International Law

Becoming Justice Blackmun in Support of Justice Sotomayor

By Daniel Del Gobbo

On the Eve of Confirmation

As of this writing, the full United States Senate has begun final deliberations on the nomination of Justice Sonia Sotomayor to become the first Hispanic and only third woman to serve on the U.S. Supreme Court. With a majority of senators already indicating their support, Justice Sotomayor?s appointment is all but assured, though that is very much despite some commentators? efforts to colour her as lacking judicial restraint and engaging personal prejudices in her decisions.

Previously reviewing Ellen Anderson?s Judging Bertha Wilson: Law as Large as Life helped inform my opinion that ?empathy? in adjudicators of rights, which Justice Sotomayor would seem to possess very amply, need not code for activism or more insidious forms of ?prejudice?, but simply responsiveness to social change.  I later argued that Justice Sotomayor?s most notoriously prejudicial comment, regarding one ?wise Latina woman,? is perfectly commensurate with sound judicial philosophy.

On the eve of her appointment, I am inspired to draw from another outstanding biography ? Becoming Justice Blackmun: Harry Blackmun?s Supreme Court Journey by Linda Greenhouse ? in articulating my closing arguments in support of the historic nominee. Harry Blackmun?s own ?becoming? on the high court, vividly illustrated by Greenhouse, produced several opinions that may be unequaled in their impact on contemporary social issues and policy, while reflecting a legal sensibility that seems similar to Justice Sotomayor?s own. It remains to be seen whether she reflects this sensibility after she is confirmed in coming days.

Introducing Justice Blackmun

Harry Blackmun would seem to transcend easy attempts at labeling ? the ?shy person?s justice?, ?Old Number Three?, the ?justice from Lake Wobegon?, the author of Roe v. Wade, No. 70-18. Each speaks to a defining aspect of Harry A. Blackmun?s tenure as an Associate Justice of the U.S. Supreme Court, though they cannot but do so in a whisper without Linda Greenhouse lending her clear and confident voice to Blackmun?s story. The result is a riveting and surprisingly readable account of the man and the inner workings of his U.S. Supreme Court.

Harry Blackmun ascended from Dayton?s Bluff Elementary in small-town Minnesota to Harvard Law School, working in a St. Paul firm as well as the Mayo Clinic before Warren E. Burger, a boyhood friend from Dayton?s Bluff and appellate court justice himself, lobbied for Blackmun?s appointment to the Eighth Circuit of Appeals. It was not long after that the two men, in an improbable circumstance, were both elevated to the U.S. Supreme Court, and with Burger as its Chief.

Blackmun’s Process of Becoming

A Relationship Breaks Down

Greenhouse recounts Blackmun?s personal trajectory with the aid of his private papers, which lay bare a personality dedicated in service and always motivated to excel, though occasionally self-doubting and unable to disregard perceived slights from other justices, especially Burger.

The latter is a primary focus of Greenhouse’s narrative. Indeed, the amity that the ?Minnesota Twins? enjoyed before their joint tenure, a period in which they were uncommonly close and considered by many, including Burger himself and the popular media, to be ideological doubles, contrasts starkly with the indifference and occasional acrimony between them during their tenure.

The most readily identifiable explanation for the justices? souring is Blackmun?s profound ideological change on the high court. During his first five terms with Burger, they voted together in 87.5 percent of closely divided cases, while during their final five terms, they did so in only 32.4 percent of cases. Many of those engaged social issues in which Blackmun and Burger were becoming increasingly emotionally invested, and less frequently on the same side.

Greenhouse does well to avoid a reductive attribution of the justices? conflict to Burger?s ?pompous? and ?insecure? leadership style, as other authors have done. Rather, she emphasizes that both justices had trouble dissociating their professional and personal relationships in the Supreme Court context. The justices? sixty-year history of mutual mentorship and collaboration would seem to have created expectations of one another that neither could fulfil. For example, Blackmun?s errant liberalism, so fundamentally at odds with the Chief?s own strict constructionist perspective, seemed to chafe at Burger?s romanticized vision of the two ?doing it together.? In turn, Burger?s frequent appeals that Blackmun reconsider his positions may have affected the hypersensitive junior justice unduly.

Personally, I am very thankful that Burger?s frequent appeals did not succeed, as I believe Justice Blackmun?s most persuasive opinions are those freed of formalist trappings and other unnecessary legal abstractions. As President Clinton said upon Blackmun?s retirement, ?the habits, procedures, and the language of the law can separate lawyers from the people who look to the bar for justice.? Blackmun, an unfailingly humble and endearingly quirky man, reveals in his decisions, and especially his later decisions, a close identification with the ordinary citizens most in need of his court?s protection. I would argue that with time, he became a more critical and humane justice.

The ?Improbable Icon?

His most famous and controversial decision evincing as much ? indeed, perhaps the most controversial in recent American jurisprudence ? actually came early in Blackmun?s tenure. That decision is, of course, Roe v. Wade, which reads the right to privacy into the 14th Amendment?s protection of ?liberty? and thereby decriminalizes abortion.

While Justice Blackmun was content in his 3rd term to focus his opinion on the rights of doctors rather than the rights of women, his views evolved and grew more impassioned over time. He staunchly defended Roe in subsequent appeals, and did so in increasingly direct and emotional language. For example, in his 22nd term Blackmun wrote for the tenuous 5-4 majority in Planned Parenthood v. Casey, No. 91-744, that,

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

What a remarkable admission from a sitting justice. Its painful appeal abandons any pretense of dispassionate neutrality, openly acknowledging that the idiosyncratic personalities of high court judges ? including his own, relayed in succinct and forceful prose ? may all but determine the state of the law in certain areas. Betraying extraordinary emotional investment, it is no surprise that Blackmun became, as Greenhouse terms it, the person American women looked to ?as a barometer for the status of abortion rights? and the entire women?s movement more generally.

The Capital Dissenter

Another area of law that Justice Blackmun is closely associated with is capital punishment, and about which his views similarly evolved during his tenure on the Supreme Court. While he wrote in his 2nd term to uphold death penalty statutes in Furman v. Georgia, No. 69-5003, his views on the subject softened with subsequent appeals until the practical and ethical concerns surrounding the penalty simply loomed too large. In his 23rd term, Blackmun drafted his ?death penalty dissent?, first appended to Callins v. Callins, No. 93-7054 and replicated in every capital appeal that followed.

In that dissent, Justice Blackmun explains how,

For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [...]  From this day forward, I no longer shall tinker with the machinery of death.

These are similarly remarkable admissions. Blackmun?s personal prejudices, though not directly acknowledged, are clearly discernible behind his constitutional argument, and reflect the justice?s rather pressing sense of regret that he defended the objectionable policy for so long.

Further, as Greenhouse so eloquently describes, it is not often that a man or woman of advanced age, in cloistered quarters, manages through the years to experience ?not a narrowing, but a broadening of mind, of outlook, and of spirit? with regard to these kinds of issues. And yet that is exactly what Harry Blackmun experienced.

A Recommendation for Justice Sotomayor

Upon reviewing Sonia Sotomayor?s confirmation hearings, an arduous process through which some senators would rather seek to impugn her past statements than be informed by sworn testimony, my confidence in her abilities, ?empathy?, and interpretative philosophy is affirmed. I very much look forward to her full Senate vote.

My enthusiasm knows but one caveat ? that is, in her confirmation hearings, I believe for political reasons the Justice felt compelled to ascribe to a model of judicial neutrality that denigrates the value of her unique social and cultural background as a ?wise Latina woman.?

I will not take this opportunity to reiterate my previous argument that Justice Sotomayor would do well to appreciate the ways that her background should enrich her perspective on many legal issues. Yet I feel compelled to recommend Linda Greenhouse?s captivating biography Becoming Justice Blackmun ? a remarkably human story about a man wavering in philosophy, yet possessing the courage and self-awareness to make his personal prejudices known to the public. He became one of America?s greatest judges, and so may Justice Sotomayor if she stays true to these qualities.

Full post as published by The Court on August 05, 2009 (boomark / email).