The Justice Who Grew

Abstract

The Justice Who Grew Harold Hongju Koh Astimes have changed, Justices have changed. Peopletake a second look.1 When Harry Blackmun stepped down from the Supreme Court, he completed what is surely one ofthe most remarkable odysseys in Ameri­ can public life. When he joined the Supreme Court in 1970, Justice Blackmun was dismissed as a conservative nonentity. He leaves a liberal champion, hailed by President Clinton as a Jus­ tice “whohas earnedtherespectandthegratitude of every one of his fellow countrymen and women.”2 Who changed, the Justice or the Court? The answer: a little ofboth. The Court Harry Blackmunjoined ranked among the most liberal in history; the Court he leaves stands among the most conservative. In 1970, Blackmun, Warren Burger, andthe secondJusticeHarlanformedthe right wing ofa Court that included Hugo Black, WilhamBrennan, WilliamO. Douglas,and Thurgood Marshall and centrists Potter Stewart and Byron White. The “conservative” Blackmun of those days would have sat at the center of any Court that included Justices Rehnquist, Scalia, and Thomas. Yet even as the Court movedbeneath him, in some areas, Blackmun remained strikingly con­ sistent. Asked in 1970 at his confirmation hear­ ing about his “views ofthe Supreme Court as the protector ofour mostbasic liberties,” Blackmun answeredthat “my record and the opinions that I Justice Harry A. Blackmunjoined the Supreme Court in 1970 afterelevenyears ontheU.S. CourtofAppealsforthe Eighth Circuit 6 1994 JOURNAL Professor Harold Hongju Koh clerked for Harry A. Blackmun (shown here withhis wife, Dottie Blackmun) in the 1981 Term. have written . . . will show, particularly in the civil rights area and in the labor area and in the treatment of little people, what I hope is a sensi­ tivityto their problems.”3 In 1971, heauthoreda unanimous opinion callingaliens a “discrete and insular minority” deserving specialjudicial pro­ tection.4 In his penultimate term, he stood alone in protesting the forced return of Haitian refu­ gees.5 As an appeals court judge in 1968, he outlawed the use ofthe strap in prisons as offen­ siveto “decency and humandignity.”6 In his last months as an active Justice, he echoed that thought when he vowed “no longer [to] tinker with the machinery of death” in capital cases.7 Even so, there can be little doubt that Black­ mun changed. Few would mistake the cautious novice who partlybasedRoe v. Wade onthe rights ofdoctors with the decisive man who recalls that case as a necessary step “down the road toward the full emancipation of women.”8 The Blackmun who stubbornlyupheldfilingfeesforbankrupts9looks little likethe passionate dissenterwho supported “Poor Joshua,” an abused child, against an indif­ ferent state welfare agency.10 What transformed the “Minnesota Twin” into the conscience ofthe Court? When Justice Blackmun came to Washington in 1970, he seemed the classic insider. A professional life­ time spent at Harvard College and Law School, the elite Dorsey law firm of Minneapolis, the Mayo Clinic, and the Eighth Circuit imbued him with an idealistic, almost naive, faith in govern­ mentalinstitutionsandprofessionals. Dismissed as a “White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs,”11 he seemed likelyto defer to governmental authority and to lose touch with common problems. But Blackmun took hisjob seriously and did his own work. The Court’s sprawling docket exposed himto abroader and morebrutal slice of life than he had ever known. The relentless cascade of arguments, briefs, prisoner petitions, death sentences and daily mail—all ofwhich he read—paintedalesstranquilpicture: anAmerica of antagonistic classes, racial conflict, govern­ mental errors, and intense personal suffering. Fromthe Court,hewrote, “[o]ne seeswhatpeople ... are litigating about.... One gets a sense of their desires and theirfrustrations, oftheir hopes BLACKMUN TRIBUTE 7 andtheir disappointments, oftheirprofoundper­ sonalconcerns, andofwhattheyregardasimpor­ tant and as crucial. . . . We see ... a constant, seething, economic, domestic, and ethical struggle.”12 Cases like Roe v. Wade13 and Furman v. Georgiasubjectedhimto “an excruciatingagony of the spirit.”14 Roe, in particular, earned him steadfast admiration and vicious harassment. “Think of any name,” he once recalled, “I’ve been called it...: Butcher ofDachau, murderer, PontiusPilate, AdolphHitler.”15 Inpublicplaces, he was picketed and embraced, threatened and celebrated, and once literally fired upon, while sittingwithhiswife inhisownlivingroom. That searing experiencetaught himthatJustices must take sides, andbearthe consequences. Hebegan torealizethatall socialinstitutionsarenotequally responsible, and that in the face of institutional abuse...