Defending the Indefensible

 

Harry Blackmun

 

 

My old legal ethics (Yeah, I know, attorneys are taught ethics?) professor, Ron Rotunda, has a fascinating opinion piece in the Chicago Tribune recalling a time in 1994 when he was in a small group that heard the late Justice Harry Blackmun defend his decision in Roe v. Wade:

 

 

Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.”  With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”  When White announced his dissent, “White was emotional.”  Blackmun asked rhetorically: “Why was White so strong against my view?  His upbringing in modest circumstances?  Or his wife’s influence?” 

It did not occur to Blackmun that White based his dissent on the court’s precedent.  Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.”  Blackmun did not give that presumption to White.

Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive”  and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.  In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.”  Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization.

Go here to read the rest.  Blackmun was put on the Court by Nixon only because Blackmun was a childhood friend of Chief Justice Warren Burger and it was assumed by Nixon and Burger that Blackmun would follow Burger’s lead.  Alas, Blackmun, to Burger’s dismay, quickly drifted left, and he and Burger became enemies, barely speaking to each other by the time Burger retired from the court.  Blackmun’s opinion in Roe is classic Blackmun:  confused, long winded, shaky to non-existent scholarship and completely result oriented.  It is fitting that the worst decision of the Supreme Court since Dred Scott v. Sanford was authored by perhaps the worst Justice ever to sit on the Court.

20 Responses to Defending the Indefensible

  • A shallow man or a fraud. Who can tell?

  • There in a woefully insufficient supply of ammunition.

  • “White was emotional.”

    The word chutzpah immediately springs to mind, especially considering Blackmun’s partial concurrence in Casey, an opinion completely devoid of any legal reasoning but filled with overwrought panic about the devastation and destruction that would occur were his Roe opinion overturned.

  • Instead of punishing the rapist, Oliver Wendell Homes, in Buck v. Bell had the victim sterilized. In punishing the victim for the criminal’s act, Roe v. Wade and Buck v. Bell are the same.

  • The innocent suffer when the guilty are not punished.

  • You don’t get it Paul. When the Anointed want something it is ‘a matter of principle’. When the rest of us want something, it’s an ‘emotional issue’. (h/t Thomas Sowell, of course).

  • Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.” Pretty cute.

  • With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”

    Yeah, whatever. A legend in his own mind. He’s lucky Whizzer didn’t dropkick his @$$.

  • Blackmun probably went over to the liberal side of the Court largely over vanity. The newspapers loved calling him and Burger the Minnesota Twins and assumed that he would be a puppet for Burger. A small, petty man’s wounded pride helped bring about the monstrosity of Roe.

  • “Or his wife’s influence?” I don’t know for sure what he meant by that. But I sure hate hearing some one slam an opponent by suggesting that he is controlled by his wife…really I guess impugning the guys manhood, ridiculing him and all women at the same time.

  • “Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.”….”
    .
    One wonders the outcome if medical doctors recognized that their duty of care was to mother and child and that the injunction “Primum non nocere”…First, Do No Harm…applied to both.
    .
    Perhaps 58 million + aborted babies would be alive today.

  • I was at a American Public Health Association meeting where Blackmun was the guest of honor. He was fawned over and got a standing ovation from most attendees. He spoke of how he had spent hours in the Mayo Clinic library researching the issue of when life begins. Had fetal ultasound been available, all his sophistry would have crumbled.

  • Blackmun didn’t even understand the law, let alone fetal development. A good demonstration of just how bad Roe is as a judicial opinion purporting to construe the constitution is the late John Hart Ely’s The Wages of Crying Wolf: A comment on Roe v. Wade. Professor Ely, a supporter of legal abortion, is absolutely devastating in his analysis of the decision. The article is available online as a PDF. Ely summed it all up in one sentence: “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.”

  • Blackmun didn’t even understand the law, let alone fetal development.

    Richard Nixon delegated the vetting of judicial appointments to John Mitchell, a municipal bond lawyer. Mitchell’s pratfalls in this function with regard to Supreme Court appointments were severe enough that the task was reassigned….to John Dean, erstwhile congressional committee counsel, protege of Richard Kleindienst, and the least distinguished person to occupy the position of ‘counsel to the president’ in the last four decades (Dean’s career in private practice had consisted of less then two years as an associate at a communications law firm, a post from which he was dismissed for misconduct). Between the two of them, Mitchell and Dean coughed up two candidates vulnerable on the question of race relations, one Florida judge whose mediocrity was well-known, two provincial trial lawyers with no experience on the bench, and an assistant attorney-general with no experience on the bench. They allowed a committee of the American Bar Association to veto one of their other candidates for ‘inexperience’; that particular candidate was a sitting federal judge in late middle age.

  • Roe disenfranchised every American male of his seed, a body part, that no Court or another person can claim to own, absolute tyranny over the human body.

  • And they brought the fight to us! We didn’t want to have to set aside our entire lives fighting to overturn this decision. It is the stupidest, most vile waste of time and the lives of 56 million babies and all of their generations to follow. There is no excuse for any of this. It was pre planned. PERIOD! I have spent thousands of hours and thousands of dollars over the last 40+ years. Every thing we have done in our lives since January 22, 1973 has been focused around meetings, rallies, conventions. I still to this day feel like this is a bad dream I can’t wake up from. Nothing makes sense to me. There was nary a word at our Masses concerning the Right To Life! Britt Hume did an excellent job with his commentary the other night, but the fact remains we have this scourge and we are sorely lacking the kind of leadership we needed not only to lead but to encourage. Who was it that felt that a court of people should rule when life begins? I feel like Charlie Brown, “blah, blah, blah, blah, blah.

  • “He was pleased that a “New York Times editorial was in favor,” …”

    Paging John Roberts.

  • “Who was it that felt that a court of people should rule when life begins?” If the baby were not alive, the baby would not grow and abortion would not be necessary if the child were not alive.

  • “Who was it that felt that a court of people should rule when life begins?”
    The one who claims he was not alive when his life began.

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