Justice Blackmun, Federalism and Separation of Powers
Dickinson Law Review, Vol. 97, pp. 541-600, 1993
60 Pages Posted: 27 Jul 2012
Date Written: 1993
On June 8, 1970, Harry A. Blackmun took his seat on the Supreme Court bench. Few then foresaw that, in the ensuing twenty-three terms of the Court, Justice Blackmun would make contributions to American law that rank no less than monumental. Justice Blackmun has become best known for his landmark opinion in Roe v. Wade and his increasingly pointed defense of libertarian and egalitarian values. During his long tenure on the Court, however, Justice Blackmun also quietly has shaped the law of constitutional federalism and separation of powers.
This reality first came to my attention in 1987, when I received an assignment to teach a class concerning the structural aspects of constitutional law. Upon delving into Gerald Gunther's casebook to prepare for the course, I was struck by how many significant opinions in this field Justice Blackmun had written. This discovery inspired a more systematic study, which confirmed my initial impression that Justice Blackmun had made sweeping contributions to the law of constitutional structures.
This paper shares and updates the findings I made in 1987. It then offers a brief commentary on recurring characteristics of Justice Blackmun's work in this field of law. In particular, I suggest that four major themes mark Justice Blackmun's votes and opinions concerning federalism and separation of powers: first, a proclivity for non-absolutist, case-specific balancing; second, an attraction to representation-reinforcement reasoning; third, a willingness to adapt to changing practical conditions and to develop views over time; and finally, a strong and growing commitment to judicial protection of the “little person” against government overreaching.
Keywords: Justice Blackmun, Supreme Court, separation of powers, federalism, balancer, representation-reinforcer, dynamic contextualist
JEL Classification: K19
Suggested Citation: Suggested Citation