The recently completed Supreme Court term was marked by "impatience" and "short temper" and was "the most difficult of the 16 I have been privileged to serve on," Justice Harry A. Blackmun said today.
"The divisiveness of the court has grown, as we are getting older," he said, adding that "when one gets cases about abortion and sodomy in the home, the patience gets thin indeed."
"I think the center held generally this year," he said, "but it bled a lot. It needs more troops; where it's going to get them I don't know."
Blackmun's remarks were part of a review of the high court's work that he gives annually to judges of the 8th U.S. Circuit Court of Appeals, of which he was a member before being appointed to the high court by President Richard M. Nixon in 1970. Over the years, his reviews have acquired a reputation for openness about the court's workings that is unusual among Supreme Court justices.
The court's decision upholding the right of police to arrest people in their homes for certain homosexual acts came in for particular criticism. The 5-to-4 decision, from which Blackmun dissented, was "outrageous" and part of a trend toward "moralistic overtones" in the court's decisions, he said.
Ordinarily, Blackmun said, the justices use their summer recess to cool tempers that rose during the preceding session. Justice William H. Rehnquist, Blackmun said, has remarked that the court's private conference each September is the best, because "we're all good friends before we start brawling again."
This past year, however, "that did not happen," Blackmun said. "We took up right where we left off in July."
The "trigger" for the court's early fight, Blackmun said, was the case of Florida death row inmate Willie Jasper Darden, who had asked the court to give him a new trial on grounds that the district attorney in his murder case had violated the rules governing a prosecutor's conduct.
The high court split sharply and bitterly over Darden's case, ruling 5 to 4 that although the prosecutor's actions were wrong, the death sentence could be carried out. "If ever a man received an unfair trial, Darden did," Blackmun said. "He may be guilty, I don't know, but he got a runaround in that courtroom."
Blackmun said Chief Justice Warren E. Burger "exacerbated" the court's ill feelings on the Darden case by repeatedly writing about how often other judges already had considered Darden's claims. Burger wrote several times that 95 judges had reviewed Darden's case, Blackmun said, adding, "I was interested to see I was counted four times."
"The brooding overtones of the death penalty affected the court" all year, Blackmun said, citing repeated late-night votes on last-minute pleas to hold off executions. "Out of that comes a hardening of attitudes," he said.
The justice referred repeatedly to his age, 77, and those of his colleagues, saying, "I'm more tired than I think I've ever been at the end of a term." In the past Blackmun repeatedly said that he does not intend to resign, and he gave no indication of any change in that position.
Yet as if to underscore the issue of age and health, a second justice from the court's liberal wing, Thurgood Marshall, 78, had to cancel an appearance before the judges here. Doctors forbade him to travel because of a recurring bronchial infection, Blackmun said.
Blackmun said he could not make any guesses about the changes that President Reagan's nominee, Judge Antonin Scalia, might bring about as a member of the court or about the impact of Rehnquist's proposed elevation to chief justice.
The main question about Rehnquist, he said, is how the new chief justice would use his power of deciding which justice writes the court's opinion -- whether he will "move to the center in an attempt to put together" a majority.
Of Scalia he said, "I'm told he is most dangerous when he is most ingratiating, that he has a great ability to persuade one to his point of view. We'll see."