Becoming Justices Blackmun and Sotomayor

On the Eve of Confirmation

As of this writing, the full United States Senate has begun deliberating the nomination of Sonia Sotomayor to become the first Hispanic and only third female justice to serve on the U.S. Supreme Court. With a majority of senators already indicating their support for the nominee, Justice Sotomayor’s appointment is all but assured, although that is very much despite some commentators’ efforts to colour her as lacking judicial restraint and engaging personal prejudices in her decisions.

Previously reviewing the biography Judging Bertha Wilson: Law as Large as Life by Ellen Anderson helped inform my opinion that “empathy” in adjudicators of rights, which Justice Sotomayor would seem to possess very amply, need not code for activism or more insidious forms of “prejudice”, but simply responsiveness to social change.  I later argued that Justice Sotomayor’s most notoriously prejudicial comment, regarding one “wise Latina woman,” is perfectly commensurate with sound judicial philosophy.

On the eve of her appointment, I am inspired to draw from another outstanding biography – Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey by Linda Greenhouse – in articulating my closing arguments in support of the historic nominee. Harry Blackmun’s own “becoming” on the high court, vividly illustrated by Greenhouse, produced several opinions that may be unequaled in their impact on contemporary social issues and policy, while reflecting a legal sensibility that seems to resemble Justice Sotomayor’s own.

Introducing Justice Blackmun

Harry Blackmun seems to transcend easy attempts at labeling – the “shy person’s justice”, “Old Number Three”, the “justice from Lake Wobegon”, the author of Roe v. Wade, No. 70-18. Each speaks to a defining aspect of Blackmun’s tenure as an Associate Justice of the U.S. Supreme Court, although they cannot but do so in a whisper without Linda Greenhouse lending her clear and confident voice to Blackmun’s story. The result is a riveting and surprisingly readable account of the man and the inner workings of his U.S. Supreme Court.

Harry Blackmun ascended from Dayton’s Bluff Elementary in small-town Minnesota to Harvard Law School, working in a St. Paul firm as well as the Mayo Clinic before Warren E. Burger, a boyhood friend from Dayton’s Bluff and appellate court justice himself, lobbied for Blackmun’s appointment to the Eighth Circuit of Appeals. It was not long after that the two men, in an improbable circumstance, were both elevated to the U.S. Supreme Court, with Burger simultaneously appointed as its Chief Justice.

His Process of Becoming

A Relationship Breaks Down

Greenhouse recounts Blackmun’s personal trajectory with the aid of his private papers, which lay bare a personality dedicated to service and always motivated to excel, although occasionally self-doubting and unable to disregard perceived slights from other justices, especially Burger.

The latter is a primary focus of Greenhouse’s narrative. Indeed, the amity that the “Minnesota Twins” enjoyed before their joint tenure, a period in which they were uncommonly close and considered by many, including Burger himself and the popular media, to be ideological doubles, contrasts starkly with the indifference and occasional acrimony between them during their tenure.

The most readily identifiable explanation for the justices’ souring is Blackmun’s profound ideological change on the high court. During his first five terms with Burger, they voted together in 87.5 percent of closely divided cases, while during their final five terms they did so in only 32.4 percent of cases. Many of those engaged social issues in which Blackmun and Burger were becoming increasingly emotionally invested, and less frequently on the same side.

Greenhouse does well to avoid a reductive attribution of the justices’ conflict to Burger’s “pompous” and “insecure” leadership style, as other authors have done. Rather, she emphasizes that both justices had trouble dissociating their professional and personal relationships in the Supreme Court context. Their sixty-year history of mutual mentorship and collaboration would seem to have created expectations in one another that neither could fulfil.

For example, Blackmun’s errant liberalism, so fundamentally at odds with the Chief’s own strict constructionist perspective, seemed to chafe at Burger’s romanticized vision of the two “doing it together.” In turn, Burger’s frequent appeals that Blackmun reconsider certain of his positions may have affected the hypersensitive junior justice unduly.

I am very thankful that Burger’s appeals did not succeed. In my view, Justice Blackmun’s more personal opinions – those freed of formalist trappings and other unnecessary abstractions – are his most persuasive.

As President Clinton said upon Blackmun’s retirement, “the habits, procedures, and the language of the law can separate lawyers from the people who look to the bar for justice.” Blackmun, an unfailingly humble and endearingly quirky man, reveals in his opinions, and especially his later opinions, a close identification with the ordinary citizens most in need of his court’s protection. I would argue that with time he became a more critical and humane justice.

An “Improbable Icon”

Blackmun’s most famous and controversial decision evincing as much – indeed, perhaps the most controversial in recent American jurisprudence – came early in his tenure. That decision is, of course, Roe v. Wade, which reads the right to privacy into the 14th Amendment’s protection of “liberty” and thereby decriminalizes abortion.

While Justice Blackmun was content in his third term to focus Roe on the rights of doctors rather than the rights of women, his views evolved and grew more impassioned over time. He staunchly defended the decision in subsequent appeals, and did so with increasingly direct and emotionally-charged language. For example, in his 22nd term Blackmun wrote for a tenuous 5-4 majority in Planned Parenthood v. Casey, No. 91-744, that,

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

What a remarkable admission from a sitting justice. Its painful appeal abandons any pretense of dispassionate neutrality, openly acknowledging that the idiosyncratic personalities of high court judges – including his own, conveyed in succinct and forceful prose – may all but determine the state of the law in certain areas. Betraying extraordinary emotional investment, it is no surprise that Blackmun became, as Greenhouse terms it, the person American women looked to “as a barometer for the status of abortion rights” and the entire women’s movement.

The Capital Dissenter

Another issue with which Justice Blackmun is closely associated is capital punishment, and his views on its constitutionality also evolved during his tenure on the Supreme Court. While he wrote in his second term to uphold death penalty statutes in Furman v. Georgia, No. 69-5003, his views  softened with subsequent appeals until the practical and ethical concerns surrounding the penalty loomed too large.

In his 23rd term, Blackmun drafted his notorious “death penalty dissent”, first appended to Callins v. Callins, No. 93-7054 and replicated in every capital appeal that followed. In that dissent, Justice Blackmun rather cryptically explains how,

[f]or more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. […]  From this day forward, I no longer shall tinker with the machinery of death.

These are similarly remarkable admissions. Blackmun’s personal prejudices, although not directly acknowledged, are clearly discernible behind his constitutional argument and reflect the justice’s rather pressing sense of regret that he defended the objectionable policy for so long.

Further, as Greenhouse so eloquently describes, it is not often that a man or woman of advanced age, in cloistered quarters, manages through the years to experience “not a narrowing, but a broadening of mind, of outlook, and of spirit” with regard to these kinds of ethical issues. And yet that is exactly what Harry Blackmun experienced.

A Recommendation for Justice Sotomayor

Upon reviewing Sonia Sotomayor’s confirmation hearings, during which some senators seemed keener to destroy than be informed, my confidence in the justice’s intellect, “empathy”, and interpretative philosophy is very much affirmed. I look forward to her full Senate vote.

My enthusiasm knows one caveat – that is, during her confirmation hearings, I believe that for political reasons Justice Sotomayor felt compelled to ascribe to a model of judicial neutrality which denigrates the value of her unique social and cultural background as a “wise Latina woman.”

Justice Sotomayor would do well to appreciate that her “prejudices”, informed by her unique background, enrich her perspectives on many legal issues. Not to reiterate my earlier argument, but I still believe that a wise Latina woman, embracing her difference, may better apprehend social policy considerations than a white man, wilfully blind to his privilege.

In navigating her new role, I recommend that Justice Sotomayor read Linda Greenhouse’s captivating biography Becoming Justice Blackmun – a remarkably human story about a man wavering in philosophy, yet possessing the courage and self-awareness to engage personal prejudices in his reasons. He became one of America’s greatest judges, and so too may Justice Sotomayor if she follows his example.