Defending the Indefensible
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.”
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.