POLITICS MAY 2, 1994
It seems ungenerous, perhaps, to dissent from the praise that has been lavished on Harry Blackmun since he announced his retirement from the Supreme Court last week. Blackmun was, as President Clinton said, a good and decent and humane man, whose compassion suffused his work and his life. Unlike some of his colleagues, he took his job seriously until the very end, and rather than flitting about to dinners and receptions, he worked long and lonely hours poring over the facts of the most obscure cases and agonizing about the fate of the parties. If Blackmun tended to get mired in trivial details, if many of his opinions seemed legally unsophisticated and overly emotional and if he often appeared to reach the right result for the wrong reasons, nevertheless he cared about the Court and the country with a sincerity that commands respect.
But feeling deeply is no substitute for arguing rigorously; and the qualities that made Blackmun an admirable man ultimately condemned him to be an ineffective justice. By reducing so many cases to their human dimensions and refusing to justify his impulses with principled legal arguments, Blackmun showed the dangers of the jurisprudence of sentiment. He committed liberals to the unfortunate and inaccurate proposition that justices must resort to personal sympathy in order to justify liberal results. Although he occupied the seat of Holmes and Cardozo, Blackmun will be remembered in the rank of Frank Murphy, the warmhearted New Dealer who wrote emotional dissents on behalf of the poor and powerless, but whose tendency to let his heart get the better of his head deprived him of lasting influence. Clinton has promised to replace Blackmun with a justice in Blackmun's image; but if he really cares about giving liberals an effective voice on the Court, perhaps he should think again.
In explaining his evolution from conservative to liberal, Blackmun made the customary disclaimer that he had remained the same while the Court had changed. And, in a sense, the sentimental strain was evident from the start. In both his conservative and his liberal incarnations, Blackmun repeatedly brushed aside legal abstractions and focused instead on human predicaments. At his confirmation hearings in 1971 he expressed the hope that his opinions would show "in the treatment of little people, what I hope is a sensitivity to their problems."
In the process of personalizing case after case, however, Blackmun often misinterpreted or ignored the underlying constitutional issues in ways that hardly served constitutional values over time. In his maiden opinion, Wyman v. James (1972), he said that welfare officials didn't need a search warrant to inspect a welfare mother's home against her will. But instead of concentrating on the text and history of the Fourth Amendment right against unreasonable searches and seizures, Blackmun resorted to sentimental homilies, depicting the welfare caseworker "not as a sleuth but rather, we trust,... a friend to one in need." He also found some evidence that the mother's 2-year-old child may have been abused: "There are indications that all was not always well with the infant Maurice (skull fracture, a dent in the head, a possible rat bite). The picture is a sad and unhappy one." Ultimately, Blackmun's impulsive sympathy for "the infant Maurice" and the social worker led him to narrow the scope of Fourth Amendment doctrine.
Blackmun's sympathies became progressively more liberal, but his methodology remained the same. In 1981 he voted to uphold a California law that punished men, but not women, for having sex with minors. Because he despaired of the human costs of teenage pregnancies, Blackmun rejected the Ruth Bader Ginsburg position--that the Constitution protects men as well as women from gender discrimination. But he couldn't resist including irrelevant, and strangely prurient, excerpts from the trial transcript suggesting that the 16-year-old girl may have been a willing participant in the rape: "He started kissing me again and we were laying on the bench. And he told me to take my pants off. I said, `No,' and ... I let him do what he wanted to do...." Again, Blackmun's conflicted impulses to do justice between the parties confused his analysis of sex discrimination. There are, of course, several varieties of sentimental jurisprudence, and they competed uneasily throughout Blackmun's career. There is the sentimentality of particularism--focusing on the human consequences of every decision. There is also the sentimentality of compassion--a more abstract commitment to dramatizing the plight of the poor and the downtrodden, without reference to actual individuals. "There is another world `out there,' the existence of which the Court, I suspect, either chooses to ignore or fears to recognize," Blackmun wrote repeatedly. But neither his particularism nor his emotionalism was especially consistent; and despite his rich rhetoric, his sweeping generalizations were rarely supported by rigorous empirical analysis.
Blackmun's 1978 dissent in the Bakke case is a good example. "The sooner we get down the road toward accepting and being a part of the real world, the sooner will these difficulties vanish from the scene," Blackmun declared in his dissent, which would have upheld the University of California-Davis's explicit quota for minority medical students. "In order to get beyond racism, we must first take account of race. There is no other way." But in fact, there were many less radical alternatives, such as the Harvard emphasis on goals rather than quotas, which Blackmun failed to explore. And his opinion failed to examine the actual operation of the Davis program. As Drew Days, now the U.S. solicitor-general, has argued, the trial record revealed little about why the Davis program was established, after what deliberations, with what ultimate purpose and why Asian Americans were indiscriminately lumped in with blacks. Instead, the Court was presented with a series of post hoc arguments from the medical school's lawyers, which Blackmun uncritically accepted.
"To say that he's a sentimentalist is to give him more than he deserves," says Bruce Ackerman of Yale. "He was a person with a conventional mind, without a consistent method, who moved from the right to the left." A more charitable way of explaining the inconsistent strains in Blackmun's work is that he was miscast as a liberal prophet. As a personality, he was finicky to the point of obsessiveness. He would sit silently at oral arguments, interrupting only rarely to ask weirdly specific factual questions: How high was the grass in the St. Paul cross burning case, he wanted to know; or had the government lawyer in the Haitian refugee case read Graham Greene's The Comedians? A long-standing joke depicted Blackmun as the clerk and his clerks as the justice: he would fret about spelling errors and typos, and laboriously check all the case citations by hand, as they drafted opinions aspiring to the grand style.
But the grandiose rhetoric often struck a false and unnatural note, for it was hard to reconcile with Blackmun's purportedly modest personality. Blackmun is, by all accounts, a humble, even insecure, man whose constant self-deprecation is both endearing and poignant. When he circulated the first draft of Roe v. Wade he apologized for its "rambling quality." When he received speaking invitations he would typically shake his head and ask his clerks: "I wonder what possessed them to ask me? I guess I'll go, if they want me, but I can't imagine I'll have anything useful to say." His opinions, however, were often anything but modest; and their over-ripe, self-dramatizing strain--"I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light," he wrote in the Casey abortion case--seemed oddly disconnected from the man himself.
Blackmun's conflicting qualities converged in his death penalty dissent last February. In the Callins case he announced that, after agonizing about the question for twenty-two years, he had concluded that the death penalty is cruel and unusual in all circumstances. There was something unseemly, first of all, about the public fan-dancing that preceded the revelation. Whatever possessed him to go on "Nightline" in November to give a tantalizing preview of his decision ("I'm not certain at all that the death penalty can be constitutionally imposed; I haven't taken that position yet, but I am getting close to it"), it was the same impulse that led him to draft a peculiar eight-page press release to accompany the release of Roe v. Wade: "I fear what the headlines may be, but it should be stressed that the Court does not today hold that the Constitution compels abortion on demand." William Brennan talked him out of the press release in Roe. But the Callins opinion reads like a press release of its own; and its melodramatic rhetoric--"I shall no longer tinker with the machinery of death"--is addressed not to Blackmun's colleagues, but to the largely unheeding public at large.
Blackmun began the Callins dissent by emotionally describing the death of a convicted murderer by lethal injection: "The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant or a petitioner, but a man, strapped to a gurney, and seconds away from extinction." But surely the relative brutality or benevolence of the execution in question should be irrelevant to the constitutional issue: Is the death penalty unconstitutional in all circumstances? When Nina Totenberg of National Public Radio asked Blackmun, "Have you ever cried over these cases?" ("Figuratively, yes, but not actually," Blackmun replied), the question was more appropriate than it sounded. For it responded to the sentimentality that Blackmun himself had invited.
When the moment arrived, however, Blackmun could not seem to make up his mind about the constitutional basis for his decision. In his "Nightline" interview he said he had "difficulty" with William Brennan's and Thurgood Marshall's notion that the death penalty always and everywhere violates the Eighth Amendment's prohibition against cruel and unusual punishment. The text of the Constitution allows capital punishment, Blackmun noted appropriately, and "the American people are in favor of it." Instead, Blackmun said he had been more influenced by the argument that the death penalty, as administered, is not administered evenhandedly: "I think it comes close to violating the equal protection clause of the Constitution," he said, because more blacks are executed than whites.
But in his Callins opinion, Blackmun took a different approach. With only a passing reference to the possibility of racial discrimination, he announced that because two strands of the Court's Eighth Amendment jurisprudence seemed to be in conflict--the decision to impose death must be closely confined, but the decision to extend mercy must be unlimited--he had concluded that the death penalty is cruel and unusual in all circumstances. The logical leap is mystifying. The Court itself devised the rules for administering the death penalty; and if they are in conflict with each other, the sensible solution would be to revise them, or, at most, to conclude that the death penalty, as it is currently applied, violates some notion of due process of law. Blackmun never explained how he moved from the view that the death penalty is not administered rationally to the view that it is, always and everywhere, cruel or unusual.
And then there is Roe v. Wade. Blackmun's justification for Roe on the day that he resigned ("a step that had to be taken as we go down the road toward the full emancipation of women") is ironically at odds with his romantic obsession, in the original opinion, with the professional interests of licensed physicians. Blackmun never forgave Ginsburg for criticizing the scope of Roe in the 1980s: he peevishly refused to interview her law clerks for his own clerkships and, according to several intimates, was less than elated by her nomination last year. And although he eventually came around to Ginsburg's emphasis on gender equality rather than the right to privacy, he could never bring himself to defend the equality position in a legally intelligible way: in the Casey decision it was the mushy moderate justices, not Blackmun, who emphasized "the ability of women to participate equally in the economic and social life of the nation." Blackmun said frequently, "I think it was right in 1973 and it's right today." But he never managed to explain why it was right in a way that satisfied basic standards of legal craftsmanship.
Why should liberals care if Blackmun was an indecisive, unsophisticated craftsman, unconcerned about dressing up his humane impulses in legal reasoning? "I'd rather have Blackmun, who uses the wrong reasoning in Roe to get to the right results, and let other people figure out the right reasoning," says Harold Koh of Yale, a former Blackmun clerk. "And on the personalization point, he's being honest in a way that other people aren't. He sees something that really offends him, and if it offends him, he doesn't censor himself." Blackmun does indeed deserve points for candor; and his approach has a transparency that more subtle justices, like William Brennan, took care to conceal. Nevertheless, his example is dangerous for liberals on several levels.
There is the danger, first of all, of sentimentalism on the right. Conservatives are no less prone to sentimentality than liberals; but when they exalt their own sensibilities over the Bill of Rights, the results tend to look less benign. Chief Justice William Rehnquist's dissent in the 1989 flag burning case is an unsettling example. Flag burning, he said, should be illegal because it offends him; and instead of making a coolheaded legal argument, he quoted at length from "Barbara Frietchie," a saccharine patriotic air.
It is also difficult, as Blackmun shows, for a legally unsophisticated justice to influence the terms of debate on the Court. Some of Blackmun's opinions are eloquent and convincing, and others are wooden and pedestrian, depending in large part on the quality of the clerks. (His best work was in tax and commercial speech cases.) But because Blackmun himself was not nimble enough to make the strongest arguments on his own, at oral argument and at conference, he consistently failed to articulate positions that might have won over the justices in the middle. In the 1990 peyote case, for example, Blackmun failed to take Antonin Scalia to task for ignoring text, history and precedent when he claimed that the First Amendment didn't require exemptions for religious minorities. Instead, Blackmun wrote a sentimental paean to the "unfulfilled and hollow promise of religious tolerance for Native Americans." Two years later, in the Weisman graduation prayer case, Blackmun refused to join David Souter's concurrence that meticulously laid out the historical challenge to Scalia's peyote opinion. Instead, he resorted to platitudes about the separation of church and state. And in the Zobrest case last June, where both the law and the equities should have led him to favor a deaf boy in a parochial school who wanted a sign language interpreter, Blackmun preferred to indulge in wooden anti-clericalism.
There is something lawless, finally, about the notion that warmhearted impulses are more important than legal reasoning. The most basic requirement of the rule of law, as Judge Richard Posner argues, is that judges must be impartial, that they can't decide even close cases on the basis of their personal sympathy for one party or another. Some of Blackmun's opinions, however, gave the impression of being based on nothing more than sympathy. Consider his most purple opinion, "Poor Joshua!," which President Clinton quoted approvingly when accepting his resignation. No one denied that the facts were tragic; the question was whether county officials deprived 4-year-old Joshua of a constitutionally protected liberty when they stood by as his father brutally abused him. In rejecting the claim, Rehnquist made a plausible distinction between negative and positive liberty. William Brennan wrote a competent dissent arguing that the county caseworkers assumed a duty to help Joshua when they agreed to supervise his case. But Blackmun merely lamented the personal tragedy: "Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly and intemperate father.... [This] is a sad commentary on American life, and constitutional principles." Since Blackmun failed to elaborate why he thought constitutional principles were violated, it was hard to avoid the impression that he was moved by sympathy alone.
Harry Blackmun is an earnest and sincere man, but the liberal lionization of him is cynical and ultimately distressing, for it encourages the conservative charge that liberals are concerned only about results rather than reasons. If Blackmun, over the course of a quarter-century, was unable to articulate a convincing rationale for striking down the death penalty, or for invalidating abortion laws, then it seems fair to conclude that his decisions were unprincipled. And by missing the best arguments in other cases, he allowed similarly disingenuous conservative claims to pass without the challenge they deserved. Blackmun shows, in the end, that a big heart and the capacity to feel pain are not enough for success on the Supreme Court. Liberals need an intellectually sophisticated craftsman--not for aesthetic reasons, but because the alternative is a Court that governs by impulse rather than argument, by emotion rather than law.
Jeffrey Rosen is the legal affairs editor at The New Republic.