of pro-choice justices is dwindling, and the right is busy consolidating its power in the political process which, like it or not, emphatically does include the judiciary. it is frightening to consider the return of days when women shouldered the entire risk and burden of sexual freedom, weighing all their independence and ambition against the conduct of their relationships. sadly, whatever rhetoric anti-choicers may use about "life" and the sanctity thereof, it is ever more clear that such a time is exactly what these people have in mind.