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Thursday, April 21, 2005

Justice Blackmun revisited

Legal Affairs has a new article on the Supreme Court years of the author of Roe, the late Justice Harry Blackmun. The article, drawing upon the released papers of Blackmun, documents a troubling process by which the Justice (or, according to the article, his law clerks) came to his decisions and drafted his opinions. Specifically, the article documents a trend, beginning in Roe and finally culminating in his repudiation of the death penalty in the Callins case, in which the Justice ceded much of his authority to the law clerks. The article also documents a troubling policy of allowing his law clerks to demean and demonize other members of the court. The original release of Justice Blackmun's papers led to no such indictment; in fact, quite the opposite occured. Columnists like Linda Greenhouse were quick to document the evolution of Justice Blackmun's jurisprudence, from a law-and-order conservative to a "compassionate" justice, concerned with the plight of women, minorities and the poor. As well as such compassion might play while sipping Manhattans on 35th and O Street at a swanky Georgetown cocktail party, one must question how and even whether the type of "compassion" which the late-Justice is lauded for, is a proper judicial "tool."

Justice Blackmun's journey to a more "compassionate" jurist is perhaps evidenced best by his famous dissent in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989):
Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts...Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.

The facts of the Deshaney case indeed are disturbing, and Justice Blackmun's dissent (though we must now wonder whether that passionate voice was in fact his own and not one of his clerks) pulls at the heartstrings. However, one must question whether compassion alone ought to be enough to decide a case: is a sense of morality of a judge enough to overcome settled precedent, or even unsettled precendent, or even a case of first impression. Justice Blackmun in the same case writes:
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

With all due respect to A. Stone and the practitioners of Law, Psychiatry, and Morality, human sympathy must not determine judge's decisions. As soon as sympathy becomes enough to satisfy the strictures of stating a claim, we have lost all pretense of being a government of laws and not of men. As soon as one man or woman's personal sense of right and wrong becomes the guiding principle, we lose the ability to truly say that we are a self-governing people. We are now satisfied at the whim of that judge and his sense of right and wrong, which may or may not be the same sense that we have. But in this day of continuous and contentious battles over the right to "die with dignity," the right to abortion, the right to privacy in the sexual acts we choose to engage in, and the proper role of religion in the public sphere, and where good people have fundamental moral disagreements about these issues, shouldn't we all hope that there is something more concrete guiding our unelected judges than their own view of the moral scruples of the debate. Chief Justice Rehnquist writes in the Deshaney case:
Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The Legal Affairs article is a potentially devastating indictment of Justice Blackmun's use of law clerks and the running of his chambers. If the article is right about the extent of his reliance, we must surely be worried that not only is the ultimate decision not his, but als that the sympathy and morality that is guiding his judging is not his either, but instead the "invisible hand" of a recently graduated law student. Even if the article over-reaches however, as Seth Waxman (the actual Chairman of Legal Affairs) suggests, we can still question whether compassion is a tool for deciding concrete cases.

The proper role of morality in judging is not a new question, nor is it one that was settled by Deshaney. Indeed, the issue again reared its head in the recent juvenile death penalty case. In dissent Justice Scalia declared:
Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

In the end, judging must be guided not by sympathy, but by logic, reason, and precedent. A judge must always be mindful that human sympathy can never be removed entirely from the equation, but that we are a government of laws and not of men. As such, morality and sympathy are simply not sufficient to decide concrete cases. If they are, we tread on dangerous ground, where one woman or man's sense of morality can trump the decisions that we the people have made collectively. Justice Blackmun is remembered foremost as the author of Roe; but he is also remembered as a gentle man. This new information must not only have us rethink his ultimate legacy, but should also have us question whether the psychology of human emotion and sympathy is a proper tool for judicial decision-making.

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