Constitutional equity.

• Author: Wedgwood, Ruth

Working with Justice Blackmun exposed some habits a New Yorker could learn to share. He loved politics, baseball, 8 a.m. breakfasts, afternoons in the library editing opinions with freshly sharpened pencils, and evenings at home with Dottie. He lingered over stories of his days at Harvard, as launch driver in the Harvard-Yale race, surprised to be invited to a yacht party for the winning crew, and as law student marveling at Felix Frankfurter's cadenzas in the classroom.

Justice Blackmun ran a friendly chambers on the south side of the Supreme Court building, between those of Justices Powell and Douglas, smiling as a messenger cooked fragrant Thai food on a hot plate in the clerks' room, tolerant as we smuggled friends into the Court to play ball in the upstairs gym. He was intellectually generous to his clerks, complimenting us on memos or drafts, treating our arguments as serious offerings, arriving back from the Court's conference each week to share how the votes had gone. But he also kept his own counsel. In the Bakke case,(1) where the future of educational affirmative action programs was at stake, the Justice arrived at breakfast one spring morning and announced that he hoped we would not be too disappointed by his decision to reverse.

He was amused at the politics of the Court, announcing from time to time that he was "in the doghouse" with the Chief, who had assigned him some uplifting opinion to write, enjoying even as he understood his courtship by Justice Brennan. He did not like going head to head in verbal jousts with his colleagues, and didn't mask his personal engagement in his opinions. He was unstudied, a New Yorker might say, but really he was so much more.

Justice Blackmun was a son of the Middle West, and an early claim in our constitutional history and culture is that the West has something distinct to say. The astonishing fertility of the land asks a fertility of mind. The intricate remedies of English and coastal common law might suit professional and monied men, but not plain people who farm or work as mechanics. Books of Law French or Law English were unavailable in a new country, and tangent to its problems. The rigor of inherited law was to be limited by a natural equity, adapting it to America's more generous situation.

An early Kentucky writer captured something of this. To codify American law is an impossible task, said Charles Humphreys to the Kentucky Institute in 1824. A new Justinian would have to "go in person from state to state to inform himself,(2) of the spirit of the new jurisprudence, and by the time he had come round, it would have changed again. The creative task for American lawyers and judges was to cobble a republican law from precedent, political theory, the Enlightenment's law of nature and...