Legal determinacy as presumptive fiction: the Blackmun papers on the primacy of life and the machinery of death.

Rice, Stephen K.

Concerns for rationality and consistency have informed contemporary legal philosophy in no small measure. So-called "non-skeptic" jurists such as Ronald Dworkin (1) and Nell MacCormick (2) have been characterized as "formalist standard bearers" for their thoughts regarding the need for logical, deductive justification in the law and the application of clear and unambiguous legal propositions. (3) Formalist sensibilities, or the "classical model" of legal decision-making, views law as integrity, that is, the consistent application of precedent by judges who decide cases on the basis of rules that justify unique results in most cases. (4) Dworkin characterizes formal legal decision-making as a "chain novel" that is passed down from one author (jurist) to the next, all the while being sustained by an implicit understanding that future voices must respect the tone, tenor, and plot of the chapters that precede it. (5) This metaphor presumes that as chapters are written, the judicial decision-making of subsequent authors is increasingly constrained. (6) But just as judicial decision-making is informed by general principles, so too does decision-making vary in the nature of the principles that a legal actor draws upon to make his/her argument.

In their critical legal-studies-based critique of formalism, legal scholars Mark Tushnet and Jennifer Jaff have identified four subsets of legal formalism: (1) classical doctrinal formalism, or principles of law drawn from controlling legal documents; (2) law and economics, or legal principles drawn from the logically consequences of rationality that manifest in scenarios of limited resources; (3) moral philosophy, or legal principles determined by principles of morality; and, (4) the sociology of professions, or principles based upon systematic observation of the actions of participants in the legal system. (7) The recently released papers of Justice Harry A. Blackmun allows legal analysts to gauge whether the formalist arguments have merit, or, to put it another way, whether the sweep of time in the U.S. Supreme Court during the last quarter of the twentieth century is best explained formalistically or by something altogether different.

Realist Critiques

Finding much of its basis in the "revolt" by Justice Oliver Wendell Holmes in his Lochner (1905) dissent and in the scholarship of Jerome Frank, Karl Llewellyn, and Herman Oliphant, legal realists have vigorously criticized formalist assumptions of strict judicial adherence to rules for much of the twentieth century. (8) As law and philosophy professor Brian Leiter explains:

 The Realists argued ... that careful empirical consideration of how
 courts really decide cases reveals that they decide not primarily
 because of law, but based (roughly speaking) on their sense of what
 would be "fair" on the facts of the case.... Legal rules and
 reasons figure simply as post-hoc rationalizations for decisions
 reached on the basis of non-legal considerations. (9)

Beginning in the 1920s, decades of research were borne in the spirit of critiquing formalist assumptions in the law, mostly through empirical analysis. Existing definitions of the law were examined for consistency with "nature" (i.e., the way law "really" operates). (10) As a consequence, realism characterizes the law as both rationally indeterminate (i.e., not justifying a unique decision based on an available class of legal reasons) and causally indeterminate (i.e., not sufficient to explain why judges act as they do based on legal reasons). One can thus characterize the primary question for realists as "why did the judge reach that result, given that law and legal reasons did not require him to do so?" (11)

The Release of the Blackmun Papers

The recent release of the Blackmun Papers provides a unique opportunity to assess extant critiques of formalism and realism in a context rarely open to public scrutiny: via the personal letters, notes, and journals of a prominent U.S. Supreme Court Justice. Even more uniquely, the timing of the release of these papers affords insight into the functioning of the Court while various principals still serve on the bench, something justices do not often permit. (12) The information cited in this study is compiled from sources housed at the Library of Congress, media accounts of those granted advance access to the Blackmun Papers (e.g., New York Times; National Public Radio), and scholarship produced soon after the release of the papers. (13) The Blackmun Papers, consisting of over a half-million items, include notes from oral arguments and conferences, draft opinions, and memoranda. They have been described as an "exhilarating" set of materials for legal scholars because they provide insight into perceptions of precedent and judicial decision-making. (14)

The Blackmun Papers on Abortion and Privacy Rights

As opposed to the monastic life of a conventional district judge, (15) the Blackmnn Papers lift the veil on a rarely seen dynamic: a community of appellate jurists who must pull, push, and compromise on the great issues of the day. Involved in several of the most important cases and controversies of the Burger and Rehnquist Courts (e.g., Pentagon Papers (1971); Watergate tapes (1974); Lee v. Weisman (1992)), Blackmun, during his tenure as an Associate Justice from 1970 to 1994, is best known for his landmark opinions in Roe v. Wade (1973) and Doe v. Bolton (1973) concerning abortion and privacy rights. Indeed, the disproportionality of Blackmun's writings in this area casts Roe as the "sigma of his judicial career--the snapshot of his legacy to the law." (16)

Interestingly, contemplations regarding abortion and privacy rights during Blackmun's tenure on the U.S. Supreme Court suggest fluidity in legal opinion, outcomes which stand in contrast to black-letter law. (17) As New York Times journalist and Blackmun biographer Linda Greenhouse proffers, during the spring of 1992 Blackmun struggled to preserve the fight to abortion as five of his colleagues voted in a closed-door conference to uphold provisions in Pennsylvania's more restrictive abortion law in Planned Parenthood v. Casey. (18) As Greenhouse explains, "[t]hen, suddenly, everything changed.... [A letter from] Justice Anthony M. Kennedy, whom Justice Blackmun had long since written off as a potential ally, arrived at his chambers. 'Dear Harry,' the letter began. 'I need to see you as soon as you have a few free moments. I want to tell you about some developments (in Casey), and at least part of what I say should come as welcome news." As the country would later learn, Kennedy had organized a group of three Republican-appointed justices (himself, Sandra Day O'Connor, and David Souter) to preserve abortion rights. As Blackmun noted after his meeting with Kennedy, "Roe sound." (19)

Was new legal information brought to bear on Kennedy during the interval, or is Greenhouse correct in her assessment that a trio of Republican-appointed justices had secretly formed a team to preserve the fight to an abortion? Group-based decision-making and consensus building raises important issues concerning judicial impartiality. Materials drafted by Blackmun law clerk Stephanie Dangel validate Greenhouse's assertion, referring to a "troika" of Justices O'Connor, Souter, and Kennedy upholding Roe: "Given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the reelection of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe." (20) Additional clerk missives indicate attention to political considerations, including the most fortuitous time to hear cases. Molly S. McUsic argued that if Planned Parenthood v. Casey were to imperil the overthrow of Roe, "it would be better to do it this year before the election and give women the opportunity to vote their outrage." (21) Such considerations smack of Holmes' century-old argument on "formalism as fiction," where judicial decisions are based less on legal reasoning than "a concealed, half-conscious battle on the question of [indeterminate] legislative policy." (22)

The Blackmun Papers also illuminate the Justice's readiness, at an earlier date than previously realized, to embrace the right to privacy as the foundation for abortion rights. (23) In 1971, two years before Roe, U.S. v. Vuitch challenged the District of Columbia's criminal abortion statute but was decided without addressing the broader constitutional issue. (24) Blackmun dictated a memo to himself: "'Here we go in the abortion field," he began, reflecting on the justices' awareness that abortion cases were increasingly making their way to the Court chamber. Blackmun then reviewed the Court's recent precedents establishing a fight to privacy for the use of birth control and the private possession of pornography. These cases, he wrote, "afford potent precedence in the privacy field," adding: "I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented in the present case. I think I could go along with any reasonable interpretation of the problem on principles of privacy." (25)

Here, one should note Blackmun's mental (read: legal) flexibility, that is, how he is willing to go along with any reasonable interpretation, a central presumption of the realist tradition (particularly Frank's assertion of "normative quietism" in law, that is, jurists who rule based on personal predilection, or "hunch-based" decision-making). (26) Even more striking is the portrait of the intersections of Blackmun's personal and professional lives. As Greenhouse explains, Blackmun's nineteen-year-old daughter Sally became pregnant in 1966, an event which caused her withdrawal from college, marriage to a twenty-year-old boyfriend, miscarriage, and subsequent divorce. "In one variation or another," Greenhouse writes, "such family traumas were hardly uncommon at a time when reliable birth control was difficult to obtain, particularly for unmarried women; when half of all pregnancies were unintended; and when some one million women a year risked sterility or death to terminate unwanted pregnancies." (27)

Realists who espouse a social-psychological model of legal decision-making argue that Blackmun's personal biography matters immensely, that "[a] truly realistic theory of judicial decision-making must conceive every decision as ... a product of social determinants." (28) Rather than view law as consisting of fundamental, a priori principles that can be applied in value-neutral frameworks, realists would very much expect Blackmun's daughter to matter mightily. In other words, law, in practice, leaves a great deal of room for life experiences to inform judicial review. (29) For realists, then, Blackmun will be forever associated with abortion and privacy law, as the architect of the trimester framework (Roe) and his ever more strident and emotional rhetorical style. (30)

The Blackmun Papers and Ultimate Sanction

Greenhouse's Becoming Justice Blackmun (2005), the most comprehensive explication on the Blackmun Papers to date, makes Roe v. Wade and Blackmun's lifelong relationship with Chief Justice Warren Burger the "twin hub" of his development as a justice. (31) But as political scientist Joseph Kobylka argues, this is a limited orientation, one that "dulls the color that fills both the canvass of his career and the Court on which he sat." (32) Among the other vivid colors, one would have to include Blackmun's involvement in matters related to the death penalty.

The death penalty holds a central place in a criminal justice system whose meaning is both symbolic and variable. (33) As opposed to the years preceding Furman v. Georgia (1972) when executions could be conducted in relative obscurity, recent calls for transparency in capital--sentencing decisions, media coverage of executions, and greater insight into condemned inmates' perceptions and experiences compliment insights gleaned from the Blackmun Papers regarding the development of death penalty law. (34) Death penalty opponents insist that "law's violence be acknowledged, not just at the extremities of the legal order, but at the center of the process in judicial interpretation." (35) It is in the process of judicial interpretation that Blackmun is criticized on the grounds that his record lacks evidence of an appreciation for the restrained role of the jurist, or of a formalist ethos. (36) While some have pointed to the years prior to Blackmun's appointment to the U.S. Supreme Court for evidence of personal opposition to the death penalty, (37) the years post-Furman and post-Gregg v. Georgia (1976) (38) provide the most ballast.

Furman (1972) and Gregg (1976) are fascinating in and of themselves as Blackmun dissented in the former, but concurred in the latter due to his belief that the issue belonged under the purview of democratic, not judicial, action. (39) In his Furman dissent, Blackmun explained that he "yield[ed] to no one in the depth of [his] distaste, antipathy, and indeed, abhorrence for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds....," and expressed his belief that the penalty violated his "childhood training and life experiences ... life convictions and sense of reverence for life." (40) When one thinks back to "formalist standard bearers" and their insistence for the logical, deductive application of unambiguous legal propositions, Blackmun's admission of "distaste, antipathy and ... abhorrence" toward the death penalty and its violation of his "life convictions" is extraordinary. One has to wonder how observers of today's Court would react if Justices John Roberts, Antonin Scalia, Clarence Thomas, or Samuel Alito were to frame their dissent of an abortion rights ruling in such a manner. As political scientist Barbara Perry speculates, the "excess daylight" that such passionate, realist, formulations would unleash might well damage the Court's authority as an enduring emblem of the rule of law. (41) In other words, the explication of strong personal views in one's opinions subordinates the law to the judge. (42)

With regard to his voting record, a more active anti-death penalty orientation marked the remainder of Blackmun's career in cases that include Lockett (1978) and Wainwright (1985). (43) The Blackmun Papers provide an interesting insight into one such case, Callins v. Collins (1994), (44) in which a denial of certiorari provided a forum for Blackmun to utter one of the more famous lines in modern jurisprudence. As Greenhouse explains:

 The project, known [among Blackmun's clerks] ... as the 'death
 penalty dissent,' had two separate parts: to draft an opinion and
 then to select a case--a 'vehicle,' they called it--in which the
 opinion could be used to best effect.... By late October, [clerk
 Michelle L. Alexander] had a draft to show Blackmun. 'This is a
 very personal dissent, and I have struggled to adopt your 'voice'
 to the best of my ability ... I have tried to put myself in your
 shoes and write a dissent that would reflect the wisdom you have
 gained, and the frustration you have endured, as a result of twenty
 years of enforcing the death penalty on this Court'.... On February
 22, 1994, the Court denied review in Callins v. Collins, over
 Blackmun's twenty-two-page solitary dissent. (45)

Consider the draft of the dissent from the Blackmun Papers (see Figure 1), including the interesting linguistic formulation of the famous edict: "I no longer shall tinker with the machinery of death." As is the case in so much of Blackmun's record, one should note his use of language. In this instance, there is nothing "mechanical" about Blackmun. Rather than focus strictly on how the penalty may violate the Eighth or Fourteenth Amendments (as in Furman or Gregg), Blackmun's emotional, moralistic argument buttresses law as explanatorily indeterminate (i.e., influenced by a jurist's moral or political persuasion).

It is reasonable to argue that over time, Blackmun's votes in death penalty cases became completely aligned with his personal views, and that the tone and tenor of his opinions became ever more egalitarian, demonstrating personalization and sympathy for the defendant. (46) In McCleskey v. Kemp (1987), (47) the well-known case that challenged Georgia's administration of the death penalty based on statistical evidence of racial disparities in sentencing, Blackmun condemned the Court's unwillingness to consider such evidence. (48) Memoranda found in his papers indicate that the subsequent execution of Warren McCleskey weighed heavily on Blackmun, and that this experience formed much of the basis for his later Callins opinion. (49)

With regard to the majority opinion, the McCleskey decision makes for a comprehensive attack on formalism itself because the ruling failed to uphold requirements outlined by Tushnet and Jaff, namely: (1) classical doctrinal formalism, (2) law and economics, (3) moral philosophy, and (4) the sociology of professions. (50) As criminologist Katheryn Russell argues, on the first point the Court could well have used its formalistic arguments to reach a contrary result. On the second point, the Court's holding was not necessary to produce a fair result within the framework of societal morality. On the third point, the Court's citation of the history of minority group claims (and suppositions of future claims were McCleskey to prevail) were largely groundless on the matter of economic efficiency in the court system. Concerning the fourth point, Russell asserts that a contrary decision would not have adversely impacted the role of the prosecutor; instead, such statistical evidence would have made burdens on the system lighter as prosecutors and defense counsel would have clearer guidelines regarding prima facie cases of discrimination. (51) All told, Court opinions and the more "three-dimensional" view afforded by the Blackmun Papers into cases such as McCleskey, Callins, and Furman provide evidence for legal realists to assert that law, in action, centers on the use of legal rules and reasons as post-hoc rationalizations for decisions reached on the basis of nonlegal considerations. (52)

[FIGURE 1 OMITTED]

A page from Justice Blackmun's draft dissent in the death penalty case, Callins v. Collins. Shown is the correction of the phrase, "I no longer shall tinker with the machinery of death." Dated November 22, 1993. (Source: Blackmun Papers, Container 648, Folder 5, Library of Congress, Washington, D.C.).

The Issue of Justice: Competing Frameworks

Attention to matters of justice is grounded in the desire to understand how social institutions and societal practices can ensure a fair distribution of advantages, or what political philosopher John Rawls has referred to as "the basic structure." (53) Determining which jurisprudential practice is more "just" depends, in large measure, on what one wishes to get out of the Court. It also calls upon observers of the Court to be mindful in employing terms from the philosophy of law. Law professor Martin Stone, for example, claims that attacks on formalism have been fraught with overstatement: "'Formalism,' it has become tempting to say, is little more than a loosely employed term of abuse, one used to describe any judicial decision, style of legal thinking, or legal theory with which the user of the term disagrees." (54) Legal analysts may criticize judges for being formalistic (rule-bound) while also trying to contain ultra vires (stepping beyond the rules). (55) The need for rapidly effective legal reform, perhaps due to the law being perceived as "out of phase" with contemporary values, might benefit from an indeterminate court structure, as would legal concerns that would benefit from more holistic sensibilities, such as therapeutic jurisprudence. (56) By contrast, perhaps "regular" (non-appellate) judicial contexts may be better suited to legal determinacy. (57)

Attempts to reconcile this tension between the impartial and personal have a long history in jurisprudence and moral philosophy. (58) Most desire clarity in legal thought, a sense of fairness, and an opportunity for justice. To Herman Oliphant, this means a return to stare decisis, or a way to restate legal doctrine in a manner that is more fact-specific and (therefore) more descriptive. (59) For H.L.A. Hart, this means a focus on the central core of legal rules in order to effectively adjudicate "easy" cases. (60) Efforts to determine which jurisprudential practice is more just requires a careful determination of one's legal goals and expectations.

On balance, a middle-range model is likely needed: judges should consider a rule's purpose and whether that aim would be emboldened or frustrated by its strict application. The "meaning" of a legal rule would then only be attainable through purposive interpretation. Evoking Judge Learned Hand, the need for a fluid, iterative process that incorporates the best of both constructs is likely necessary. (61) The Blackmun Papers provide such a palette. As opposed to mere speculation about judicial decision-making, the papers show how it actually manifests over time. (62) Whether Blackmun "changed pigment" (63) by starkly transitioning himself from a principled formalist to someone who "allowed his personal preferences full domination across the field of constitutional jurisprudence," (64) remains open to debate. (65) It is more likely that Blackmun followed the arc advanced by Justice Holmes a century earlier: that of law in action--a corpus which develops less by logic (or "law in books" (66)) than by the "felt necessities of the time." (67) While one will still find uncertainty and instability in the law in the Blackmun Papers, (68) they nonetheless provide immeasurable insight into the vagaries of abortion and capital punishment law during the last quarter of the twentieth century.

ENDNOTES

(1) Ronald Dworkin, Law's Empire (London: Fontana, 1986).

(2) Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1993).

(3) William Lucy, "Adjudication," in The Oxford Handbook of Jurisprudence and Philosophy of Law, eds. Jules Coleman and Scott Shapiro (Oxford: Oxford University Press, 2002), 208.

(4) Brian Leiter, "Karl Nickerson Llewellyn," in International Encyclopedia of the Social & Behavioral Sciences, eds. Neil J. Smelser and Paul B. Baltes (Kidlington, Oxford: Elsevier Science Ltd., 2001), 8999.

(5) Dworkin, Law's Empire, esp. 230-32, 255-57.

(6) Stefanie Lindquist and Frank Cross, "Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent," New York University Law Review 80 (October 2005): 1156.

(7) Mark Tushnet and Jennifer Jaff, "Critical Legal Studies and Criminal Procedure," Catholic University Law Review 35 (Winter 1986):361-62.

(8) Brian Leiter, "Classical Realism," in Social, Political, and Legal Philosophy, eds. Ernest Sosa and Enrique Villanueva (Boston: Blackwell Publishers, 2003), 256-57. See also Michael S. Moore, "The Semantics of Judging," Southern California Law Review 54 (January 1981):151-53.

(9) Leiter, "Karl Nickerson Llewellyn," in International Encyclopedia of the Social and Behaviorial Sciences, eds. Smelser and Baltes, 8999-9000.

(10) Good examples are Katheryn K. Russell's empirical critique of McClesky v. Kemp ("A Critical View from the Inside: An Application of Critical Legal Studies to Criminal Law," Journal of Criminal Law and Criminology 85 (Summer 1994):222-40) and Lindquist and Cross' empirical test of the role of precedent in judicial decision-making ("Empirically Testing Dworkin's Chain Novel Theory," 1156-1206). See also Karl N. Llewellyn's seminal work on the application of the Universal Commercial Code ("Remarks on the Theory of Appellate Decision and the Rules and Canons about how Statutes are to be Construed," Vanderbilt Law Review 3 (April 1950):401). Llewellyn argues that by following such a tack, the law is asserting, simultaneously, that "[a] statute cannot go beyond its text," yet also "[t]o effect its purpose a statute must be implemented beyond its text. See discussion by Leiter, "Karl N. Llewellyn," in International Encyclopedia of the Social and Behavioral Sciences, eds. Smelser and Baltes, 9000. See also James J. White, "The Influence of American Legal Realism on Article 2 of the Uniform Commercial Code" in Perscriptive Formaility and Normative Rationality in Modern Legal Systems, eds. Werner Krawietz, Neil MacCormick, and Georg Henrik von Wright (Berlin: Duncker & Humblot, 1994), 401.

(11) Leiter, "Karl Nickerson Llewellyn" in International Encyclopedia of the Social and Behavioral Sciences, eds. Smelser and Baltes, 9000. Two further delineations of realism, that of the "sociological" and "idiosyncratic" wings (associated with Llewellyn and Frank, respectively), assess social and psychological factors that frame decision-making by jurists.

(12) After retiring in 1994, Blackmun gave his papers to the Library of Congress on the condition that they remain closed to the public until five years after his death. See Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey (New York: Times Books, 2005), xi. Not surprisingly, the release of the papers so soon after Blackmun's death generated considerable debate as to "... how much we should know about what goes on at the Court, an institution long shrouded in secrecy and confidentiality." Martha Dragich Pearson and Christina Wells, "Reflections on Judging: A Discussion following the Release of the Blackmun Papers," Missouri Law Review 70 (Fall 2005):966.

(13) See Linda Greenhouse, "The Blackmun Papers: Documents Reveal the Evolution of a Supreme Court Justice," New York Times, March 4, 2004, A1. See also Linda Greenhouse, "At a Shrine of American Documents, Pathos, Poetry and Blackmun's 'Rosebud,'" New York Times, March 7, 2004, http://topics.nytimes.com/top/reference/timestopics/people/b /harry_a_blackmun/imndex.html (accessed August 14, 2007), 1-2; Library of Congress, "About the Harry A. Blackmun Papers," http://lcweb2.1oc.cgibin/faidfruquery/r?faidfr:@field(SOURCE+@blackmun+harr+a) (accessed August 14, 2007), 1; "Justice Harry Blackmun's Papers: Documents, Oral History Reveal Supreme Court's Inner Workings," http://www.npr.org/news/specials/blackmun (accessed August 14, 2007); Greenhouse, Becoming Justice Blackmun; Pearson and Wells, "Reflections on Judging," 965-72; Suzanna Sherry, "Politics and Judgment," Missouri Law Review 70 (Fall 2005):973-88; Colleen McMahon, "The Monastic Life of a Federal District Judge," Missouri Law Review (Fall 2005):989-94; Duane Benton and Barrett J. Vahle, "The Burger-Blackmun Relationship: Lessons for Collegiality from the Blackmun Papers," Missouri Law Review 70 (Fall 2005):995-1036; Tony Mauro, "Lifting the Veil: Justice Blackmun's Papers and the Public Perception of the Supreme Court," Missouri Law Review (Fall 2005): 1037-47; Gregory C. Sisk, "The Willful Judging of Harry Blackmun," Missouri Law Review (Fall 2005): 1049-74; Joseph Kobylka, "Tales from the Blackmun Papers: A Fuller Appreciation of Harry Blackmun's Judicial Legacy," Missouri Law Review (Fall 2005):1075-1132; Ellen E. Deason, "Perspectives on Decionmaking from the Blackmun Papers: The Cases of Arbitrability and Statutory Claims," Missouri Law Review 70 (Fall 2005): 1133-82; Martha Dragich Pearson, "Revelations from the Blackmun Papers on the Development of Death Penalty Law," Missouri Law Review 70 (Fall 2005): 1183-98; Richard C. Reuben, "Justice Blackmun and the Spirit of Liberty," Missouri Law Review 70 (Fall 2005): 1199-1208; Theodore W. Ruger, "Justice Harry Blackmun and the Phenomenon of Judicial Preference Change," Missouri Law Review 70 (Fall 2005): 1209-30; Daniel A. Farber, "Did Roe v. Wade Pass the Arbitrary and Capricious Test?" Missouri Law Review 70 (Fall 2005): 1231-60; Lawrence S. Wrightsman, "Why Do Supreme Court Justices Succeed or Fail?: Harry Blackmun as an Example," Missouri Law Review 70 (Fall 2005):1261-88; Margaret E. McGuinness, "The Internationalism of Justice Harry Blackmun," Missouri Law Review 70 (Fall 2005): 1289-1308; Christina E. Wells, "Some Reflections on the Symposium: Judging, the Classical Paradigm, and the Possible Contributions of Science" Missouri Law Review 70 (Fall 2005): 1309-14.

(14) Pearson and Wells, "Reflections on Judging," 965.

(15) McMahon, "The Monastic Life of a Federal District Judge," 989-94.

(16) Kobylka, "Tales from the Blackmun Papers," 1076.

(17) Black-letter law refers to law "on the books" or "the law that legislators enact, the law ... set down by the Founding Fathers ... the law that evolves through common-sense cases and through appeals decisions." See Norman J. Finkel, Commonsense Justice: Jurors' Notions of the Law (Cambridge, MA: Harvard University Press, 2001), 2.

(18) Planned Parenthood v. Casey, 505 U.S. 833 (1992).

(19) Greenhouse, "The Blackmun Papers" New York Times, March 4, 2004, A1.

(20) Mauro, "Lifting the Veil," 1044.

(21) Greenhouse, Becoming Justice Blackmun, 202.

(22) Oliver Wendell Holmes, Jr., "The Path of the Law," Harvard Law Review 10 (March 1897):467.

(23) Greenhouse, Becoming Justice Blackmun, 76.

(24) U.S. v. Vuitch 402 U.S. 62 (1971).

(25) Greenhouse, Becoming Justice Blackmun, 73.

(26) Jerome Frank, "Are Judges Human?" University of Pennsylvania Law Review 80 (November 1931): 27.

(27) Greenhouse, Becoming Justice Blackmun, 74-75.

(28) Felix S. Cohen, "Transcendental Nonsense and the Functional Approach," Columbia Law Review 35 (June 1935):843.

(29) Wells, "Some Reflections on the Symposium," 1309-14.

(30) Kobylka, "Tales from the Blackmun Papers," 1075, 1105.

(31) Greenhouse, Becoming Justice Blackmun. See also Kobylka, "Tales from the Blackmun Papers," 1075-1132.

(32) Kobylka, "Tales from the Blackmun Papers," 1076.

(33) John Hagan and Celeste Albonetti, "Race, Class, and the Perception of Criminal Injustice in America" American Journal of Sociology 88 (September 1982):329.

(34) William J. Bowers, "The Capital Jury Project: Rationale, Design, and Preview of Early Findings," Indiana Law Journal 70 (Fall 1995): 1043-1102; Henry Schwarzschild and Robert R. Bryan, "To See or Not to See: Televising Executions;' in The Death Penalty in America." Current Controversies, ed. Hugo A. Bedau (New York: Oxford University Press, 1994), 384-86; Austin Sarat, "Killing Me Softly: Capital Punishment and the Technologies for Taking Life," in Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor, MI: University of Michigan Press, 2001), 43-70.

(35) Jonathan Simon, "The Vicissitudes of Law's Violence," in Law, Violence, and the Possibility of Justice, ed. Austin Sarat (Princeton, N J: Princeton University Press, 2001), 23.

(36) Such as sentimentality and strong emotion: "There is something lawless ... about the notion that warmhearted impulses are more important than legal reasoning." See Jeffrey Rosen, "Sentimental Journey: The Emotional Jurisprudence of Harry Blackmun" New Republic, May 2, 1994, 13. See also Richard A. Posner, "Judges' Writing Styles (And Do They Matter?)," University of Chicago Law Review 62 (Fall 1995): 1447. Sisk, "The Willful Judging of Harry Blackmun," 1066.

(37) Martha J. Dragich, "Justice Blackmun, Franz Kafka, and Capital Punishment," Missouri Law Review 63 (Fall 1998):855.

(38) Gregg v. Georgia 478 U.S. 153 (1976).

(39) Sisk, "The Willful Judging of Harry Blackmun" 1050.

(40) Furman v. Georgia, 408 U.S. 238 (1972).

(41) Barbara Perry, The Priestly Tribe: The Supreme Court's Image in the American Mind (Westport, CT: Praeger, 1999), 155.

(42) Sisk, "The Willful Judging of Harry Blackmun," 1053.

(43) Lockett v. Ohio, 438 U.S. 586 (1978); Wainwright v. Witt, 469 U.S. 412 (1985).

(44) Callins v. Collins 510 U.S. 1141 (1994).

(45) Greenhouse, Becoming Justice Blackmun, 177-79.

(46) Sisk, "The Willful Judging of Harry Blackmun," 1066. See also Pearson, "Revelations from the Blackmun Papers on the Development of Death Penalty Law," 1195.

(47) McClesky v. Kemp, 481 U.S. 279 (1987).

(48) The Court, in a 5-4 decision, ruled that the statistical evidence was "clearly insufficient to support an inference that any of the decision makers in McCleskey's case acted with discriminatory purpose...." See Russell, "A Critical View from the Inside," 222-40.

(49) Pearson ("Revelations from the Blackmun Papers on the Development of Death Penalty Law," 1195) provides an excellent outline of the evidence that McCleskey's execution provided both a legal and emotional segue to the latter Callins opinion. Memoranda from the period by clerks Stephanie Dangel and Andrea Ward (found in the file of Sawyer v. Whitley, a case under consideration at the time of the execution), refer to "notes you dictated to me the morning after Warren McCleskey was executed last fall," "comments you made at breakfast shortly after the McCleskey execution last fall," and "the discussion we had earlier in the year after Warren McCleskey's execution" (Blackmun Papers, Box 604, Folder 6, Library of Congress). Blackmun's off-cited dissent in the later Callins case, which included "graphic images ... of the defendant strapped to the gurney, intravenous tubes in his arms" (Pearson, "Revelations from the Blackmun Papers on the Development of Death Penalty Law," 1197), has been thought to stem largely from Blackmun's reaction to McCleskey (Pearson, "Revelations from the Blackmun Papers on the Development of Death Penalty Law," 1195).

(50) Tushnet and Jaff, "Critical Legal Studies and Criminal Procedure," 361.

(51) Russell, "A Critical View from the Inside," 226-27.

(52) Leiter, "Karl Nickerson Llewellyn," in International Encyclopedia of the Social and Behavioral Sciences, eds. Smelser and Baltes, 9000.

(53) John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 10.

(54) Martin Stone, "Formalism," in The Oxford Handbook of Jurisprudence and Philosophy of Law, eds. Jules Coleman and Scott Shapiro (Oxford: Oxford University Press, 2002), 172. See also Ernest J. Weinrib, "Legal Formalism: On the Immanent Rationality of Law," Yale Law Journal 97 (May 1988):949; A.W. Brian Simpson, "Legal Iconoclasts and Legal Ideals," University of Cincinnati Law Review 58 (Spring 1990):819, 834.

(55) Stone, "Formalism," in The Oxford Handbook of Jurisprudence and Philosophy of Law, eds. Coleman and Shapiro, 173.

(56) Christopher Slobogin and Mark Fondacaro, "Rethinking Deprivations of Liberty: Possible Contributions from Therapeutic and Ecological Jurisprudence," Behavioral Sciences & the Law 18 (August 2000):499-516.

(57) Leiter, "American Legal Realism," 6.

(58) Margaret Moore, Foundations of Liberalism (New York: Oxford University Press, 1993), 2.

(59) Herman Oliphant, "A Return to Stare Decisis," in American Legal Realism, eds. William W. Fisher, et al. (New York: Oxford University Press, 1928), 199-201.

(60) H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). See also Brian Bix's chapter on "clear cases" in Law, Language, and Legal Determinacy (New York: Oxford University Press, 1993), 63-76.

(61) "The spirit of liberty is the spirit which is not too sure it is right." Learned Hand, "The Spirit of Liberty," in Learned Hand." The Spirit of Liberty, ed. Irving Dillard, 3rd ed. (New York: Alfred A. Knopf, 1960), 190.

(62) Mauro, "Lifting the Veil," 1037.

(63) Kobylka, "Tales from the Blackmun Papers," 1075.

(63) Sisk, "The Willful Judging of Harry Blackmun," 1066.

(64) Reuben, "Justice Blackmun and the Spirit of Liberty," 1199-1208.

(66) Roscoe Pound, "Law in Books and Law in Action," American Law Review 14 (January-February 1910): 12-36.

(67) Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, and Co., 1881; repr., Mineola, NY: Dover Publications, 1991), 1.

(68) Pearson, "Revelations from the Blackmun Papers on the Development of Death Penalty Law," 1184.