by Dave Kopel
Rocky Mountain News. May 1, 1994. More by Kopel on jurisprudence.
President Clinton has promised to pick a new Supreme Court Justice similar to the recently-retired Justice Harry Blackmun. If President Clinton keeps this promise, then Constitutional rights are in for still more trouble.
Before attending Harvard Law School, Harry Blackmun had almost decided to go to medical school. After graduation, he served as legal counsel for the world-renowned Mayo Clinic in Rochester, Minnesota. Even while sitting on the Supreme Court, Blackmun said he regretted not becoming a doctor. Unfortunately, Doctor/Justice Blackmun could never tell the difference between setting medical policy and interpreting the Constitution. The over-riding principal of Blackmun's jurisprudence was that doctors in particular, and the social services industry in general, were always right.
Indeed, Blackmun's controversial Roe v. Wade abortion decision treated the right of a woman to have an abortion as almost a derivative of the doctor/patient relationship, rather than a woman's right to control her body.
Blackmun's first opinion for the Court, in the 1971 Wyman v. James case, upheld the authority of government agents to make repeated inspections of the home of welfare recipients. After all, reasoned Blackmun, the government caseworker was (like a physician), "a friend to one in need."
Two decades later (after Blackmun had supposedly become more liberal), he provided the deciding fifth vote to uphold random drug-testing of government employees, even in cases where there was not the slightest suspicion of drug use. At the oral argument, Blackmun said that he didn't consider government-mandated urine tests demeaning, since people give urine samples to doctors all the time.
Blackmun's reasoning was implausible. Since people tell deep personal secrets to psychiatrists all the time, should they also be compelled to divulge those same secrets to the government?
Again upholding the judgments of doctors against all comers, Blackmun voted to change the rules of evidence in child abuse cases: rather than having the child victim testify, a pediatrician who had coached the child to make the accusation could testify in place of the child. (Fortunately for due process, Blackmun lost on this one.)
Justice Blackmun did grow into a better Constitutionalist a few areas. One of Blackmun's early votes would have allowed the government to send someone to jail for sewing a US flag patch to the seat of his jeans. But in 1989, Blackmun provided the fifth vote to strike down laws criminalizing the burning of the flag.
Likewise, Blackmun matured from a 1960s appellate judge with cranky complaints about "permissiveness," to a Justice who in 1989 would have barred states from criminalizing homosexual sex within the privacy of one's home. In the 1989 dissent, Blackmun called for "tolerance for non-conformity."
Blackmun's most important contribution to free speech were three 1970s opinions which affirmed that commercial speech (like speech about politics) was entitled to First Amendment protection. But again, the medical principle was not far in the background. One of the cases involved abortion clinic advertising, and another involved prescription drug price advertising.
But Blackmun was far from a consistent supporter of free speech. He voted (unsuccessfully) to allow the federal government to prosecute a man who had annoyed the Soviet government by picketing the Soviet embassy with a sign that read "Release Sakharov."
Blackmun made a big point of portraying himself as a champion of "the little person." And Blackmun was a strong supporter of the rights of persons (such as prisoners and the mentally ill), whom that government had confined against their will. But (unlike former Justice Thurgood Marshall), Blackmun was hardly consistent on the issue. One of Blackmun's opinions held that the government had no obligation to waive fees for bankruptcy filings--even if the bankrupt person was indigent.
Blackmun was praised for being a "fact-based," "pragmatic" judge. In part, Blackmun never understood the difference between being a lower court judge (a job he performed fairly well from 1959 to 1970), and being a Supreme Court Justice, where logical consistency and principal are supposed to have more importance.
President Nixon had wanted primarily a nominee who would uphold "law and order." And Blackmun proved a generally reliable vote in favor of ignoring the language of the Constitution (which says that searches require a warrant based on probable cause) in favor of the "pragmatic" demands of law enforcement. Blackmun played a particularly important role in a series of cases which essentially gave the police carte blanche to search automobiles.
Even pragmatism could be jettisoned when Blackmun wanted to uphold a particular government practice. In a 1988 case involving drunk driving roadblocks, the American Civil Liberties Union presented unrefuted evidence that such roadblocks do not lower the drunk driving rate. Nevertheless, Blackmun voted to uphold the legality of the police pulling cars over the road late at night, shining a flashlight in the driver's face, and conducting an interrogation. The "carnage on the highways" made Justice Blackmun determined to do something, regardless of whether that something did any good.
Blackmun recently won media kudos for announcing that he would henceforth never vote to uphold the death penalty. While there are good arguments to make about the unconstitutionality of the death penalty under certain circumstances, claiming that the Supreme Court has the authority to outlaw the death penalty entirely is ludicrous. The Constitution makes specific reference to "capital" offenses.
The legitimacy of the Supreme Court depends on the public's perception that Court decisions are not just the result of nine old people making up what the rules should be. Supreme Court decisions need to have a principled basis the Constitutional text, history, and case law. But far too many of Justice Blackmun's opinions simply reflected what he thought would be a good idea, and his ability as a Justice to impose his ideas on the rest of the country.
Thanks to Justice Blackmun's often decisive fifth vote, reverse discrimination is the law of the land, and local governments are as race-conscious as ever. The language and intent of the federal Civil Rights Act of 1964 plainly outlaw such discrimination, but that fact was of no matter to Justice Blackmun's determination to let cities allocate 36.4% of road crew jobs to women, or 30% of construction contracts to minorities, even when there was no connection between the supposedly "remedial" quotas and past discrimination.
Harry Blackmun was a pragmatist who stuck closely to the facts of the matter before him. Blackmun's skills would have served him well in a legislature, or in a medical practice. But the Supreme Court needs a Constitutionalist who will defend the principles of freedom on which America is founded. President Clinton owes the nation more than someone who will follow in Blackmun's footsteps.