The Willful Judging of Harry Blackmun

Abstract:     
Although admirers describe Justice Harry Blackmun as the conscience of the Court, on closer inspection this appears to mean little more than that they agree with his political views as enshrined in Supreme Court opinions. The appellation of conscience in this way either is meaningless, amounting to nothing more than an expression of political affinity, or else is largely misplaced and misconceived by reason of the special nature and restrained purpose of the judicial role. Being a zealous warrior on behalf of a political agenda is an odd understanding of conscience, which ordinarily is understood to encompass fundamental principles that call one to account even when one's preference is to act differently. Instead, a well-formed judicial conscience draws upon the rule of law, is manifested by adherence to neutral principles and impartial procedures, and embraces humility lest a decree improperly override democratic governance. There is little evidence that Harry Blackmun regularly felt or finally accepted a conflict between his preferences and his judicial opinions; indeed the general thesis of this essay is that he failed to fully appreciate that there is properly a difference between them. With further background revealed in his released papers and oral history, Justice Blackmun's opinions on the central constitutional controversies of our time are better described as acts of will than as acts of conscience.

Keywords: Supreme Court, Justice Blackmun, Constitutional Law, Judging

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