From DISSENT 23, March 23, 1999:The Trouble with Harry: Mr. Wagner’s OC Reg Opinion Piece
.....Recently, an opinion piece by new trustee Donald Wagner appeared in the Orange County Register. Wagner commemorated the passing of Supreme Court Justice Harry Blackmun by calling him “muddle-headed.” How lovely.
.....Here’s Don’s piece:
Blackmun Defined Modern Judicial Activism (Thursday, March 11, 1999)
.....When Harry Blackmun, who passed away last week, was appointed to the Supreme Court by Richard Nixon, liberals expected the worst. They derisively called Blackmun one of the “Minnesota Twins” because he was considered an ideological twin of fellow Minnesota native and long-time friend, conservative Chief Justice Warren Burger.
.....But Blackmun surprised his liberal detractors and confounded his conservative supporters. In the end, he won praise from the media and pundits as a judge who “grew” while on the bench. But only judges who abandon conservative principles in favor of a powerful activist liberal judiciary are said to “grow.” The Supreme Court does not need such growth.
.....A true Blackmun retrospective obviously begins with Roe v. Wade.
.....In fact, his 24 years on the Supreme Court were so undistinguished that he is remembered for almost nothing else. And Roe demonstrates the severe limits of Blackmun’s jurisprudence. Regardless of what one thinks of the underlying abortion issue, virtually no legal scholar defends Roe’s legal rational. Playing doctor instead of judge, Blackmun broke pregnancy down into a trimester system. Then, playing super-legislator instead of judge, he decided as a matter of public policy that abortion could not be regulated by the states during the first trimester.
.....Finally, to add insult to the injury done to the principles of limited government and separation of powers, he told us that the Constitution of all things not only recognized his trimester scheme but compelled it.
.....The truth is very different. Our Constitution is simply silent on the subject of abortion or trimesters or what the states can do about either.
.....The Constitution is very clear, though, on the reach of the government. Activist liberal judges like Blackmun grossly exceed that reach when policy-making from the bench.
.....Although Roe is justifiably the best known Blackmun decision, many other examples exist of his thoroughly muddle-headed jurisprudence. For example, in Callins v. Collins, Blackmun penned an angst-filled dissenting opinion utterly disregarding the Constitution, informing America that he would no longer vote to affirm any death penalty regardless of the facts of the case, and displaying the intellectual bankruptcy of the activist judicial philosophy. Blackman waxed “optimistic” that his less enlightened peers would ultimately recognize the errors of their own views in death penalty cases and progress to his own far-sighted view. “I may not have to live to see that day,” he prophetically moaned, “but I have faith that eventually it will arrive.“ Again, that would be called growth.
.....Blackmun’s Callins dissent underscores all that is wrong with the judicial activist. The Constitution specifically permits capital punishment. There are four textual references in the Constitution to the death penalty, which is exactly four more references than to abortion. But Blackmun ignored this textual inconvenience with a bit of judicial sleight-of-hand. He claimed that the Supreme Court has recognized two requirements necessary for the constitutional imposition of capital punishment: “consistency and fairness.” However, he argued, these two Court created requirements have proven incapable of practical application. Thus, Blackmun proposed not abandonment of the Court’s confused death penalty jurisprudence leading to this problem, but rather abandonment of the inconvenient constitutional text. To Blackmun, the Court’s own tortured historical rulings trump unambiguous constitutional language to the contrary in order to achieve the desired outcome.
.....Unfortunately, outcome-oriented sleight-of-hand is not the only weapon in the arsenal of the liberal activist judge. Blackmun turned next to evolution. He claimed that the constitution no longer means what it says because “American standards of decency…have evolved over time.” To Blackmun, that meant American standards of decency no longer permit imposition of the death penalty.
.....But such populated and geographically diverse states as California, Texas, Florida, Washington, Illinois and New York permit the death penalty. How then could Blackmun seriously argue, other than through hubris or ignorance, that “American standards of decency” have evolved away from capital punishment and that he alone on the Court has discerned this evolution?
.....Curiously, Blackmun’s Callins dissent recognized this problem but ignored completely its fatal significance to his argument and the rule of law. He noted that “most of the public seems to desire, and the Constitution appears [only “appears”?] to permit, the penalty of death,” yet he still found that evolutionary forces of some sort, and to which he alone was attentive, thwart the will of the people and the text of the constitution.
.....Express and unambiguous constitutional language meant nothing to Blackmun solely because he thought decent people should reject that language. This is judicial activism at its worst. This was Harry Blackmun’s contribution to American law.
THE WRITER: Mr. Wagner, an attorney in Irvine, is immediate past president of the Federalist Society of Orange County, an organization of conservative and libertarian judges, lawyers and law professors, and a trustee of the South Orange County Community College District.
SEE ALSO:
• Don successfully micromanages institutional memberships
