Reflections on Judging: A Discussion following the Release of the Blackmun Papers

Justice Blackmun\u27s papers were opened to the public on March 4, 2004, the fifth anniversary of his death. Held in the Manuscript Division of the Library of Congress, the collection includes over half a million items, many handwritten by Justice Blackmun. Anyone can read them. For legal scholars, this kind of research can only be described as exhilarating and many of the articles in this symposium draw on research from Justice Blackmun\u27s papers. For the public, the release comes at a time when the interest in judges is particularly acute

Justice Blackmun, Abortion and the Myth of Medical Independence

In this article I test this conventional wisdom by explicitly placing medicine at the center of the analysis of Justice Blackmun\u27s opinions on abortion, and then interrogating the connection between law and medicine. Using the Blackmun papers opened to the public in 2004 and augmented by other documents and sources, I examine four critical periods in Blackmun\u27s life: his years at Mayo; his participation in a series of medicine-related cases prior to Roe; the period of intra-Court dynamics in Roe; and the post-Roe period in which a split developed between Blackmun and Roe\u27s critics over the use of medical rhetoric. My first conclusion is that the long-standing Mayo made him do it explanation of Roe is wrong and should be jettisoned

The Internationalism of Justice Harry Blackmun

(Excerpt) Throughout the symposium we have heard a host of adjectives to describe Justice Harry Blackmun and his jurisprudence, among them willful, liberal, conservative, and humble. Added to this list is what Professor Ruger calls the ultimate compound taxonomy for Justice Blackmun, a \u27White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.\u27 One adjective that is conspicuously missing is internationalist, a term that describes an important, though less discussed, dimension of Justice Blackmun and his jurisprudence. Internationalism is, in part, reflected in Justice Blackmun\u27s preference change or shift from relatively conservative to relatively liberal. At the same time, internationalism defies most traditional judicial typologies. That Justice Blackmun as internationalist has been at best a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. A review of Justice Blackmun\u27s time on the Court, for example, reveals only nine cases in which foreign or international law sources are discussed in a Blackmun-authored majority, concurring, or dissenting opinion. Nonetheless, an examination of those opinions, as well as of Justice Blackmun\u27s best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn. This comment is intended to provide a roadmap for closer examination of the Blackmun Papers and to evaluate the sources of internationalism in Justice Blackmun\u27s opinions. An understanding of those sources can in turn inform typologies of internationalism among other Justices, past, present, and future. It seems particularly salient to be discussing the internationalist aspects of Justice Blackmun\u27s legacy today, at a time when the Court is deeply divided on questions of executive power over foreign affairs, the relevance of foreign and international political practices and judicial opinions to constitutional interpretation, and the extent to which decisions of international tribunals are binding on U.S. courts. Justice Blackmun\u27s appeal to the broad interests of the international community and to the universality of human rights echoes throughout these contemporary debates

Internationalism of Justice Harry Blackmun, The

This comment is intended to provide a roadmap for closer examination of the Blackmun Papers and to evaluate the sources of internationalism in Justice Blackmun\u27s opinions. An understanding of those sources can in turn inform typologies of internationalism among other Justices, past, present, and future. It seems particularly salient to be discussing the internationalist aspects of Justice Blackmun\u27s legacy today, at a time when the Court is deeply divided on questions of executive power over foreign affairs, the relevance of foreign and international political practices and judicial opinions to constitutional interpretation, and the extent to which decisions of international tribunals are binding on U.S. courts. Justice Blackmun\u27s appeal to the broad interests of the international community and to the universality of human rights echoes throughout these contemporary debates

The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court

The purpose of this Article is to take the measure of Justice Scalia\u27s ability to produce significant opinions for the Court, rather than just for himself, by focusing on the Court\u27s property rights cases during the past several decades. Much of the analysis will rely on the Blackmun Papers, because they provide a virtual treasure trove of information revealing the Court\u27s deliberative process while Blackmun was on the Court from 1971 to 1994. Almost all of this information, including Justice Blackmun\u27s handwritten notes on what each Justice said at the Court\u27s private deliberations and initial voting on the cases at conference, has never before been revealed and analyzed

Moral Ambition: The Sermons of Harry A. Blackmun

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this Service of Death and Resurrection was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on The Churchmanship of Harry Blackmun. Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice\u27s many contributions, Holmes noted a sermon that Blackmun had once preached on the Book of Ruth. Dr. Holmes concluded his eulogy by remarking that Justice Blackmun\u27s theory of Constitutional interpretation was the same as his theory of Biblical interpretation: a theory grounded in compassion. On March 4, 2004 the Justice\u27s papers became available to the public through the Library of Congress. In addition to the sermon on the Book of Ruth, preached in 1992, there was a second sermon, preached in 1987 on the bicentennial of the Constitution. In this essay I will describe how these sermons connect to and illuminate the Justice\u27s jurisprudence. First, I will describe Blackmun\u27s religious upbringing and interests. Next, I will summarize the two sermons. Then I will show how the sermons relate to each other, and to one of the Justice\u27s most famous opinions: his dissent in DeShaney v. Winnebago County D.S.S. One might ask why the sermons of a sitting Justice would be thought to shed any light at all on his jurisprudence, especially in a Justice who, like Blackmun, was careful of the boundaries between church and state. As I show below, recent scholarship has focused on the parallels and similarities between Constitutional and Biblical interpretation. In this essay, I take seriously Dr. Holmes\u27s closing comment and I ask: How similar was Blackmun\u27s interpretive approach to the Constitution and to the Bible

Revelations from the Blackmun Papers on the Development of Death Penalty Law

Justice Blackmun\u27s legacy is strongly linked to two issues - abortion and capital punishment. Blackmun\u27s opinions in these controversial areas account for much of the notion that his ideology changed while on the Court. Participants in this Symposium have reflected on these and other areas where Justice Blackmun left his mark on American law. Professor Deason explores the arbitrability cases and shows that the Court struggled - and Justices changed their minds - even in connection with relatively technical legal issues arising in non-controversial commercial contexts. One reason the Court struggles with some issues is that legal standards are (or become) inherently contradictory or confusing over time. As the law evolves, it moves in directions the Justices may not have anticipated and cannot continue to support. As a result, both the Court and individual Justices change direction. In the arbitrability cases, Justice Blackmun was one of several Justices whose approach changed as the law developed, largely through opinions authored by others. In the context of the politically-charged abortion cases, on the other hand, Justice Blackmun was the architect of the trimester framework and, later, the most vocal defender of the abortion right. Professor Kobylka notes that personal attachment to the issue, increasingly heated rhetorical style, and growing focus on egalitarianism were essential features in the development of Justice Blackmun\u27s abortion jurisprudence. Interestingly, the nature of the abortion right was not fully appreciated even by Blackmun at the time it was first articulated. Both its privacy dimension and its role in assuring equality for women were initially subordiante to the role of the physician-patient relationship on which Blackmun focused in Roe v. Wade and Doe v. Bolton. My comments focus on the death penalty cases, responding to some of Professor Sisk\u27s conclusions about them. As I wil show, both Professor Deason\u27s and Professor Kobylka\u27s observations are applicable to the death penalty cases. The availability of the Blackmun Papers aids immeasurably in scholars\u27 attempts to understand how the law developed and what role particular Justices may have played in that development

Why Do Supreme Court Justices Succeed or Fail - Harry Blackmun as an Example

At present, 108 Justices have served on the United States Supreme Court. Some have clearly been successes as judges, while a few have clearly not, and a large number are cast into that middle, satisfactory or average, category. The purpose of this paper is to propose, examine, and evaluate specific factors as determinants of judicial success, and then to consider Justice Harry Blackmun\u27s place on a continuum of successes and failures. The paper is divided into three sections. First, it reviews several ideal qualities and examines the results of several surveys of experts, which classify the Justices into categories based on their relative degree of success. Second, this article considers whether success can be predicted, and in answering this question offers several case histories illustrating examples of when judicial success could not be predicted. Finally, because the purpose of this symposium is to commemorate the release of Justice Blackmun\u27s papers, this article evaluates Justice Blackmun on the success-failure continuum. Because of his shift in position during his 24 years on the Court, Justice Blackmun is especially of interest. This article further analyzes and proposes explanations for his shift

Moral Ambition: The Sermons of Harry A. Blackmun

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this Service of Death and Resurrection was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on The Churchmanship of Harry Blackmun. Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice\u27s many contributions, Holmes noted a sermon that Blackmun had once preached on the Book of Ruth. Dr. Holmes concluded his eulogy by remarking that Justice Blackmun\u27s theory of Constitutional interpretation was the same as his theory of Biblical interpretation: a theory grounded in compassion. On March 4, 2004 the Justice\u27s papers became available to the public through the Library of Congress. In addition to the sermon on the Book of Ruth, preached in 1992, there was a second sermon, preached in 1987 on the bicentennial of the Constitution. In this essay I will describe how these sermons connect to and illuminate the Justice\u27s jurisprudence. First, I will describe Blackmun\u27s religious upbringing and interests. Next, I will summarize the two sermons. Then I will show how the sermons relate to each other, and to one of the Justice\u27s most famous opinions: his dissent in DeShaney v. Winnebago County D.S.S. One might ask why the sermons of a sitting Justice would be thought to shed any light at all on his jurisprudence, especially in a Justice who, like Blackmun, was careful of the boundaries between church and state. As I show below, recent scholarship has focused on the parallels and similarities between Constitutional and Biblical interpretation. In this essay, I take seriously Dr. Holmes\u27s closing comment and I ask: How similar was Blackmun\u27s interpretive approach to the Constitution and to the Bible

Moral Ambition: The Sermons of Harry A. Blackmun

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this Service of Death and Resurrection was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on The Churchmanship of Harry Blackmun. Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice\u27s many contributions, Holmes noted a sermon that Blackmun had once preached on the Book of Ruth. Dr. Holmes concluded his eulogy by remarking that Justice Blackmun\u27s theory of Constitutional interpretation was the same as his theory of Biblical interpretation: a theory grounded in compassion. On March 4, 2004 the Justice\u27s papers became available to the public through the Library of Congress. In addition to the sermon on the Book of Ruth, preached in 1992, there was a second sermon, preached in 1987 on the bicentennial of the Constitution. In this essay I will describe how these sermons connect to and illuminate the Justice\u27s jurisprudence. First, I will describe Blackmun\u27s religious upbringing and interests. Next, I will summarize the two sermons. Then I will show how the sermons relate to each other, and to one of the Justice\u27s most famous opinions: his dissent in DeShaney v. Winnebago County D.S.S. One might ask why the sermons of a sitting Justice would be thought to shed any light at all on his jurisprudence, especially in a Justice who, like Blackmun, was careful of the boundaries between church and state. As I show below, recent scholarship has focused on the parallels and similarities between Constitutional and Biblical interpretation. In this essay, I take seriously Dr. Holmes\u27s closing comment and I ask: How similar was Blackmun\u27s interpretive approach to the Constitution and to the Bible