Justice Blackmun and the "world out there." (US Supreme Court Justice Harry A. Blackmun)

• Author: Koh, Harold Hongju

Harry Blackmun fooled everyone. When Richard Nixon appointed him to the Supreme Court at age sixty-one, who would have predicted that this "safe" conservative would retire twenty-four years later - the year Nixon died - as the Court's last liberal?(1) Would anyone have guessed how sharply he would break from his "Minnesota Twin," Warren Burger, or brake the Burger Court's retreat from the Warren Court? Did any foresee that a member of so many majorities(2) would someday emerge as the Carolene Products(3) Justice of the Rehnquist Court: the spokesman for the have-nots, the excluded, the discrete and insular minorities?(4)

Why Blackmun changed has offered steady fare for pundits, but no longer presents a true puzzle. Part of the explanation, as the Justice himself noted, is that the Court itself listed rightward.(5) The Court he joined ranked among the most liberal in history, while the one he leaves surely stands among the most conservative.(6) In many areas, his jurisprudence remained strikingly consistent during his near-quarter century on the Court: the treatment of aliens,(7) women, Native Americans, and prisoners,(8) church-state relations and affirmative action,(9) just to name a few. In other areas - the right to privacy,(10) law and medicine,(11) retroactivity,(12) commercial speech,(13) and state taxation,(14) for example - Blackmun pioneered the Court's governing doctrine, and subsequently never wavered.

Even so, as Blackmun grew more comfortable on the Court, his voice undeniably grew bolder and more distinctive. Although his personality did not change, his sense of role evolved. When he first came to Washington in 1970, Blackmun seemed the classic insider. A professional lifetime spent at Harvard College and Law School, the elite Dorsey law firm of Minneapolis, the Mayo Clinic, and the Eighth Circuit had exposed him to healthy institutions and responsible professionals. The experience imbued him with an idealistic, almost naive, faith in government and institutions. In early opinions, he deferred easily to governmental authority and seemed out of touch with common problems."

But Blackmun took his job seriously and did his own work. The Court's sprawling docket exposed him to a broader, more brutal slice of life than he had ever known. The relentless cascade of arguments, briefs, prisoner petitions, death sentences, and daily mail - all of which he read - painted a less tranquil picture: an America of antagonistic classes, racial conflict, governmental errors, and intense personal suffering. From the Court, he wrote, "[o]ne sees what people ... are litigating about .... One gets a sense of their desires and their frustrations, of their hopes and their disappointments, of their profound personal concerns, and of what they regard as important and as crucial.... We see ... a constant, seething economic, domestic, and ethical struggle."(16) Cases like Roe v. Wade(17) and Furman v. Georgia(18) subjected him to "an excruciating agony of the spirit."(19) Roe, in particular, won him passionate admiration and vicious harassment. "Think of any name," he once recalled, "I've been called it ... : Butcher of Dachau, murderer, Pontius Pilate, Adolph Hitler."(20) In public places, he was picketed and embraced, threatened and celebrated, and once literally fired upon, in his own living room. These searing experiences taught him that Justices have no choice but to take sides, and to bear the consequences. He began to realize that all social institutions are not equally responsible, and that in the face of institutional abuse, well-meaning deference can amount to unconscionable abdication. By 1992, Blackmun saw the world in different tones. Asked what he had learned on the Supreme Court, he answered: "That feet today indeed are made of clay, and that there seems to be an element of larceny and of the unethical in so many people in public life; that life is or can be cruel; that man's inhumanity to man still prevails; that life itself is controversy; and that we still are a racist society deep down in the core of our being."(21)

Blackmun's awakening forced him to rethink his judicial role. Muted leitmotifs in his earlier thinking recurred and intensified. Asked at his 1970 confirmation hearing about his "views of the Supreme Court as the protector of our basic liberties," Blackmun answered: "[M]y record and the opinions that I have written ... will show, particularly in the civil rights area and in ... the treatment of little people, what I hope is a sensitivity to their problems."(22) Working amid the Court's sheltered splendor, surrounded by words and abstractions, Blackmun came to see "another world out there,"' that the Court "either chooses to ignore or fears to recognize."(23) In that world, he realized, antagonism and not altruism dominates. Lessons that Thurgood Marshall learned through bitter experience, Blackmun grasped through human empathy and sheer hard work. "[W]here a presumed majority ... punitively impresses upon a needy minority its own concepts of the socially desirable, the publicly acceptable, and the morally sound, with a touch of the devil-take-the-hindmost," he wrote in 1977, "[t]his is not the kind of thing for which our Constitution stands."(24) Judges, he began to argue, should construe the Constitution "as a force that would serve justice to all evenhandedly and, in so doing, ... better the lot of the poorest among us."(25) When interpreting grandly worded constitutional provisions, Blackmun insisted, the Court should "adopt a |sympathetic' reading, one which comports with the dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging."(26)

As Blackmun's sense of his judicial role crystallized, so too did his willingness to rethink old positions. "[I]n law," he wrote as a circuit judge, "there is constant movement. We should be aware of this, anticipate it, and not resent it."(27) "As times have changed," he testified at his Supreme Court confirmation hearing, "Justices have changed. People take a second look."(28) Relentlessly open-minded, during his tenure on the Court, Blackmun began to revisit old votes and to reexamine early views.

Federalism, separation of powers, and the death penalty were but three areas in which Blackmun took another look. After casting a tentative deciding vote for the majority's position in National League of Cities v. Usery,(29) Blackmun watched and reflected, then wrote the opinion that interred that decision in Garcia v. San Antonio Metropolitan Transit Authority.(30) Although he joined the Court's sweeping rejection of the legislative veto in INS v. Chadha,(31) the rigid logic of that decision's separation-of-powers reasoning gave him pause,(32) and ultimately led him to uphold the federal sentencing guidelines under a "flexible understanding of separation of powers" in Mistretta v. United States.(33) In his final term, after years of "vot[ing] to enforce the death penalty," while publicly "doubt[ing] its moral, social, and constitutional legitimacy," he found himself "morally and intellectually obligated simply to concede that the death penalty experiment has failed."(34) To be sure, in each of these areas, Blackmun changed. In each, however, his "second look" was the more probing and revealing. In...