Defending the Indefensible

Wednesday, January 22, AD 2014


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.

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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.

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  • 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.

The Worst Supreme Court Selections in American History

Friday, July 6, AD 2012

Chief Justice John Roberts’ recent decision upholding the Affordable Care Act, as well as his vote to overturn much of Arizona’s illegal immigration law, has made conservatives think that yet again a Republican president was bamboozled. Personally I think it’s a bit early to completely write off the Chief Justice. For most of his tenure he’s been a fairly reliable conservative vote, and there is still much time (presumably) before he retires. Then we will be better able to assess his legacy.

It did get me thinking, though. What are the worst Supreme Court selections in history? I’m looking at this question in terms of the president doing the selecting. Someone like Ruth Bader Ginsburg, a doctrinaire liberal, wouldn’t make the cut because no doubt she has voted in much the way Bill Clinton would have wished when he picked her. Similarly, I do not include someone like John Paul Stevens. Though over time he veered much further to the left than Gerald Ford or his Attorney General , Edward Levi (who basically made the selection) could have anticipated, Stevens’ jurisprudence was not that radically removed from Ford’s own preferences. In fact, Ford wrote of Stevens:

For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thrity years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylorand United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine’s minnows. In words perhaps somewhat less memorable then, “Shouting fire in a crowded theater,” Justice Stevens wrote, “There is something fishy about this case.”

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. I wish him long life, good health and many more years on the bench.

Well, if Ford was willing to base his legacy on his choice of John Paul Stevens, then I’m happy to call Gerald Ford a miserable failure.

This, then, is a list of the biggest mistakes in Supreme Court selection. 

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15 Responses to The Worst Supreme Court Selections in American History

  • While I like your selections, I could also see arguments for James McReynolds and Harlan Stone. I guess in both of those cases it wasn’t that the Justices evolved but that the issues before the court that would have provoked the most conflict between them and their appointers were well after the appointments. Actually that point was after Wilson and Coolidge were both deceased.

  • Warren as Attorney General of California was a driving force behind the West Coast internment or evacuation of Japanese Americans, a move opposed at the time by J. Edgar Hoover who, no joke, received an award from the American Civil Liberties Union during the War. Warren later repented of the decision many years after the War, but his actions then clearly indicated that he would never let the Constitution stand in the path of anything that Earl Warren wanted done.

  • I would have had Blackmun number one on the list. He made the Supreme Court only because he was a childhood friend of Chief Justice Warren Burger and it was thought he would vote like Burger. A man of infinite vanity and small mind, Blackmun gets my vote for worst Supreme Court justice.

  • O’Connor voted pretty reliably conservative while Reagan was in office. Reagan was badly served by Goldwater, a closet pro-abort and open Planned Parenthood backer, in regard to that appointment.

  • Souter was completely contemptible.

    “David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, inluding the work of the Supreme Court, was universal. Toughened, or coarsened, by the their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore.

    Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.”

    A left wing partisan and all around doofus, his opinions have to be read to be believed.
    Souter was a warning against a stealth candidate who turns out to be a stealth candidate for the other side. Warren Rudman, the political mentor for Souter, was a pro-abort RINO senator from New Hampshire and he knew precisely what the nation was getting with his protege:

    Souter’s view of constitutional jurisprudence given a mocking to remember:

  • O’Connor voted pretty reliably conservative while Reagan was in office.

    I believe it was Jan Crawford’s book that detailed how O’Connor moved leftward as a result of Clarence Thomas. I’m not sure how much credence to put into that, but she certainly started her leftward drift around that time.

    As for Blackmun, I wouldn’t put him above Warren only because the latter was the Chief Justice and more instrumental in transforming the Court. Also – and this is pure conjecture – but I have a feeling that Ike regretted that pick more than Nixon regretted Blackmun.

    As for who was the worst – a slightly different topic perhaps worthy of a separate post – my vote would be Thurgood Marshall. Not only was he horrid from a constitutional standpoint, but his legal reasoning never impressed me.

  • Though wasn’t it O’Connor who said in 1983 that Roe was “on a collision course with itself” because medical advances were lowering the age of fetal viability and undermining the premise of Roe that unfettered abortion was OK through at least the 2nd trimester, if not longer, because the fetus wasn’t yet viable?

  • O’Connor was all over the map throughout her career when it came to abortion. In the AZ legislature she cast pro-choice votes, but then she signaled to President Reagan her personal opposition to abortion. I think Reagan was convinced that her personal opposition to abortion would carryover into her jurisprudence – which is the same reasoning Bush employed when he first nominated Miers. O’Connor did vote to ease some of the restrictions on abortion while on the Court, but ultimately could not vote to overturn Roe itself.

  • Arthur Goldberg, once a mouthpiece for the labor union goons. Breyer, who is mediocre, clerked for Goldberg, who went on to become UN ambassador without distinction. Although Goldberg found a “right to privacy” in Griswold v. Connecticut, he’s best remembered as a vigorous opponent of the death penalty as “cruel and unusual punishment.” Another weakhearted lib on a court dominated in recent decades by pinkos.

  • Souter is a snake, a very bad man.

    Joe Biden and Rudman jumped for joy after Souter’s Casey vote, evil indeed.

  • On a somewhat smaller fiasco scale, back in the 80’s the Right To Life in our state endorced a ‘conservative Lutheran Pastor” for state assembly. We worked our tails off to get this guy elected. He did and we ended up with the most pro abortion liberal leaning representative we ever elected in this state. We had to live with that end result for many years as once he got in there we couldn’t get him out. Kind of like the SC. I guess anyone can be wolf in sheeps clothing, and the best can be snookered. Too bad millions of unborn have had to be sacrified to these bums.

  • Oh and now our very liberty. I don’t care how anyone tries to defend roberts he’s Benedict Arnold in my book.

  • Paul

    Reference Chief Justice Warren.

    I read Brown v Board of Education I.

    That is one of the worst written documents I have read (believe me I have read an awful lot of bureaucratese). Excerpt he remembered to have one imperative sentence saying Plessey was overturned one has difficulty finding meaning.

    Of course that was his first major opinion did his writing get better with time.?

    Thank you.

    Hank’s Eclectic Meanderings

  • If one looks back to an earlier period, in Jones v Opelika [319 US 584 (1942] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that he opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943) by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

    Whatever one thinks of the decision in question, such judicial capriciousness can only bring the law into disrepute. Surely, the highest court having once decided what the law is, it should be for the legislator to say what it ought to be.

  • I dunno.

    “The power to tax is the power to destroy.”

    The inexplicable Roberts fuster-cluck devastates the economy and personal liberty.

    It creates an omnipotent federal government. The law will make health costs skyrocket and hamstring the private sector.

    It will destroy jobs and consign millions to penury. It will debase the currency and lower all Americans’ living standards.

    And, they will blame Bush.