The two most prominent newspaper journalists covering the U.S. Supreme Court have written biographies of two of the most prominent justices of our time. Predictably, Linda Greenhouse of the New York Times, who has written Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, and Joan Biskupic of USA Today, who recently published Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, are enthusiastic cheerleaders for the liberal social engineering of these jurists. Predictably, too, Greenhouse and Biskupic, like the justices they lionize, care not at all about the original understanding of the Constitution. Their books offer sympathetic portraits of policymakers using the “living” Constitution to subvert the historical Constitution in order to impose their vision of the good society on America.
To be sure, Greenhouse and Biskupic know the contemporary Court well. They write of its current inner workings, personalities, and rituals with clarity and comprehensive knowledge. They know nothing, however, of constitutional history and interpretation. So long as the Court reaches results that comport with the secular-liberal worldview—particularly the feminist component of that worldview—then its decisions are, so far as Greenhouse and Biskupic are concerned, sound.
Greenhouse, who was given access to all of Justice Blackmun’s papers by his family, covers a number of cases in which Blackmun, a Nixon appointee, was a central figure. The most notorious one is, of course, Roe v. Wade (1973). With this case and its companion, Doe v. Bolton, the Court, through Blackmun’s opinions, essentially constitutionalized abortion-on-demand as national policy. What remains noteworthy about Roe is its fundamental lawlessness. In the portion of the Roe opinion that attempts to construct a constitutional foundation, Blackmun’s discussion of the fictive constitutional right to privacy culminates in this cloud of ambiguity:
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
Blackmun’s own justification for the Roe decision underwent a process of radicalization over the years. Anyone who reads Roe today for the first time is struck by its intense emphasis on protecting physicians. Indeed, in many respects, the majority opinion is more about protecting them than about vindicating women’s rights. This approach is not surprising: Blackmun was the former general counsel for the Mayo Clinic. By the time he retired in 1994, however, Blackmun had “grown” ideologically and was proffering an entirely different view of Roe’s importance. At a news conference, he observed: “I think it was right in 1973, and I think it was right today. It’s a step that had to be taken as we go down the road toward the full emancipation of women.” Why the emancipation-of-women policy rationale should be a concern at all for a justice, whose work is interpreting and applying statutes and the Constitution, was not addressed by Blackmun.
It is incontestable that, when untethered from the text and history of the Constitution, judicial interpretation becomes a vehicle for the importation of ideology and judicial preference into our basic law. In what is really the only instance cited in Greenhouse’s book of a concern for original understanding, Blackmun wrote one especially candid memorandum on the issue of whether classifications based on sex should be viewed with the same degree of scrutiny as those based on race under the Equal Protection Clause of the 14th Amendment, which was a major issue before the Court following Blackmun’s appointment:
All in all, I am inclined to feel that sex can be considered a suspect classification just as race. This does not mean that every statute which makes a distinction based on sex is automatically invalid. It merely sets as the starting point the proposition that such a distinction is suspect and strong justification is needed to uphold it. There can be no question that women have been held down in the past in almost every area.
The Fourteenth Amendment approach is a fascinating one. After all, this statute stands or falls on the Fourteenth Amendment. Clearly, however, it was not intended to meet any sex differentiation when it was adopted a hundred years ago. One certainly cannot argue that had this case arisen in 1890, the Court would have held that the Fourteenth Amendment has no possible application to it. The logic of this may be a little difficult to refute. On the other hand, my own feeling is that these constitutional provisions must have some flexibility and expansiveness in them as, in theory, we ourselves progress and expand in our concepts of equality.
The repudiation of what Blackmun correctly identifies here as the original understanding of the 14th Amendment allowed the rot of feminist egalitarianism to become codified as constitutional doctrine. The defeat of the Equal Rights Amendment in state legislatures meant nothing: The objectives of that amendment have all since been incorporated in the Equal Protection and Due Process Clauses of the 14th Amendment. There is no need to amend the Constitution when the Court sits as a permanent constitutional convention, drafting the document anew each term.
Moreover, the rejection of original understanding led, in Blackmun’s case, to an embarrassing turn toward subjectivism and emotionalism. In Callins v. Collins (1994), he renounced the manifestly constitutional death penalty with this fatuous preening: “From this day forward, I no longer shall tinker with the machinery of death.” Most infamously, in DeShaney v. Winnebago County Dept. of Social Services (1989), a case that sought unsuccessfully to create an affirmative constitutional obligation on the part of government to protect a child from family violence, Blackmun, in his dissenting opinion, risibly ejaculated: “Poor Joshua!”
Blackmun’s name will forever be yoked to the rickety mess of Roe, as Chief Justice Roger Taney’s is to Dred Scott v. Sandford (1856). The tragedy of Taney’s situation is that Dred Scott sullied an otherwise distinguished tenure on the Court. By contrast, Blackmun’s willful, result-driven opinions never rose above the mediocre, and they have wrought substantial and enduring damage to our constitutional order.
As the Court’s first female member, Justice O’Connor’s work has been closely observed. (It was her sex that got her on the Court; Ronald Reagan had foolishly promised, while running against Jimmy Carter, to put a woman on the Supreme Court.) Sandra Day O’Connor’s judicial career has been characterized by unprincipled, ad hoc decisionmaking that made her the intense focus of litigants who directed their arguments to her in order to fashion a majority. (O’Connor’s jurisprudential whimsicality was the true source of the influence noted in Biskupic’s subtitle.)
Early on, O’Connor evinced strong support for the constitutionality of various abortion regulations, and she appeared to be a justice who might be willing to overturn or severely delimit Roe. But, when faced with a perfect opportunity to repair the catastrophe of Roe by reversing it in Planned Parenthood v. Casey (2000), she joined Justices Anthony Kennedy and David Souter in affirming the basic right to abortion in a joint opinion that set a new standard for judicial hubris.
O’Connor had it both ways with affirmative action as well. Initially, she was a consistent opponent of racial preferences, as demonstrated by the cogent opinion she wrote in City of Richmond v. J.A. Croson Co. (1989), which struck down the race-based award of public contracts by state and local governments under the 14th Amendment. However, when presented (in Grutter v. Bollinger, 2003) with an opportunity to rid higher education of the cancer of discrimination under the pernicious rationale of diversity that had been metastasizing since Regents of the University of California v. Bakke in 1978, she instead endorsed diversity as a legitimate and even compelling interest for universities in the admission of students.
The death penalty is yet another area where O’Connor was inconsistent. A solid supporter of the constitutionality of capital punishment in Atkins v. Virginia (2002), she nevertheless suddenly found that the execution of the mentally retarded violated the prohibition on cruel and unusual punishments in the Eighth Amendment. (Biskupic writes, without irony, that, “As ever, O’Connor was watching and listening to the people.” Maybe so; she certainly was not applying the Constitution.) When, a few years later, the Court addressed the issue of executing minors (Roper v. Simmons), she was back dissenting with the originalists—writing separately, of course, to state her own have-it-both-ways rationale—in finding that such a practice was acceptable under the Constitution.
The inconsistency runs relentlessly through all areas of her chaotic jurisprudence. In its absence of principle, its preoccupation with the spotlight by constantly positioning to be the “swing” vote, and its sheer flightiness, O’Connor’s jurisprudence reinforced, rather than undermined, stereotypes. The only really good news is that a body of decisional law so idiosyncratic will have little or no impact on future members of the Court. As Jeffrey Rosen has written: “O’Connor forces the Court and those who follow it to engage in a guessing game about her wishes in case after case. Each of her decisions is a ticket for one train only.” There is, in short, nothing of precedential value to follow.
One particularly frustrating point is that both of these enemies of ordered liberty were appointments of Republican presidents. And these were presidents who correctly made the usurpations of the Court an issue in their campaigns. Now President George W. Bush has placed Chief Justice John Roberts and Justice Samuel Alito, Jr., on the Court—two men who appear, at least, ready to join Justices Clarence Thomas and Antonin Scalia in dismantling the government-by-judiciary that Blackmun and O’Connor practiced and that Greenhouse and Biskupic celebrate.
[Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, by Linda Greenhouse (New York: Times Books) 268 pp., $25.00]
[Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, by Joan Biskupic (New York: HarperCollins) 419 pp., $26.95]