Jewish World Review March 15, 1999 /27 Adar 5759
(http://www.jewishworldreview.com) HARRY BLACKMUN MUST HAVE written thousands of decisions during his 24 years on the Supreme Court of the United States, many of them solid ones. His opinions defending civil liberties and buttressing the separation of church and state will remain prized as long as America remains America.
He contributed his share of clinkers, too, like his dissent from freedom of the press in the Pentagon Papers case, and his opinion defending racial discrimination in college admissions -- so long as it was discrimination on behalf of the correct race.
If this had been the wide-ranging extent of his jurisprudence, Mr. Justice Blackmun would have been well enough remembered for his service on the court. He was no John Marshall, to understate the obvious, but he was a hard-working, conscientious judge with strong convictions and an ability to crystallize -- well, compress -- the muddy spirit of his times into legal opinions.
And didn't Oliver Wendell Holmes tell us that the function of law is to respond to the "felt necessities'' of the times? Well, that's what Harry Blackmun did.
In addition, to judge by the obituaries, Mr. Justice Blackmun was a modest and engaging man, learned in the law, who loved music and baseball. (His 1972 decision upholding major-league baseball's exemption from the anti-trust laws was a love song to the game. He was criticized for expressing his emotions in that decision, but any baseball fan would understand.)
That one decision still overshadows all else about the man and the judge, just as it has come to overshadow the country's moral landscape, much as Dred Scott v. Sandford did in another time.
To quote one obit that caught the flavor of most, "Blackmun guaranteed his place in the country's judicial, political and social history as the author of Roe v. Wade, the decision that established women's constitutional right to abortions.`
Another way of putting it, though it was not put that way, is that the vague words of this mild, gentlemanly judge legalized the abortion of millions. Whatever the story's slant, his name will always be linked with Roe the way Chief Justice Roger Taney's is indelibly linked with Dred Scott.
All the obsequies for Justice Blackmun brought back a recurring, almost sci-fi fantasy of mine: Suppose Dred Scott had remained the law of the land. Suppose that slavery had been preserved throughout the Union and there had been no reason for the South to secede. Suppose there had been no Civil War -- no tragic, transforming conflict between the states.
And suppose Dred Scott had remained as entrenched, even as celebrated, as Roe v. Wade is today. Oh, it might have been trimmed here and there in subsequent opinions, but the South's peculiar institution -- slavery -- would have remained essentially untouched, or might even have spread throughout the Union. Dred Scott might today be proclaimed as what it was intended to be -- the bulwark of the Union, the great guarantee of civil peace.
Yes, suppose the country had been shaped in the image of Roger Taney's jurisprudence, which decreed that slaves could be freely carried anywhere in the Union, for the rights of American citizens did not apply to Negroes. As the chief justice explained in Dred Scott, under the Constitution they were "regarded as being of an inferior order and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect.''
Suppose that, instead of his words now exciting moral horror, they were still honored as a bulwark of American rights.
Yes, there might still be some who didn't approve of slavery, and perhaps even demonstrated against it, but suppose they were outnumbered by far? Not necessarily by fervent disciples of human slavery, but by the mass of citizens who felt uneasy when the subject came up. These Americans might never own a slave themselves, but they wouldn't want to interfere with another citizen's right to own one. It was a free country, wasn't it?
So inflammatory an issue, so personal a choice, it would be explained, should be left to individual conscience, not dictated by an all-knowing state. For Dred Scott would have made it clear that slaves were only property, chattel, and as devoid of human rights as, well, as the human fetus today. Any scientific evidence to the contrary would be swept aside in favor of the citizen's right to choose.
And finally, suppose that Roger B. Taney, full of years and honors at the end of his days in a united nation that had avoided a terrible civil war, had been laid to rest. Imagine the tributes to his scholarship, his vision, his ability to command consensus on the court and keep the country at peace: "Taney guaranteed his place in the country's judicial, political and social history as the author of Scott v. Sandford, the decision that established citizens' constitutional right to hold slaves.''
Only a few doubters might have had the bad taste to point out that his words had legalized human degradation.
No matter how many other opinions, distinguished or undistinguished, that Roger Taney might have written, he would be instantly associated only with one indelible decision, as indeed he is to this day. An outnumbered band of abolitionists might continue to appeal to the American conscience, but in general the great chief justice would be hailed for one towering decision.
Just as Harry Blackmun was on his death
03/09/99:A different ‘Waterfront’