Blackmun Strikes Out

Justice Harry Blackmun's majority opinion in Flood v. Kuhn, 407 U.S. 258 (1972), is famously eccentric. The case upheld baseball's "reserve clause"--the power to trade a player without his consent--on grounds that the business of baseball was an "aberration" not subject to antitrust laws. 407 U.S. at 281. Most observers are critical of Flood and speculate the Supreme Court would come out differently today. But the case is remembered "not for its holding, but for its introductory section — Justice Blackmun's encomium to the national pastime." As David Greenberg wrote in Slate:

The opinion—for which Blackmun would long be ridiculed—included a juvenile, rhapsodic ode to the glories of the national pastime, sprinkled with comments about legendary ballplayers and references to the doggerel poem "Casey at the Bat." (As the justices were bartering over their positions, Thurgood Marshall objected that Blackmun's list of all-time greats included only whites, so Blackmun added Jackie Robinson, Satchel Paige, and Roy Campanella. Marshall dissented anyway.)

In the end, though the vote was 5-3, only Justices Stewart and Rehnquist joined the first section of Blackmun's opinion.

Today, Justice Blackmun is best known for his majority opinion in Roe v. Wade a year later. As David Brooks recently observed in the New York Times:

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate.

Law Professor (and blogger) Ann Althouse disputes Brooks' interpretation of Roe, but Justice Blackmun's personal contribution to his early opinions -- symbolized by his brief stint as a sport historian in Flood -- wasn't questioned.

Until now. According to David Garrow, Blackmun's attention span was short-lived. Garrow, author of a Pulitzer Prize-winning biography of Martin Luther King, Jr., studied Blackmun's personal papers, opened to public inspection last year, five years after his death. Writing in the May-June Legal Affairs, Garrow says the Emperor has no clothes:

Blackmun's comments and case files show his clerks' involvement in his work increasing substantially during the 1980s and early 1990s. In Blackmun's final term of 1993-94, his clerks were almost wholly responsible for his famous denunciation of capital punishment in his dissent in Callins v. Collins.

This degree of clerk involvement is indefensible. Decades ago, Justice Louis D. Brandeis declared that "the reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work." Today, no knowledgeable observer of the court would make a similar claim. . .

In the case of Harry Blackmun, that sense of personal responsibility appears to have been sadly lacking. Blackmun's case files, including those for many of his best-known opinions, are replete with examples of law clerks doing far more than drafting the justice's opinions. In several of Blackmun's most notable cases, the records indicate that the justice was less familiar with the substance of his opinions than he should have been.

According to Garrow, Blackmun's majority opinion proclaiming a Constitutional right to abortion was decisively shaped by clerk Randall Bezanson (now a professor at the University of Iowa law school). Worse still is Garrow's claim that by the end of his career, Blackmun had become a glorified paralegal, whose involvement was confined to cite-checking. Garrow describes a cover-note from clerk Michelle Alexander, who now teaches at Stanford Law School, in late 1993 with what would become Blackmun's dissent from the denial of certiorari in Callins v. Collins, a death penalty case:

[S]he told Blackmun that she had revised the existing draft to remove the Gary Graham references, but explained, "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."

Garrow also details memos from Blackmun clerks speculating on how reaffirming the abortion right, as the Court did in Planned Parenthood v. Casey, 505 U.S. 833 (1992), might impact the upcoming Presidential vote and prospects for "a pro-choice nominee" to fill the next vacancy. So much for life tenure insulating judges from politics.

Reactions to Garrow's article are mixed--for example, Jim Lindgren concludes Blackmun "the talent to serve on the Court," but fellow Volokh Conspirator Oren Kerr argues that "the fact that Justice Blackmun accepted his clerks' recommendations in a few key cases doesn't tell us very much." Mark Tushnet says Garrow hasn't identified anything coming close to what he calls a "scandalous abdication of judicial responsibility." But Lindgren replies that Garrow's piece is consistent with "long heard stories from clerks on the Supreme Court in the late 1980s that by then, Blackmun was not writing his opinions, that he was diligently doing substantive cite-checking on his clerks' opinions."

Since the 1960s, the judiciary, and the nomination process, have become notoriously politicized, abandoning "neutral principles" for forced paternalism. That's because liberals started skirting the democratic process, instead pressing the Court to impose their agenda in the guise of Constitutional interpretation, inconsistent state laws notwithstanding. As Ninth Circuit Judge Diarmuid O’Scannlain observed:

[T]the disputes over this or that nominee are not an end in themselves but rather a reflection of a larger trend: The seemingly ever-increasing centrality of federal courts in our divided system of government. Indeed, on issues such as abortion, assisted suicide, affirmative action, and church-state relations, the courts have become a focal point -- perhaps the focal point -- in the . . . national debate.

Inventing new rights not part of the Constitution is bad enough. Delegating that task to a bunch of 25 year-olds is appalling. Blackman's Flood v. Kuhn opinion was both wrong and ridiculous. Not only for the reasons discussed above, but because Constitutional law shouldn't be a game.