Candidate For Worst Supreme Court Justice Ever: Harry Blackmun

Yes I know, the competition for the title of Worst Supreme Court Justice Ever is stiff. A decent rogue’s gallery of candidates might include , for example, the likes of William O. Douglas, Earl Warren, and William Brennan. There may be a good case to be made for any of those, and plenty more. But none of them has the distinction of having authored Roe v. Wade. So for today, permit me to make the case for Blackmun.

Blackmun did not author any large number of important Supreme Court decisions. One might surmise that his colleagues did not trust him with the tough ones. If you wonder if that might be true, try reading the Roe decision. In any event, the Roe decision by itself is a strong qualification for the Worst Justice Ever award.

Blackmun was appointed by President Richard Nixon in 1970. Nixon had said explicitly that he intended with his nominations to roll back the excesses of the Warren Court, a process begun the previous year with the appointment of Chief Justice Warren Burger. For his next nomination, Nixon set out to appoint a known conservative, preferably from the South, but he failed to anticipate the ferocious opposition that his plan would encounter, and his staff failed badly at the vetting process. Nixon’s first choice for the seat, Clement Haynsworth, was a distinguished judge, Chief Judge of the Fourth Circuit Court of Appeals; but Haynsworth’s opponents in the labor and civil rights movements managed to trip him up on some small claimed conflicts of interest. Nixon next nominated G. Harrold Carswell, only recently elevated to the Fifth Circuit from the Florida District Court. It turned out that Carswell had made some explicitly segregationist statements during a campaign for the Georgia legislature 20 years previously. Strike two.

So, on the recommendation of new Chief Justice Warren Burger (who was Blackmun’s personal friend), Nixon nominated Judge Blackmun. Blackmun was formerly chief counsel of the Mayo Clinic in Minnesota, and had spent the most recent decade not making any waves on the Eighth Circuit.

Despite the recent arrival of Burger, when Blackmun got to Washington in 1970 the Court was still in its giddy phase, riding high in its perceived role of super-legislature to enact the priorities of the left that couldn’t make it through Congress. Nixon’s hope that Blackmun would become part of the resistance to that role seemed to start out well. Over his first couple of years on the Court, Blackmun voted with Burger close to 90% of the time.

In 1972 Blackmun joined the dissents in the 5-4 decision in Furman v. Georgia. For those too young to remember, that’s the case where the Supreme Court struck down the death penalty statutes in every state in one blow, and threw the imposition of the death penalty into chaos nationwide for several years. Furman is a bizarre decision, consisting of a two-sentence per curiam Order, followed by some 230 pages of separate opinions, where eight of the nine justices wrote their own separate opinions, five concurrences and three dissents. The only one who did not write separately was Blackmun, who just joined each of the other three dissents. But Blackmun must have sensed the frisson of excitement that could be had by wielding the huge power to strike down 50 states worth of statutes all at once. And the states just meekly accepted the Court’s edict, and got to work completely reworking their death penalty statutes (or, in some cases, abandoning them). Wow, that was cool!

And then, only two and a half years into his tenure, and six months after Furman, there came Roe v. Wade in January 1973.

Roe took the Supreme Court’s power grabbing to a whole new level beyond Furman. First, although capital punishment had been a standard feature of state criminal law from the beginning, there actually is a provision in the Constitution, Eighth Amendment, prohibiting the imposition of “cruel and unusual punishment.” So Furman had a bona fide if debatable basis in constitutional text. Second, although some of the justices expressed the view that the death penalty should be prohibited in all cases, most of the concurrences emphasized only procedural defects in its imposition, meaning that the states could reinstate the death penalties by reworking their statutes, which is in fact what occurred.

By contrast, Roe had no basis in constitutional text and, by declaring abortion to be an absolute constitutional right, left the states little to no wiggle room to reinstate restrictions that their citizens or legislatures thought appropriate.

Of all the Supreme Court’s power grabs from the Warren Court era through the 1970s, Roe is unquestionably the most dramatic and consequential. The huge significance of the decision has to have been understood by all members of the Court when it was in the works. And yet the decision is shockingly weak. It’s hard even to discern a logic. Most of the decision is history and background, and then the whole reasoning comes down to a few sentences, most of them entirely unmoored from the Constitution itself:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Huh? How does any of that follow from something in the Constitution? I’ll bet if you went to a demonstration protesting the overruling of Roe, and asked the demonstrators how the Supreme Court found a right to abortion in the Constitution, you wouldn’t be able to find a single person who could articulate this basis, supposedly in the Due Process clause of the Fourteenth Amendment (“No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . .”). Is that really the best that our highest Court could do to justify this hugely consequential decision?

You might ask, if the basis for the decision is so slim, how did it gather seven votes? My theory is that Warren Burger only joined the majority when it became clear that its position would prevail, and he thereby got to assign the writing of the decision to the Court’s weakest link, Blackmun.

Meanwhile, if Blackmun and his colleagues thought that they could remove the issue of abortion from the political realm by the Roe decision, the truth turned out to be the opposite. Abortion became and has remained the hottest among hot button political issues, and has poisoned the entire process of Supreme Court appointments now for several decades. Meanwhile, in Europe the issue worked its way through the democratic process, where most countries have come to a position of allowing the procedure through approximately the first trimester.

Blackmun’s career on the Supreme Court went 24 years, to 1994. His ideological movement during that time is what the New York Times likes to call “growth.” According to this bio of Blackmun at Wikipedia, during his first five years on the Court Blackmun sided with Burger in 87.5% of the closely divided cases; but in his later years on the Court, he became the very most liberal justice, and from 1986-1990 voted with Justices Brennan and Marshall 97.1% and 95.8% of the time.

The former New York Times Supreme Court reporter Linda Greenhouse even wrote a 2006 book about Blackmun with the title “Becoming Justice Blackmun” — basically about his wonderful transition from unthinking conservative to compassionate liberal.

In an April 1994 article in the Times, at the time of Blackmun’s pending retirement, Greenhouse previewed the themes that later turned into the book. First, Blackmun undertook to be the very personal defender of Roe, never of course taking the trouble to try to ground the decision in the actual Constitution. Greenhouse has two quotes from Blackmun dissents in later cases. From Webster v. Reproductive Health Services:

"The signs [that there might no longer be majority support for Roe] are evident and ominous, and a chill wind blows."

And from Planned Parenthood v. Casey:

"I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light."

Anyone who disagreed with him was part of the forces of “darkness.”

Blackmun in the end even reversed his position on the death penalty. From Greenhouse’s Times piece:

Just two months ago [i.e., February 1994] Justice Blackmun, who had voted to uphold death sentences throughout his judicial career, startled the country by denouncing capital punishment as a failed experiment and declaring that "from this day forward, I no longer shall tinker with the machinery of death."

Again, now that he has moved to the left, everyone who disagrees with him is a moral monster.

I think he’s a pretty good candidate for the Worst Supreme Court Justice Ever award. But I am sure that good cases can also be made for others.