Volume 26, Issue 1
Volume 26, Number 1 Fall 1998
Symposium on Justice Blackmun
ARTICLES
Foreword
Justice Harry A. Blackmun: The Model Judge
By Judge Karen Nelson Moore
Justice Harry A. Blackmun and the Responsibility of Judging
By Judge Diane P. Wood
The Author of Roe
By Radhika Rao
In her commentary, Professor Radhika Rao focuses upon Justice Blackmun’s landmark opinion in Roe v. Wade, exploring the ways in which the Justice shaped and was in turn shaped by the abortion conflict. After describing Roe, she sets forth and responds to a wide range of criticisms of the decision. She then turns her attention to several other abortion and privacy cases, drawing some general insights into Justice Blackmun’s jurisprudence. She highlights Justice Blackmun’s concern for factual context and his compassion for the real people behind the cases he decided. Professor Rao connects these qualities with Justice Blackmun’s opinion in Roe, suggesting that his empathy for the oppressed stemmed in part form his longstanding association with the abortion issue, an issue which heightened his awareness of the plight of women, particularly poor, minority, and under-aged women. Professor Rao concludes that, while Justice Blackmun defined the boundaries of abortion law in Roe, Roe also played a critical role in defining him and in driving many other areas of his jurisprudence.
Justice Blackmun and the Good Physician: Patients, Populations, and the Practice of Medicine
By Ann Alpers
Justice Blackmun made unique contributions to law and medicine. In particular, he had a vision of the relationship between doctors and patients that respected both the professional integrity of the physician and the autonomy of the patient. Examination of several of Justice Blackmun’s opinions yields a nuanced view of the complex ties between professional care givers and the patients whom they serve. In particular, the Justice valued maintaining the confidentiality of medical information, respecting the role played by allied health professionals in providing comprehensive care to patients, and ensuring that patients gave informed consent to medical care. Most important, Justice Blackmun saw the patient as a whole person rather than as an assortment of disease processes.
Justice Blackmun’s sense of the individuality of patients and his compassion for those who had limited access to care gave him a powerful vision of the relationship between patients and physicians. His appreciation for the complexities of modern medicine was even more complete because his understanding of quantitative data gave him an unusual appreciation for the physician’s obligation to tailor medicine to public health ends. The Justice’s empirical jurisprudence, as evidenced in his opinions in Barefoot v. Estelle and McClesky v. Kemp, demonstrates an ease with statistics and an understanding of the principles that govern the practices of evidence-based medicine and epidemiology.
Justice Blackmun’s unique perspective on physicians’ obligations, both to the individual patients for whom they care and to populations and public health, made him appreciate the tensions between the physician’s obligations to individual patients and to society.
Some Thoughts on Autonomy and Equality in Relation to Justice Blackmun
By Pamela S. Karlan
This article suggests that Justice Blackmun’s contribution to the jurisprudence of sexual orientation lies in his integration of ideas of liberty and equality. Just as the requirement that laws be applied equally can serve to cabin their infringement on autonomy, so too the recognition of fundamental liberty interests can provide a stronger foundation for recognizing claims of equality.
Intuition and Science in the Race Jurisprudence of Justice Blackmun
By Deborah C. Malamud
In the field of race, Justice Harry A. Blackmun is most known for the stirring language in his opinions in Bakke and Weber in the late 1970s and Croson and Wards Cove in the late 1980s. After explaining why no race jurisprudence is made up of stirring language alone, Professor Malamud explores the development of Justice Blackmun’s race jurisprudence from his years on the United States Court of Appeals for the Eighth Circuit to his final term on the Court. She paints a picture of a judge who did not always trust his own intuition in race cases, and who therefore invested considerable energy in developing and maintaining proof structures that held the promise of substituting quasi-scientific method for intuition. As Justice Blackmun observed the failure of that promise in the late 1980s, he asserted an increasingly anxious and prophetic voice to remind the court and the nation that race discrimination remains one of the central problems of our time.
Justice Blackmun’s Federal Tax Jurisprudence
By Robert A. Green
During his tenure on the Supreme Court, Justice Blackmun was widely regarded as the Court’s authority on tax matters. Justice Blackmun viewed tax law not merely as a technical specialty, but as a microcosm of the legal system. His numerous tax opinions involve a wide range of issues of constitutional law, criminal law, administrative procedure, court procedure, and statutory interpretation. This Article begins by discussing two of Justice Blackmun’s tax opinions involving constitutional issues. Justice Blackmun refused to create special constitutional rules for tax cases. Instead, he applied generally applicable principles, but with great sensitivity to how those principles would work in the tax context. The Article next examines Justice Blackmun’s opinions in several tax cases involving statutory interpretation. Justice Blackmun’s approach can best be described as relying on practical reasoning. He analyzed these cases in light of the underlying structure and logic of the income tax system, and his analyses are remarkably consistent with the economic concept of income elaborated by tax scholars. But Justice Blackmun also carefully evaluated and balanced a range of other – and often conflicting – factors, including the precise statutory language, context, legislative history, statutory purposes in addition to reflecting economic income, post-enactment developments, and the practical consequences of adopting alternative interpretations. His opinions typically weave together multiple strands of argument in a way that deals fairly with both sides of the issue. The Article argues that the Court is institutionally capable of carrying out this kind of analysis, and that this approach is essential if the Court is to fulfill its proper role in the administration of the tax system.
Some Questions and Answers Concerning Justice Blackmun in Federalism and Separation of Powers Cases
By Vikram David Amar
In this short article, Professor Amar analyzes some of Justice Blackmun’s intellectual contributions in the fields of federalism and separation of powers. Professor Amar praises Justice Blackmun for asking the right kinds of questions regarding the interaction between governmental institutions in political processes. Professor Amar does, however, express some misgivings about the way these questions have been answered by the Court.
Weighing the Listener’s Interests: Justice Blackmun’s Commercial Speech and Public Forum Opinions
By William S. Dodge
Justice Blackmun’s commercial speech and public forum opinions reflect a distinctive balancing approach that takes seriously the listener’s interests in receiving information and, sometimes, in not receiving information. The Justice consistently advocated this listener-oriented balancing approach throughout his tenure on the Supreme Court, and, contrary to the conventional wisdom, this approach proved to be substantially more protective of free speech than the more categorical approaches the Court ultimately adopted. Professor Dodge argues that Justice Blackmun’s approach is preferable to the Court’s current doctrine by examining two types of cases that current doctrine finds hard to handle: restrictions on protesters in public forums around abortion clinics and mandatory disclosure requirements for commercial speakers like cigarette warning labels and registration requirements for securities.
Justice Blackmun’s Mark on Criminal Law and Procedure
By Kit Kinports
Much has been made of Justice Blackmun's supposed transformation from a "Minnesota Twin" following in the footsteps of Chief Justice Burger to a member of the Supreme Court's liberal wing aligned with Justices Brennan and Marshall. The Justice was appointed at a time when crime control was a major concern both for the American people and for President Nixon, who had pledged to put "law and order" judges on the Supreme Court. Moreover, the Justice's years on the Court coincided with a retreat from a number of the Warren Court precedents that had broadened the constitutional rights afforded criminal defendants. This Article explores the extent to which the Justice's supposed transformation also occurred in criminal cases.
In considering that question, the Article examines Justice Blackmun's opinions and votes in the leading Supreme Court rulings in five areas: search and seizure, confessions, the right to counsel, habeas corpus, and the right to a jury trial. The Article concludes that the Justice's views in criminal cases do not fit neatly into traditional liberal/conservative labels. On the one hand, the Justice did not align himself as closely with Justices Brennan and Marshall in criminal cases as he did in other areas, believing, for example, that neither the exclusionary rule nor the Miranda warnings were constitutionally required. On the other hand, he did not remain as loyal to a "law and order" platform as President Nixon and the legal pundits might have predicted, particularly in the areas of habeas corpus and the defendant's right to a fairly selected jury.
Justice Blackmun’s Capital Punishment Jurisprudence
By Malcolm L. Stewart
Until his final term on the United States Supreme Court, Justice Blackmun adhered to the view that the Constitution permits the imposition of capital punishment, even though he expressed personal opposition to its use. In Callins v. Collins, however, Justice Blackmun took the position that the death penalty, as currently administered, is unconstitutional. This article traces the development of Justice Blackmun’s capital punishment jurisprudence over the course of the Justice’s tenure on the Court.
In early cases involving broad, systematic challenges to state capital sentencing regimes, Justice Blackmun consistently showed broad deference to legislative decisions regarding the proper administration of the death penalty. During the 1980s, however, Justice Blackmun expressed growing concern about he manner in which individual capital cases had been litigated. And during his final years on the Court, restrictions on the availability of federal habeas corpus review led the Justice to conclude that no adequate mechanism existed to ensure that errors in capital cases would be detected in a timely fashion.
This article argues that Justice Blackmun was willing to defer to state legislative judgments regarding the manner in which capital sentencing should be conducted, so long as he felt confident that the participants in individual capital trials would perform their duties in a diligent and conscientious fashion. His dissent in Callins rested not on the view that the penalty of death is per se excessive, but on his conclusion that the incidence of error and misconduct in capital cases is unacceptably high.