On November 4, 1992, the U.S. Supreme Court heard oral arguments in Bath Iron Works v. Workers’ Compensation Programs.1 As attorneys presented their arguments, Justice Harry A. Blackmun, like the entire nation, had a lot on his mind because the night before William Jefferson Clinton had been elected the first Democratic President in twelve years. While the political implications of the Clinton victory would be undoubtedly vast, Blackmun was more concerned with how it would affect him personally. It was just days until Blackmun's eighty-fourth birthday, and it suddenly seemed viable for him to depart and allow the new President to make a politically and ideologically suitable replacement. Thus, while Blackmun took his (usual) notes on Christopher Wright's arguments for the federal government, Blackmun's mind, and his pencil, wandered to how his life might quickly change. Writing in his characteristic green pencil, he mused about the implications of the election, “What do I do now. [R]etire at once, 6/30/93, 6/30/94.” He added, perhaps nostalgically, “33 years ago today, I went on the fed bench! Seems like yesterday. What a privileged experience!” We know what was going on in Blackmun's mind that day only because he was a habitual note-taker. In fact, as he did in Bath Iron Works, in almost every case Blackmun took copious notes about what transpired during oral arguments. As Linda Greenhouse wrote in Becoming Justice Blackmun, he seemed to keep these notes out of “an impulse to order [his] world … It was a deep impulse that reappeared throughout his long life.”2 While his notes (written with a traditional gray graphite pencil) focused mainly on the substance of the arguments,3 Blackmun also wrote in green pencil to indicate comments outside of the legal and policy substance of the arguments themselves, including his musings about politics, personal life, and a plethora of other thoughts that occurred to him while the attorneys argued their cases. Blackmun's oral argument notes continue to be a treasure trove for scholars,4 Court watchers,5 and interested citizens.6 However, his “green notes,” the name we have given to these more personal reflections, have been paid far less attention. Our goal is to provide a better understanding of them while also providing readers with insights about the gray notes. Both are of particular interest for several reasons. First, they offer a rare glimpse of the world through the eyes of a Justice who sat on the Court through some of its (and the nation's) most interesting and tumultuous years of the late twentieth century. Indeed, Blackmun's personal insights are one of the only opportunities scholars have ever had to peek into the mind of a U.S. Supreme Court Justice and, as such, they open the Court in a way our least publicly observable institution has not yet been open. Second, these notes add to our understanding of how Justices reach decisions. For decades, scholars have used Court outcomes (who wins, who loses, and why) to infer the factors that influence Justices’ decisions, particularly their motives that are the quintessential black box of the decision-making processes. In a sense, then, Blackmun's notes allow us to open that box to explore his motivations. Third, the notes add a dimension to scholarly understanding of the Court in a way that even most historians cannot provide because these insights come, quite literally, from Blackmun's own hand as he watched law, politics, and history develop around him over the nearly quarter century he sat on the bench. In the crux of the article we utilize Blackmun's oral argument notes to elucidate how he viewed the courtroom proceedings unfolding in front of him, including his assessment of the attorneys who appeared before the Court and his insights about his colleagues’ behavior. We first explore his graphite notes (although sometimes his green notes as well) to better understand Blackmun's assessment of the arguments presented to the Court; we do so to determine whether these arguments were persuasive to him and his colleagues and to detail how he thought his colleagues would decide each case. From there, we turn more specifically to what Blackmun's green notes teach us about the Court's oral arguments, its inner workings, the dynamics between the Justices on the Burger and Rehnquist Courts, and American cultural and political history.7 Finally, we utilize Blackmun's notes as evidence that the Justices, while certainly the top legal minds in the nation, are not particularly different from typical U.S. citizens. For instance, while listening to arguments, Blackmun sometimes thought about his favorite baseball team (the Minnesota Twins), entertained himself and his colleagues by playing games on his note paper, and reflected about his health and impending retirement. These are insights we believe serve to humanize Blackmun and his colleagues in an important way. Indeed, law is made by actual humans who possess fears, concerns, hobbies, and interests. Blackmun's notes therefore help us understand the human side of the Marble Palace. Before completing these related analyses, however, we begin by highlighting the general historical period during which Blackmun built his legacy, from the history he lived through beyond the Court to the transformations he witnessed within the wall of the nation's highest court. While Justice Blackmun will always be remembered for his abortion jurisprudence,8 he has left a much less appreciated legacy as a keen observer and record taker. His archival papers, publicly available at the Library of Congress, provide a wealth of insight into life, law, and the inner workings of the U.S. Supreme Court.9 For more than fifteen years, now, they have been an invaluable source of data and information that have enriched how political scientists, legal scholars, and historians understand the inner workings of the Court. Our goal in this section is not to provide a comprehensive recap of Blackmun's life but, rather, to highlight the extraordinary events that took place within and outside the Court during his twenty-four years on the bench. Blackmun's tenure from 1970 to 1994 was a time of great international tumult for the United States. He joined the bench several years before the end of the Vietnam War and stayed long enough to witness the first Persian Gulf War. He also had a front row seat to the end of the Cold War and ultimate downfall of the U.S.S.R. Thus, his years on the bench were a time of important and transformative foreign policy for the United States. Domestically, Blackmun sat on the High Court through six presidential elections, including the reelection of the President who appointed him and the election of the President who would ultimately replace him. In addition, he watched as scandal led to the resignation of Vice President Spiro Agnew and as Watergate led to the resignation of several Attorneys General and ultimately to the downfall of President Richard Nixon. Closer to his own bailiwick, Blackmun was front and center for two of the most hotly contested Supreme Court nomination battles in U.S. history: those of Judge Robert Bork and Justice Clarence Thomas. Inside the Marble Palace, Blackmun observed a number of historically significant developments in the law, transformations of personnel on the bench, and changes in relationships among his colleagues. His tenure covered major jurisprudential developments on a host of landmark issues including reproductive rights,10 gender and racial equality,11 the free exercise and establishment of religion,12 the reinterpretation of the Court's long-standing obscenity standard,13 campaign finance,14 and the death penalty.15 Beyond legal changes, Blackmun witnessed considerable ideological transformation on the bench and he often took notes about these dramatic shifts. During his first five terms, he watched the retirements of Justices Hugo L. Black and William O. Douglas, the final remaining New Deal appointees of President Franklin D. Roosevelt. As Douglas and Blackmun sat together in the Courtroom during their final day as colleagues and for Douglas’s final oral argument, Blackmun wrote, “WOD retires today.”16 He then added, “My last day on this seat,”17 meaning that he would be moving to a new seat closer to the center of the bench because more senior Justices sit nearer the center while new Justices sit nearer the wings.18 Harry Blackmun ate lunch with Hugo Black (facing backward) on a sunny day in the courtyard at the Supreme Court shortly before the Alabama Justice stepped down from the bench. When a colleague retired, Blackmun carefully jotted down the event in his notes. After Black and Douglas retired, only two of the Court's stalwart liberals remained, Justices William J. Brennan and Thurgood Marshall. Blackmun also remarked when Douglas’s replacement, John Paul Stevens, joined the bench. As he sat for Stevens’s first argument just two months after Douglas’s departure on January 12, 1976, Blackmun wrote, “January 1976 Session. JPS #1.”19 This nomination was particularly important because, while a Republican President (Gerald Ford) nominated Stevens, Stevens, like Blackmun, moved well to the ideological left during his long tenure on the bench.20 Maybe more important than Stevens’s nomination was President Reagan's first nomination just six years later. In 1981, Blackmun watched as the first woman, Justice Sandra Day O'Connor, donned the black robe. Oddly, despite Blackmun's penchant for noting historically significant events, he made no mention of O'Connor's ascension to the bench.21 Two days later, however, he did note that she was missing at arguments.22 While he may have missed recording O'Connor's first argument, toward the end of her first term, Blackmun made a prophetic notation about his newest colleague, predicting in Union Labor Life Insurance Company v. Pireno23 that, “This case may well depend on SOC's vote.” Of course, as is now clear, many cases depended on how she decided.24 While the ascension of Stevens and O'Connor did not fully signify a shift of the Court's ideological makeup, the movement toward a more conservative bench took its most obvious turn when Chief Justice Warren Burger made it clear that he was retiring after the 1985 term. His decision became official on September 26, 1986 when the Senate confirmed William H. Rehnquist as the new Chief Justice. Ten days later, on the first Monday of October, Blackmun kept record of the change, “OT 1986 WHR, CJ.”25 At the same time, perhaps the most conservative Justice to date—Antonin Scalia—joined the Court in the seat left vacant when Reagan elevated Rehnquist to Chief. Again, Blackmun did not mention Scalia's first day but, as with O'Connor, he noted the first time Scalia missed an argument, writing in Meese v. Keene,26 “AS out.” Two years later, Justice Anthony Kennedy became Reagan's fourth appointee to the Court after Justice Lewis Powell retired. It was clear from the very beginning that Blackmun had a special relationship with Kennedy. What he and Blackmun had in common was ostensibly being the third choice of the appointing President. In fact, Blackmun often called himself “old number three” and then suggested to Kennedy—upon his arrival to the Court—that they were both “number 3's.”27 Again, Blackmun did not make specific note of Kennedy's first argument but did write “AK is quiet” during proceedings on February 22, 1988.28 The transition to perhaps the most ideologically conservative Court in U.S. history was complete with the confirmation of Justice Thomas in the fall of 1991. Thomas took the bench for the first time on November 4 and this time Blackmun noted the arrival of his new colleague. In his shorthand he wrote, “CT first on bench.”29 During the second case that day, beginning at 11:05 A.M., Blackmun also noticed what would soon become conventional wisdom about Thomas. Specifically, he noticed, “No? yet from CT?”30 Of course, neither Blackmun nor anyone else would predict that Thomas would only ask twelve questions in the time they sat with each other or that, up until this point, he would ask a total of just thirty-three questions (1991–2019). Now, a quarter-century after his departure from the bench, we take a closer look at Blackmun's oral argument notes that show how, amid these historic events and Court transformations, Blackmun assessed what transpired during these proceedings. We begin, in the next section, by analyzing how Blackmun assessed the attorneys who appeared at the nation's highest court. Before entering into private practice and ultimately ascending to the federal bench, Blackmun was an adjunct professor at St. Paul College of Law (now Mitchell Hamline School of Law) and for a time at the University of Minnesota Law School.31 Perhaps this early career teaching experience stuck with Blackmun when he joined the Court because he certainly acted like a professor in one respect: he regularly evaluated the oral arguments presented by each attorney. These grades provide insights into a number of fascinating questions, such as the criteria Blackmun used for his grades, whether these grades indicate who provided better arguments in a case, whether the grades indicate who would win, whether famous attorneys earned higher grades than their less experienced counterparts, and who earned the best and worst grades. Initially, it is important to gain a sense of how, and on what basis, Blackmun graded counsel. Throughout many Court terms, the grades themselves changed as he employed three different scales: A–F from 1970 to 1974; 1–100 from 1975 to 1977; and 0–8 from 1978 to 1993.32 Ninety-five percent of Blackmun's notes discuss the substantive legal and policy arguments made by counsel, while only five percent focus on presentation style or on the Justice's personal views of the attorneys.33 Blackmun was not simply giving grades because he liked or disliked a particular attorney making the argument or because he agreed with the ideological rationale of an argument. Rather, the correlation between his notes and the final grades makes it relatively clear he was grading the substantive arguments presented. Blackmun's own notes support our claim. Consider what he wrote of former Solicitor General, Kenneth Starr, “What a Boy Scout goodie-goodie.”34 While this comment indicates Blackmun may not have thought much of him personally, Starr still earned a relatively high grade of 6 on the eight-point scale.35 Blackmun also did not let his subjective evaluations of the attorneys’ descriptive characteristics influence his grading. Although he described Vernon Teofan as “plump” and “loud”36 and Archibald Cox as “hoarse” and “deaf,”37 both received 6s. In short, Blackmun seems to have been genuinely interested in determining whether an attorney presented a good argument, even if he wrote less-than-flattering personal notes about them. Further, as a supplement to his grades, Blackmun often commented about the strength or weakness of each attorney's specific arguments. For example, in Florida Department of State v. Treasure Salvors,38 he wrote ten substantive comments about the argument by respondent's attorney Paul Horan, who earned a 6, and then noted, “He makes t most with a thin, tough, case.”39 Similarly, in First National Maintenance Corp. v. NLRB,40 Blackmun indicated of Norton J. Come, the petitioner's attorney, who was assigned only a 5, “The argument has persuaded me to reverse.”41 While the preceding analysis focuses on good grades attorneys earned, at times he also offered harsher evaluations. Of Nebraska Assistant Attorney General Terry R. Schaaf's argument in Murphy v. Hunt,42 he noted “very confusing talk about Nebraska's bail statutes.” Schaaf then earned a grade of 4. Cal Johnson Potter III's argument in Godinez v. Moran43 received a 1.5, with Blackmun claiming it to be “one of the worst arguments” he had ever heard. Arthur Joel Berger, Assistant Attorney General of Florida, earned a 65 out of 100 for his argument in Maness v. Wainwright,44 with Blackmun noting, “This guy for me is a bust.” It was one thing for Blackmun to have graded the arguments presented to the Court. The important question is to what end did he do so. Did his grades assess who was the better attorney during argument and does being the better attorney equate with winning a case? The answer to both queries is yes; Blackmun's oral argument grades correlate highly with Justices’ final votes on the merits. Examining the votes of all Justices who sat with Blackmun, Johnson, and his colleagues demonstrates that a Justice who is ideologically predisposed to vote against the petitioner has a 32.2 percent chance of supporting the petitioner when the respondent attorney presents oral advocacy that in Blackmun's estimation is considerably better than the petitioner's argument. By contrast, the likelihood of voting for the petitioner's position increases to 47.6 percent when the same Justice encounters a petitioner who outmatches the respondent's attorney at oral arguments.45 It is important to note that Johnson and his colleagues analyzed the votes of all the Justices who sat on the Court with Blackmun—rather than just Blackmun's own votes. In short, Blackmun's colleagues were picking up the same sense of attorney quality or lack thereof that Blackmun noted privately. The magnitude of the effect of oral advocacy is even more pronounced for justices who are ideologically supportive of an attorney with the stronger oral argument. A justice who favors the petitioner ideologically in a case in which the respondent offers better arguments has a 64.4 percent chance of voting for the petitioner but, when the petitioner provides better oral arguments, this increases to 85.2 percent.46 The bottom line is that, just as he did when grading his law students, decades before joining the bench, Blackmun had a good eye for arguments. Blackmun's copious oral argument notes certainly indicate he was a very good listener and that he knew well the attorneys’ positions in each case he heard. Thus, it is no wonder the students sometimes persuaded the teacher to change his mind about a case. While our focus is on Blackmun, the persuasiveness of oral arguments is not limited to him, as other justices have been quite clear that they sometimes changed how they viewed a case after argument. Indeed, Rehnquist once wrote that, “In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came on the bench.”47 Systematically, one recent study reveals that Blackmun actually changed his votes in some cases based on the arguments counsel presented,48 doing so just over ten percent of the time. That he switched at all suggests that attorneys can, and sometimes do, utilize their thirty minutes to persuade justices to change their positions. Blackmun's notes provide specific instances of how he was persuaded by counsel's arguments. For example, during respondent's argument in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co.,49 he wrote, “I was on board here B/4 argument but now definitely lean toward +.”50 Even when he was “on board” in a case, sometimes argument helped him rethink his position. In a 1983 term case, the argument by respondent's attorney led Blackmun to write, “I am shifting my view.”51 Likewise, in Ford Motor Co.,52 he wrote, “I think I have turned around on this case, at least in part.” At other times Blackmun seemed to have been fully persuaded to change his vote. Consider First National Maintenance Corp. v. NLRB, where he wrote, “The argument has persuaded me to +.” Again, during the 1989 term Blackmun indicates that then Assistant Solicitor General John Roberts may have persuaded him to change his view of the case. During Roberts’s rebuttal he noted, “Am I turned around in this case?”53 Similarly, during Fuentes v. Shevin,54 Blackmun penned that, “He persuades me but will he persuade all the others?” While Blackmun was probably familiar with many attorneys who argued before the Court, he could not have known them all—even those whom scholars might consider relatively famous. His notes, then, indicate that he had ways to remember who argued. Specifically, he wrote down characteristics of the attorneys including his (possible) estimates about their age and what they looked like at the rostrum. As with the other aspects of his notes, Blackmun was nothing if not meticulous in this area. Each description was made on the right-hand side of his lined paper and always appeared on the same lines as he wrote counsel's name, the time each argument began, and the grade he had assigned. These descriptors are exemplified in a single line about James Strain in CTS v. Dynamics Corp.:55 “young, beard, 42, dull, Hastings, WHR Clerk like Jim Brudney.”56 Physical cues were particularly important to Blackmun. For instance, he described attorney Frank Whalen, who argued in Sarno v. Illinois Crime Commission,57 as “gravel voice, frowny, widow's peak, sclerotic.” Martin Wald, who argued Firestone Tire Co. v. Bruch,58 was “short, grey, glasses, 54, blunt.” In contrast, Robert Fishell, arguing for the petitioner in Owen v. Owen,59 was “large, soft spoken … Pretty dull, slow.” Blackmun even notated the appearance of attorneys with whom he was clearly familiar. He described the outfit of future Justice Ruth Bader Ginsburg in Califano v. Goldfarb,60 even though it was not her first case before the Court, “in red and red ribbon today.” Possibly the most important information for Blackmun was attorneys’ experience. In fact, his notations often focused on where attorneys attended law school, whether they clerked for the Court earlier in their career, or how they practiced law. These factors parallel research that suggests such factors may have an impact on who is likely to win a case.61 Consider, first, where attorneys attended law school. In Firestone, Blackmun remarked that petitioner attorney Wald attended “Chicago.” Other times he used his prototypical shorthand when mentioning law schools. Thus, while Kathi Drew argued for the state of Texas in Texas v. Johnson,62 Blackmun noted she was from “SMU.”63 In McCarthy v. Bronson,64 he indicated Christopher Cerf was from “Colum.”65 In Reed v. United Transportation Union,66 he pointed out that John Gresham was from BU (Boston University) and in Northwest Central Pipeline Corp. v. State Corp. Commission of Kansas,67 Blackmun noted that Harold Talisman was from OSU (The Ohio State University). In other cases, he wrote that Nina Kraut was from “Vt” (presumably Vermont), even though she actually attended law school in the neighboring state of New Hampshire. Similarly, he noted that Rex E. Lee and Chris Hansen attended “Chicago,” David Soloway went to “Emory,” and Raymond K. LaJeunesse, Jr. attended “W & Lee” (Washington and Lee University). Beyond where they obtained law degrees, Blackmun also categorized attorneys based on whether (and where) they taught law. In Milton v. Wainwright,68 he wrote that Neil Rutledge was a “Duke Prof” and “(son of Wiley?).” In Buckley, Ralph K. Winter was a “Yale prof” and in White v. Weiser,69 Charles L. Black was a “Yale professor.” During other arguments, Blackmun wrote that Lewis B. Kaden was a “Colum prof,”70 Vivian Berger was a “Columbia prof,”71 and Gerald López was a “Stan prof.”72 He also noted professors without mentioning specific institutions, as he did with William Burnham, Edwin Bradley, George Colvin Cochran, Barry Nakell, and Archibald Cox. Finally, whether an attorney clerked at the Court signaled experience to Blackmun. Thus, in Firestone he wrote that Mr. Sullivan was a “TM clerk.” Interestingly, Blackmun initially noted when Christopher Cerf argued Carella v. California73 in 1989 that he was a “CJ clerk,” but there was a problem. Cerf never clerked for Rehnquist. However, when Cerf argued McCarthy in 1991, Blackmun properly identified that he had been an “SOC clerk.”74 During arguments in the landmark Buckley v. Valeo, Ralph Winter, Jr. was a “former TM Clerk.” In CTS v. Dynamics Corp., James Strain “was a WHR clerk like Jim Burway.” Marsha Berzon in International Union v. Johnson Controls75 was a “former WJB Clerk.”76 It is interesting that Blackmun was so attuned to these details because research suggests the grades we discuss above are based on the quality of the attorneys who appear before the Court. Thus, attorneys who were former clerks or who taught at elite law schools were more likely to make winning arguments to the Court.77 Combining this insight with cues in Blackmun's notations, it is intuitive that he would remember those who made the best (or sometimes the worst) arguments. Blackmun also spent much time listening to, and making notes about, his colleagues’ actions, interactions, questions, comments, and general oral argument behavior. In this section, we analyze how he responded to his colleagues’ behavior and what such behavior taught him about how a case may be decided. Initially, we note that during Blackmun's tenure on the bench, there was a relatively major change in how Justices acted during oral arguments. There was a massive increase in the number of times Justices spoke during the mid-1970s, followed by a clear decline through the early 1980s (See Fig. 2). In particular, during the 1979 term each Justice spoke on average about twenty times per argument session; this decreased to twelve times per session in 1985. In addition, contrary to the conventional wisdom that Justices began to speak much more once Justice Antonin Scalia joined the bench in 1986, the increase happened prior to his ascension to the bench, with the Justices speaking more throughout the decade before Scalia's appointment. The substantial increase in the number of times Justices spoke while Blackmun was on the bench changed the dynamic of how they interacted with one another.78 While scholars debate how such prolific questioning affects case outcomes, Blackmun's own notes suggest he was often annoyed by his colleagues’ behavior. Perhaps he would have preferred a return to the Marshall Court era (1801–1835), when attorneys were more likely to orate before the Court rather than engage in a fast-paced debate with the Justices.79 We know this because Blackmun frequently commented on how often or how little his colleagues spoke, occasionally even tallying their number of turns. For instance, in Harris v. Forklift Systems,80 he counted the questions asked by three of his colleagues whom he often thought asked too many questions: Justices Ginsburg, Scalia, and Souter.81 The upper right-hand corner of Figure 3 shows that these three colleagues spoke often during the proceedings: Ginsburg twenty-seven times, Scalia twenty times, and Souter eight times. However, these notes do not tell the full story of the day Harris was argued. During the October 13, 1993, session, Blackmun kept an additional tally of how often his colleagues spoke across both cases argued that day.82 In this note, Ginsburg, Scalia, and Souter spoke twenty-seven, fifteen, and eleven times, respectively. In the second case, Landgraf v. Usi Film Products,83 they spoke twenty-one, eighteen, and seven times, respectively. In short, Blackmun often kept track of those colleagues he viewed as “going over the line” in speaking most often. As his tenure wore on, Blackmun became increasingly annoyed at the number of questions asked by some of his colleagues. Consider the last years he spent on the bench, from 1986 to 1994. In the October 1986 term, the Court heard arguments in a highly salient establishment clause case, Edwards v. Aguillard.84 During Jay Topkis’s argument for Aguillard, Blackmun noted that “He jumps on AS—good!” Making clearer that Blackmun may have been less upset with Scalia's view of the case than with his verbosity is the fact that the next sentence says, “Why ds AS n shut up?” Of course, while Blackmun often showed disdain for Scalia's verbosity, Scalia was not the only colleague about whom Blackmun complained. In United States v. R.L.C.,85 Blackmun wrote that “CJ mentions JPS and AS are talking too much.”86 Not only was he often annoyed by his colleagues’ loquaciousness, he was also sometimes unhappy when questions were asked. At the outset of the petitioner's argument in Davis v. U.S.,87 Blackmun noted that “As usual, SOC has the first [question].”88 The key is that Blackmun was quite sensitive about his colleagues’ behavior during oral argument. While this may not, in itself, be interesting, there is evidence that the number of times Justices speak affects case outcomes.89 As a result, Blackmun's knowledge of who was asking how many questions, and to which side, probably helped him determine who would win the case. This is also evidenced by the fact that he also noted the frequency with which his colleagues posed hostile questions to the attorneys. Because Blackmun was unhappy with the verbosity of some of his colleagues, what about his relationship with the Justice who is most famous for not speaking during oral arguments? Late in his career Blackmun formed an ideologically improbable relationship with Justice Thomas. Perhaps an early reason was that Thomas shared his view of questions from the bench, or lack thereof.90 Indeed, Thomas is notorious for asking almost no questions, and he actually went more than a decade without asking a substantive question of the attorneys.91 This is not much different from how he acted when he joined the Court, when he asked so few questions during his time with Blackmun (eleven questions in three full terms) that Blackmun kept track of almost every time Thomas spoke. Interestingly, it took almost two full weeks for Thomas to first speak and, when he did so, Blackmun reacted by writing, in Collins v. Harker Heights Texas,92 “T as