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Justice Harry Blackmun knew the majority decision he wrote in Roe v. Wade would define him more than any other act in his long career. On the occasion of his death last week, it's fitting that he be remembered for a decision that willfully distorted the Constitution as it wrote into law seven justices' preferences with respect to abortion.
Whatever their opinions on abortion, relatively few legal scholars are willing to defend the court's reasoning in Roe, which found a woman's purported right to abortion to be a matter of "privacy," guaranteed by the Constitution.
But even so gifted a judicial artist as Blackmun found it difficult to find such a right in the text of the Constitution. So he suggested it may be located, perhaps, in the 14th Amendment. He also found some support for it in the "penumbras and emanations" of the Bill of Rights.
And the fact that "psychological harm" may befall a mother who lacks the right to terminate her pregnancy was also a key part of Blackmun's argument, which sounded not so much like a judicial pronouncement as an emotional argument over the merits of abortion.
Blackmun's constitution was largely a constitution of the left, for whom victories in traditional political arenas have proved hard to win. It's a constitution designed not to restrain government, but to guarantee a self-expressive individualism at odds with the conditions of self-government.
We should grant Blackmun his wish and not remember him only for Roe v. Wade, for he wrote or joined in many other bad decisions that have undermined vital constitutional principles. His decisions over nearly a quarter century can be seen as votes of confidence not so much in individual rights as in the federal Leviathan, exercising power through Congress, or preferably, the federal courts.
After Roe, writing mostly in dissenting opinions, Blackmun supported forcing states to pay for abortions and extending "privacy" protections to homosexual conduct. He voted in 1978 to uphold racial quotas, making the paradoxical claim that equality can be attained only by treating people "differently." And in 1985, he argued for removing virtually all restraints on Congress's power under the Commerce Clause, even when exercised in ways that undercut the ability of states to act in areas obviously under their jurisdiction.
In the Supreme Court's 1992 Planned Parenthood v. Casey decision, Blackmun restated his support for abortion rights. He lamented the fact that his inevitable retirement could shift the balance on the court and result in a majority favoring a "stunted conception of individual liberty." This was Blackmun's way of dismissing a view of abortion — and the decades of legislative practice — that takes the Constitution's words seriously.
But Blackmun's worries were premature. No such majority has coalesced around his understanding of a "stunted" conception of freedom. But his concern exposes the problem with Blackmun's constitution: it's an empty vessel, whose repletion depends on the whims of individual justices.
Mainstream legal analysts and journalists have eulogized Blackmun as a justice who tried to keep an increasingly conservative court in the noble center, or as a justice who became, toward the end of his career, one of a diminishing number of voices for "civil rights." Harry Blackmun was neither, for he misunderstood where the "center" was, and denied the most important of civil rights — the right to self-government.
There is every reason to believe the decisions Blackmun made were in keeping with his own deeply held views as to what the Constitution should require. But we must question his judgment.
In the end, Blackmun's career on the high court should teach a valuable lesson. The Supreme Court is too important to the American constitutional order.
So much of vital political and moral significance ought not depend on the few judges who constitute the third branch of government. Alas, it does. The third branch is now of first — and excessive — importance. At the very least, Blackmun's death should remind Americans of the need to support presidential candidates whose Supreme Court appointees are likely to give the Constitution the respect it deserves.
