Justice Harry Blackmun, RIP

"I think [Roe] was right in 1973, and I think it was right today. I think it's a step that had to be taken as we go down the road toward the full emancipation of women."
Justice Blackmun, at a 1994 joint press conference with President Bill Clinton, announcing his retirement

"He likened Roe v. Wade to some of the court's greatest rulings, saying that 'it brought into the consciousness of the public new concepts of what the Constitution is all about.'"
Baltimore Sun, March 5, 1999

"It was Blackmun's defensiveness about Roe that led to his metamorphosis as a liberal. Faced with a barrage of criticism, Blackmun tried to validate Roe by vehement reiteration. If the constitutionalization of abortion could be repeated, confirmed, and indeed expanded, it might be made invulnerable. Far from qualifying the right announced in Roe, Blackmun wanted to extend that ruling to ever more doubtful territory."
From Justice Lewis F. Powell, Jr., by John C. Jeffries, Jr.

When former Supreme Court Justice Harry Blackmun died March 4 at age 90, virtually every newspaper's opening paragraph referred in some manner to the "divisive" Roe opinion which "ignited passions" and "galvanized" the creation of the pro-life movement. And so they should. Roe fundamentally altered the landscape of America in ways so profound we still do not fully appreciate their magnitude to this day. Alas, the legal, moral, and ethical erosion first begun in Roe continues today.

Although he frequently lamented that his 62-year-long legal career consisted of more than writing the "landmark" Roe v. Wade decision, it was clear there was no other case in which Blackmun took more pride of authorship. In later years he often spoke of how the 7-2 decision was "a step that had to be taken as we go down the road toward the full emancipation of women."

Few people, other than lawyers, read Roe today. What a pity. In an hour or so the careful reader can get quite an education.

In his 50-page decision Blackmun (who had been on the Court less than three years) goes hither and yon in vain pursuit of an argument which would rebut the charge that he had created the "right" to abortion out of whole cloth in an exercise of what Justice Byron White angrily labeled "raw judicial power." In prose as tedious as it was revolutionary, the 63-year-old Blackmun weaved together strands from various patches in the Constitution - - the First, Fourth, Fifth, and Fourteenth Amendments - - in the hope that the resulting jurisprudential garment would give his results-driven decision cover. His choices may have been alliterative but the result was a hopelessly muddled, mixed-up, and misguided mess.

Unleashing abortion on demand, however, did bring Blackmun slavishly favorable press, something in short supply in the pre-Roe days when Blackmun and his childhood friend from St. Paul, Chief Justice Warren Burger, were condescendingly dubbed the "Minnesota Twins." No, prior to Roe, there was no chance pro-abortion columnist Ellen Goodman would describe him as this "gentle, careful jurist." Such syrupy sweet press would only grow thicker as Blackmun continued on the "intellectual odyssey" launched by Roe.

Those who liked his politics (and, truthfully, Blackmun's decisions were nothing more than thinly disguised policy preferences) never tired of celebrating his "growth."

But as Joe Sobran observed when Blackmun retired, even his admirers "tactfully avoid suggesting he has deepened anyone's understanding of the text of the Constitution." Lacking intellectual depth, "and therefore the ability to persuade rational beings, Mr. Blackmun fell back on his own feelings."

It was Blackmun's peculiar genius (with the media's unfailing help) to use the root source of his deficiencies as a justice - - what George Will described as "confusing autobiography with constitutional reasoning" - - to turn the tables on those who were astonished by his bewildering conclusions.

By reciting the prescribed rote ("compassion," concern for "real world implications," etc.) Blackmun "could think he made himself a litmus test of others' virtue," Sobran wrote. Predictably, "[a]ll too often, they failed to match his emotional extravagance."

At his 1994 retirement many of his defenders adopted a take-no-prisoners posture toward the legion of Blackmun critics. Others, more adroit, positioned Roe in the context of what the Washington Post's David Von Drehle called the "triumph of pragmatic justice" approach.

In other words, hey, Roe may have been "a rampant misunderstanding of the Constitution and the role of a judge" (as Von Drehle characterized the critics' case against Roe); and it surely was replete (as Professor Joseph Dellapenna once said) with "irrelevancies, non-sequiturs, and unsubstantiated assertions"; and undoubtedly Roe is bad (as pro-abortion but anti-Roe Harvard Law Professor John Hart Ely observed) "because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be," but so what? It got the job done!

While Blackmun frolicked in the praise and absorbed the hits for Roe, we now have a much fuller picture of the behind-the-scenes maneuverings prior to Roe's issuance. As petty politicking masquerading as dispassionate jurisprudence, it was not a pretty picture. That it made no dents in Blackmun's status as a media cult figure is even more unpleasant.

For instance, Bob Woodward (of Watergate fame) wrote what ought to have been a powerhouse op-ed piece for the Washington Post January 22, 1989. Appearing the day of Roe's 16th anniversary, the analysis was based on the just recently released papers of the late ultra pro-abortion Justice William Douglas.

Ever since Roe was handed down, Woodward began, its army of critics have cried foul. They have argued, "that the court was legislating social policy and exceeding its authority as the interpreter, not the maker, of law." His surprising come-on was, "New evidence has now surfaced that some of the justices who wrote and supported the opinion were doing precisely that, in at least part of the decision (Roe's trimester scheme)."

An incredibly thorough reporter, Woodward had combed through a series of internal Court memos that circulated in late 1972. He found that, whatever his motive, Blackmun proffered the possibility that at the end of the first trimester, the state might begin to consider some protection for the "fetus."

This caught several of his colleagues who were later to join him in the Roe decision off guard, according to Douglas's papers. Justice Potter Stewart wrote he was concerned that Blackmun was "fixing the end of the first trimester as the critical point for valid state action." Justice Thurgood Marshall, for his part, not only pushed the date of possible state interest all the way forward to viability, he also turned the discussion completely away from possible state action to protect the unborn to focus exclusively on regulations to protect the woman's health!

By the time the flurry of memos subsided, Roe had assumed its final shape: an absolute right to abort in the first trimester; states were allowed to regulate in the second trimester but only to safeguard the woman's health; and only in the third trimester could the state theoretically take into consideration its interest in protecting unborn human life, an "opening" which in Roe's companion case, Doe v. Bolton, and in many subsequent cases the Court did its best to close.

In the past decade, other accounts have suggested that Roe's (evil) genius was, in fact, Justice William Brennan. In his 1993 book, A Justice for All, Kim Isaac Eisler paints a unflattering picture of Burger and Blackmun. By his account, Blackmun was greatly influenced by a brief submitted by doctors at the Mayo Clinic in Minnesota. (He had been a member of the clinic's board and its chief lawyer for years.) Their concern was that anti-abortion laws "infringed" on how they practiced medicine. Thus, according to Eisler, at least initially Blackmun was reluctant to accept the right to privacy arguments, leaving some room for state regulation. Eisler argues that Brennan and William Douglas secretly plotted to push Blackmun and other justices to adopt a rationale that would overturn all the nation's abortion laws, not just those of Texas and Georgia, which were at issue in Roe and Doe, respectively.

They had limited luck, according to Eisler, until the case was reheard. (The Court had been short two justices the first round.) What turned the trick was when one of the new justices, Lewis Powell, turned out to have no opposition to abortion, and one of the fence-straddlers, Potter Stewart, adopted Brennan's sweeping language, mostly because he disliked Burger.

As this and many other accounts illustrate, the Court for years has been rife with politicians. Justices such as Brennan shrewdly exploited both their personal relationships with the other justices and the friendships made by their clerks with the law clerks who worked for other justices to win their colleagues over. In other words, they prevailed on personal grounds, not the merits of their position.

But if Blackmun initially was a (relatively) reluctant recruit into the abortion-on-demand army, he rose swiftly through the ranks. His rhetoric began to take on an increasingly sharp edge. By the mid-to-late 1980s not only were his statements interchangeable with NARAL's, they were quite literally hysterical. As the High Court grew more uncomfortable with Roe, Blackmun assumed an ever more visible pro-abortion profile.

A loner, he eschewed backscratching in favor of bitter sarcasm and vocal dissents which continually predicted the demise of Roe. In his self-appointed role as prophetic voice, Blackmun used a host of outside speaking engagements to "announce" that Roe was about to be overturned. His objective was to try to inject abortion into the presidential contests, on the one hand, and persuade his fellow justices that the end of the world would accompany the end of Roe, on the other hand.

While he had little influence on the former, he apparently was quite successful in pulling over at least one, if not two, justices with the latter. The same man who erected a wall of legal protection around the "right" to abortion two decades later was instrumental in finding new laborers to shore it up. Quite a guy.

When reporters took to swooning over how Blackmun's decisions increasingly demonstrated a growing sympathy for the "little guy," pro-lifers almost fainted. The hypocrisy/double standard/willful blindness was just too much. But the heights/depths came when Blackmun was given a cameo role in the much-acclaimed movie Amistad.

Blackmun played Justice Joseph Story, delivering his 1841 decision which (as Chicago Tribune reporter Glen Elsasser described it) "held that the blacks who had seized control of the slave-running schooner Amistad should be freed and returned to Africa." With this role Blackmun's position in the Hollywood/media pantheon was now firmly established: friend of the "little guy" - - except the littlest guy - - all-purpose liberator of enslaved people - - except those whose fate is absolutely in the hands of another.

We offer condolences to Blackmun's wife and family as we do to the families of more than 38 million unborn babies lost in the whirlwind of Roe v. Wade. For pro-lifers, weeping over the massive carnage, I offer these words which I've seen attributed to storied theologian Reinhold Niebuhr.

"The arc of history is long, but it curves toward justice."

dha