Blackmun on Roe, 14 Years Later

/ January 28, 2013 in Law # # #

Via Digby I see this 1987 interview between Bill Moyers and Harry Blackmun, former Supreme Court Justice and author of Roe v. Wade. One thing to understand about Blackmun is that despite whatever assumptions you might have about his politics, he was actually something much rarer than an activist lefty: a moderate-to-liberal Republican. Appointed by Nixon, no less! (Although, it should be said, questions as to whether or not Blackmun was palling around with Bill Ayers while writing Roe have gone ominously unanswered.)

Blackmun’s most famous decision has caught a lot of flack, not just from the Right, which is to be expected, but from ostensible non-conservatives too. The short version of  the left-of-center critique is that Roe is good policy and even better ethics—but it’s bad ConLaw. Anyway, be sure to make it to the end of the video with that tension in mind.

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5 thoughts on “Blackmun on Roe, 14 Years Later”

  3. 1. The folksy guitar strumming before the content starts is jarring.

    2. I’ve always had a soft spot for Justice Blackmun. Justices Brennan, Warren, Douglas, and Thurgood Marshall will always be liberal favorites but I think Justice Blackmun is one of the most thoughtful, most honest, and most sincere persons ever to don those black robes. I don’t agree with ever decision he wrote but as he got older he saw justice and law with a moral clarity that some of his colleagues did not. Though there were still human failings. I am sad that it took until his last written opinion to write:

    “From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies… Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come.”

    Or the most famous Blackmun quote:

    “Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles – so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” – that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve – but now are denied by this Court – the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.”

    There should always be Justice for the Joshuas.

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