Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, April 7, 1994 TAG: 9404070336
SECTION: NATL/INT PAGE: A-1 EDITION: METRO
SOURCE: By LYLE DENNISTON THE BALTIMORE SUN
DATELINE: WASHINGTON LENGTH: Medium
That is how Blackmun has seen his job for years, that is what has led most court observers to label him a ``liberal,'' and that is why he sometimes is criticized for appearing to opt for results more than for legal principle.
Without a justice inclined that way, the court after Blackmun is likely to be seen as moving even further toward the center of the judicial spectrum - a center revolving around the idea that the law is not meant to be an engine of social reform. Reform, in that view, is primarily for legislatures, not courts.
A dozen years ago, Blackmun objected to a headline that said he ``leads the court to the left.'' He said: ``Well, we all know headlines, and that just isn't true.''
But his presence on the Supreme Court, and his view of the law as a safeguard for hapless individuals who get caught up in government rules or prohibitions, has been far more pleasing to liberals on the left than to conservatives on the right.
After the Supreme Court's self-proclaimed liberals like Justices William Brennan, William Douglas and Thurgood Marshall had departed, Blackmun remained the one justice who could be counted on to speak out and write vigorously to promote the same kinds of results. He never served on the Supreme Court with the late Chief Justice Earl Warren, but he was a philosophical heir of the decidedly liberal Warren years in the 1950s and 1960s.
Now, none of the potential nominees figuring in speculation about a new justice, and no nominee with any chance of emerging from President Clinton's selection process, would be likely to approach the task of judging according to what might be called ``Blackmun's law.''
Although Blackmun has been considered a legal scholar good at employing the language and the logic of the law, he has been stirred more often - in cases he thinks will affect the powerless or the deprived or the needy - by broad notions such as ``decency and human dignity'' or ``the precepts of civilization we profess.'' Those are social or even moral value phrases more than they are legal, and they are phrases that Blackmun has used to describe his view of law's highest function.
And, as his most predictable adversary within the Supreme Court, Justice Antonin Scalia, has complained, such phrases are so open-ended that they release justices to create, rather than follow, the law.
Those sweeping phrases do not show up routinely in the writing of the other liberal-oriented justice still sitting, John Paul Stevens. He votes often with Blackmun, but the law according to Stevens is far more disciplined, less expansive and more traditional. The Stevens view of the law, for example, kept him from following Blackmun recently into the conclusion that the death penalty could not be carried out constitutionally in any case.
The Blackmun approach is one that frequently finds government power to control individuals' lives to be wrong or even excessive, and leads more often to a kind of ``loose construction'' of the law.
It has gotten Blackmun into trouble with critics for the way it led him to view a right of privacy, only loosely anchored to actual words in the Constitution, as the basis for a woman's right to seek an abortion with only her doctor's consent.
The abortion decision, Roe vs. Wade, did not start out in Blackmun's contemplation as a profound act of constitutional creation, and he never saw it as that. His first drafts of that decision, in fact, were narrow applications of past precedent.
But, as he spent weeks closeted in the library of the Mayo Clinic in the summer of 1972, looking searchingly into the elemental bond between a woman and her obstetrician, he saw that relationship as a social equation demanding privacy against government control.
Anti-abortion forces who regard Roe vs. Wade as totally lawless have complained that the decision allows the destruction of the life within a pregnant woman's body. But Blackmun could find neither law nor philosophy to make that life pre-eminent in the constitutional equation between a woman and her doctor.
Roe vs. Wade obviously was not all that Blackmun has written in his 24 years as a justice. But no other opinions display as clearly his way of deciding.
The justice believes, as he said Wednesday, that he has not changed. Noting that he and Stevens recently joked about how they were considered the remaining liberals, he said they agreed that ``neither of us has changed; the court has changed under us.''
by CNB