Wood, Diane P.

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University of Chicago Law SchoolChicago UnboundJournal Articles Faculty Scholarship1995Justice Harry A. Blackmun and the Virtues ofIndependenceDiane P. WoodFollow this and additional works at: http://chicagounbound.uchicago.edu/journal_articlesPart of the Law CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in JournalArticles by an authorized administrator of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.Recommended CitationDiane P. Wood, "Justice Harry A. Blackmun and the Virtues of Independence," 71 North Dakota Law Review 25 (1995).JUSTICE HARRY A. BLACKMUNAND THE VIRTUES OF INDEPENDENCEDIANE P. WOOD*When I think of Justice Blackmun, for whom I had the privilege ofserving as a law clerk during October Term 1976, I recall manyadmirable personal qualities: his integrity, his loyalty, his tenaciousness,his quiet sense of humor, and the scrupulous care that he brought tovirtually every aspect of his job. These were qualities that had typifiedhis approach to each position he had held in his long and distinguishedcareer: practicing lawyer, counsel to the Mayo Clinic, and court ofappeals judge. However, in some ways the most impressive quality to mewas one uniquely critical to a judicial position: his independence ofthought, and his refusal to fit any particular stereotype that the outsideworld tried to impose upon him. This independence explains a greatdeal about the positions he took on the Court, and those he refused totake.The task of documenting the Justice's long career on the bench isone that deserves a book, not a brief memoir. However, using severalexamples from October Term 1976-which will always be the CourtTerm I know the best-I can illustrate the ways in which thatindependence manifested itself over the course of one year. It will alsobe apparent why a clerkship with Justice Blackmun was such a rewardingyet demanding experience: there were never any easy answers, neverany knee-jerk reactions, and never any short-cuts. Instead, what my co-clerks and I saw was meticulous attention to the facts of each case, anopenness to the arguments that all parties brought before the Court, andan effort in every single case to synthesize both the facts and the law sothat the soundest conclusion could emerge.The first example I would like to cite is Castaneda v. Partida,lwhich raised the question whether discrimination in the grand juryselection process tainted a state conviction. Although the case had notbeen well briefed by the State, one of the points that the State had raisedwas its "governing majority" theory: since the overwhelming majorityof the population and elected officials of the locality in question were all* Diane P. Wood clerked for Justice Blackmun during October Term 1976. She is presentlyDeputy Assistant Attorney General in the Antitrust Division of the U.S. Department of Justice, and ison leave from her position as the Harold J. and Marion F. Green Professor of International LegalStudies at The University of Chicago Law School. The views expressed here are entirely personaland do not necessarily represent the position of the Department of Justice.1. 430 U.S. 482 (1977).HeinOnline  -- 71 N.D. L. Rev. 25 1995NORTH DAKOTA LAW REVIEWHispanic, it should be impossible as a matter of law to showdiscrimination against Hispanics. Whatever the superficial appeal of thistheory might have been, Justice Blackmun did not stop his inquiry there.In the opinion he wrote for the Court, he took two approaches thatproved to be complementary. First, following a traditional common-lawstyle of reasoning, he compared the facts in Castaneda to those of manyearlier cases involving jury discrimination problems, and he found thatthe degree of exclusion of Hispanics before him had been condemned inthose earlier decisions. Second, in a footnote, the Justice (who had beenan honors mathematics student as an undergraduate) subjected the datato a statistical analysis, and showed that the chances of producing grandjuries with so few Hispanics in the absence of a conscious decision toexclude them were tiny. His care in probing the reality that lay behindthe facts was typical: he neither assumed that discrimination was takingplace, nor that it could not take place. Nothing but a full appreciation ofthe facts and their meaning would do.A second decision, Smith v. United States ,2 showed the same kind ofconcern about the entire context of a case. Smith involved the questionwhether mailing obscene materials in a state .that allegedly would nothave penalized their possession was an offense, and it also involved thequestion whether the jury should always judge the issue of obscenityunder the Miller v. California3 standard, if state legislation appeared toprovide a more objective standard. The Court held that sending obscenematerials through the mail was a separate federal offense, regardless ofthe particulars of the state law, and that the issue of obscenity was alwaysfor the jury. Justice Blackmun's opinion for the Court is interestingbecause it begins by cataloging exactly what kinds of materials Smithwas responsible for sending through the mails. Context mattered to him,and it did not matter whether the end result was something that outsidersmight regard as "liberal" or as "conservative."The Justice may have taken his concern with the specifics to a faultin Wolman v. Walter,4 which involved the ever-troublesome question ofthe extent to which state aid to parochial schools comes into conflict withthe First Amendment's Establishment Clause. Justice Blackmunsubscribed neither to the "absolute wall" approach, nor to the"nondiscrimination for or against religion" approach, but instead hetried scrupulously to follow the middle ground that the Court's caseshad outlined. This led to constitutional decisions about the difference2. 431 U.S. 291 (1977).3. 414 U.S. 15 (1973).4. 433 U.S. 299 (1977).[VOL. 71:25HeinOnline  -- 71 N.D. L. Rev. 26 1995VIRTUES OF INDEPENDENCEbetween putting a map up in the front of a classroom (aid to the school,which was impermissible) and distributing individual maps to desks (aidto the students, which was permissible), and a host of similar efforts atline-drawing.Naturally, over the course of an entire Term of Court there weremyriad decisions that had to be made-on petitions for certiorari, voteson argued cases, decisions to join the opinions of other Justices or towrite separately, and approaches to adopt in authored opinions.Looking only at October Term 1976, I defy anyone to label thecategory into which Justice Blackmun fit. In the area of criminal law, hehad just voted that the death penalty is not necessarily unconstitutional,in the group of cases known as Gregg v. Georgia et al.5 (The reason thathe later changed this view at the very end of his career was also typical:he had tried and tried to find some principled way to handle these cases,and had finally concluded it could not be done.) His opinion in U.S.Trust Company v. New Jersey6 breathed new life back into the ContractClause of the Constitution, and helped to set in motion an entirely newway of thinking about the freedom with which state and localgovernments can regulate, and who should bear the costs of suchregulations.At the same time, his opinions in cases like Maher v. Roe,7 andMoore v. City of East Cleveland,8 demonstrated his abiding concern forindividual freedom in the most intimate of life's decisions. These arethe views which ultimately earned him a spot on the "left wing" of theCourt in his later years there. It is worth noting, however, that heremained quite consistent in his positions on questions of criminalprocedure throughout his tenure on the Court. He appreciated thedifficulties faced by the line police officers, and he was adamantlyopposed to the imposition of unrealistic technical rules whose breachwould then trigger the application of the exclusionary rule.Independence taken to the extreme could be confused withunpredictability, but as I have written elsewhere, this would not be a faircharacterization of Justice Blackmun's jurisprudence. 9 In fact, I believethat his views of the appropriate role of the Supreme Court, theappropriate role of the federal government and its various branches, andthe appropriate role of government more generally in our societywarrant much more study. At the risk of overgeneralization and5. 428 U.S. 153 (1976).6. 431 U.S. 1 (1977).7. 432 U.S. 464 (1977).8. 431 U.S. 494 (1977).9. See Diane P. Wood, Justice Blackmnun and Individual Rights, 97 DICK. L. REv. 421 (1993).19951HeinOnline  -- 71 N.D. L. Rev. 27 199528 NORTH DAKOTA LAW REVIEW [VOL. 71:25premature conclusions, I will suggest that he gave great scope togovernment in the area of public safety and social order; his views of theregulatory state gave primacy to the legislative branch of government;and the autonomy of the individual was sacred to him-at least as longas the person was not inflicting negative externalities on those aroundher or him.I could not have suggested this at any point during the year Iworked for the Justice, and he himself appears to have developed hisjurisprudence more inductively than deductively. This, however, to mewas and is the hallmark of a judge in the truest sense of the word:someone who was unfailingly fair and courteous to the litigants beforehim, who insisted on being fully informed about the facts and the lawthat applied to the case, and who allowed his views of the law to developcarefully, step-by-step, with respect for the Constitution and the laws hewas sworn to uphold, and attention to the ever-changing factual patternspresented by a complex world.HeinOnline  -- 71 N.D. L. Rev. 28 1995

Justice Harry A. Blackmun and the Virtues of Independence

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Justice Harry A. Blackmun and the Virtues of Independence

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