Crimes of the heart

It came out strongly and repeatedly in coverage of the late Harry A. Blackmun's life and career that the author of the majority opinion in Roe v. Wade had been subjected to scurrilous criticism for the decision, and that, no, of course, he hadn't enjoyed such an experience, yet, at the worst times, his convictions had remained unshaken.

Roe v. Wade, Mr. Justice Blackmun affirmed again and again in his latter years, off the bench and on it, was right. Couldn't we see that? Perhaps not. Well . . . history would vindicate the court's magisterial insight-that the right to privacy compasses the right to abort unborn human life, a right so fundamental no legislative body should ever again undo it. Was that plain enough?

Yes, the sentiment was. The reasoning behind the sentiment? That was something else. As a matter of fact, the twain-sentiment and reasoningseemed hardly to meet at all. There appeared a radical disconnection between the two.

That disconnection, and its power to alter the social, political, and moral landscape, remains Harry Blackmun's judicial legacy.

When Blackmun retired from the Supreme Court, in 1994, he was the most liberal of jurists, the most interventionist in temperament, the least willing to sit by while legislatures did things of which he disapproved personally. He had come to exemplify what Jeffrey Rosen, appraising his career in the New Republic, called "the jurisprudence of sentiment." Roe v. Wade, both as to spirit and implications, remains the ne plus ultra of that jurisprudence, wherein learned judges follow their noses and their hearts toward the result they seek.

Less sentimental judges, though endowed with noses and hearts of their own, seek rather to follow the trail left by previous courts: originating in the constitutional text and for the most part carefully marked on judicial maps. The heart may tug one way and the law point another. The law prevails.

This is because Law itself rests on a fundamental premise-that a statute enjoys validity only when the governed, speaking through their elected representatives, give their consent. To give law (jus dicere) is no part of a judge's mission. The judge is to scrutinize the laws others have given; on raising his eyes, he is to say what a particular law means in practice or, more rarely, whether it squares at all with the supreme law; that is, the Constitution. A judge is entitled to think a particular law bad or unfortunate, but if the enactment of such a law lies within the legislative branch's prerogative-well, there is little more to be said, judicially speaking.

Blackmun and the court majority, in Roe v. Wade, stood this historic assumption on its head. Not in blatant fashion, you understand; not without a demonstration of legal scholarship, which Blackmun put together after many days in the library of the Mayo Clinic, whose counsel he once had been. Roe v. Wade used the paraphernalia of the law-footnotes, citations, and so onto subvert the stability of law itself. All this for sentiment.

When Harry Blackmun joined the court in 1970, he was considered an ideological twin of Chief Justice Warren Burger, his fellow townsman (Minneapolis) and longtime buddy. President Nixon had appointed both men as part of his design to turn the court away from loose construction of the Constitution, as practiced by the Warren Court, and especially by justices like William J. Brennan and William O. Douglas.

The shy and modest Blackmun, despite his friendship with Burger, was a curious choice for such an assignment. Though a declared Republican, appointed to the appeals bench by President Eisenhower, Blackmun was one of those woolly establishment Republicans who agree as often with the Democrats as with their party's conservatives. For instance, he quietly supported liberal Democratic Sen. Hubert Humphrey and apparently found nothing strange about so doing. On the other hand, Nixon's two previous choices for the vacant court seat, Clement Haynsworth and G. Harrold Carswell, had bombed in the Senate. Nixon was growing desperate.

Desperation, as almost anyone knows, breeds recklessness. Blackmun was confirmable; that was all, seemingly, that counted. Roe v. Wade, handed down in Blackmun's third year on the court, demonstrated quickly enough the perils of blind faith in presidential appointees.

Let us recall the state of abortion law at that time. Abortion, to begin with, was purely a state question; state legislatures resolved the matter according to their own lights. Prior to Roe v. Wade, restrictive abortion laws were still on the statute books of 44 states. Texas, where the case originated, and 36 other states as well, permitted abortion only to save the mother's life. Where had the states derived their mission to the unborn? From the presumption that unborn life merited protection. What stood against such a presumption? Harry Blackmun and his six colleagues soon told us what stood against it: the right to privacy.

"The Court has recognized," Roe v. Wade said, "that a right of personal privacy or a guarantee of certain areas or zones of privacy, does exist under the Constitution . . . This right of privacy, whether it be founded in the 14th 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." The seven justices might not be sure where the constitutional right of privacy made its home, or exactly what size it was. They were sure of this: such a right existed.

There is no compelling reason to rehash Roe v. Wade at this great remove in time. Its defects as law, leave aside social policy, remain as identified clearly on Jan. 22, 1973, and ever since. No one has put it more cogently than Mr. Justice White, in dissent: The decision amounted to "an exercise of raw judicial power." The court sought a particular end. To achieve that end, it spoke to Americans in the manner of Yul Brynner, playing Ramses II in The Ten Commandments: "So let it be written; so let it be done."

More interesting for purposes suggested by the death of Justice Blackmun is what Blackmun's Roe opinion says about modern judicial method. It says there is not much method; intention outranks technique.

What made Blackmun so adamant about asserting, then defending against all odds, the right of an American to do in her unborn baby? The obituaries addressed that question only obliquely. They suggested for a fact that somewhere along the line Blackmun had changed. He had gone to Washington a somewhat sheltered species of middle-class manhood. Then, for one experiential reason or another, his eyes opened. He saw and recognized what he took for human distress; so seeing, so recognizing, he wanted to help.

Blackmun's pilgrimage from Nixon Republican to Earl Warren-ite, said University of Virginia Law Professor A.E. "Dick" Howard, was "a journey less of the mind than the heart." The heart had reasons that the Blackmun reason knew not one blessed thing about. It had, moreover, a loud voice. It spoke insistently. To its promptings Blackmun replied with ever-increasing fervor.

Blackmun was a Harvard Law School graduate, conversant with the apparatus of legal argument. He had served, moreover, on a federal appellate court. The heart, he cannot have failed to understand, did not govern. Still, if a man knew what he was doing, and what result he wanted, the law was no necessary barrier to an affair of the heart. If anything, the law could become an instrument of others' conversion. It could establish the heart's standard as the national norm.

This, Blackmun achieved in some measure through Roe. Not perfectly. Seven Supreme Court justices are not a force large or powerful enough to overthrow several thousand years of moral and religious understanding. The critical mail Blackmun received after Roe showed him as much. He was called "murderer," "butcher of Dachau," "Pontius Pilate." Wrote one feverish correspondent: "I am praying for your slow, torturous death." Such gentle epistles never ceased. No Supreme Court decision, not even Brown v. Board of Education, generated the mail that Roe did. Toward Blackmun personally there were more pointed threats. Fourteen years ago, someone fired a gun into his Arlington, Virginia, apartment. The gunman was never identified; his motives, to many, seemed plain enough.

It is reasonable to assume that this sort of thing scared Blackmun less than it fortified his view of Roe's rightness. How could Roe not be right if so many on the other side spoke so much evil? This lent his own side a touch of the heroic-". . . For so persecuted they the prophets which were before you."

Blackmun's experience-to speak parenthetically-should caution the more vitriolic adherents of any cause that conversions never are worked through anger, violence, and hatred; they are worked through love and concern.

But, of course, it remains fair to say that Roe was not just any gardenvariety outrage. This one involved human life: worse yet, innocent (allowing for Original Sin) human life. Such a consideration seems to have escaped Blackmun entirely, notwithstanding his scholarly investigation of the matter. In Roe, as written, the right to privacy trumped the right to life.

Blackmun's convictions in the matter underwent steady evolution. Roe v. Wade is no shrieking feminist opinion, but its author became convinced that it gave women no more than the respect and consideration due them. At the judge's funeral, his daughter Nancy spoke of how "the single mothers he knew personally in his formative years created an awareness of the burdens women bear alone." This awareness, she said, was "reflected in the kind of thinking about women's needs and rights found later" in Supreme Court decisions.

On his retirement, Blackmun declared Roe v. Wade "a step that had to be taken as we go down the road toward the full emancipation of women." Such a viewpoint contradicts his own insistence that Roe was not about morality but instead about constitutional law. If it had been about constitutional law, Blackmun and his colleagues might have acknowledged the federal judiciary's helplessness regarding a matter historically reserved to the states' jurisdiction. The heart, not the lawbook, ruled in this instance. We were going to have a moral outcome-moral by the standards of seven unelected federal jurists. Who said so? The seven federal jurists.

The morality-on his own terms-of Roe v. Wade became something of an obsession with Blackmun. Perhaps this was due in part to the vehemence of the opposition the decison excited: not least to the letters he got. Whatever the case, Roe became his pride and joy: a robust, bouncing, full-term baby, against whom nothing was to be said.

When, in 1992, it appeared that the Reagan appointees to the high court were about to engineer a reversal of Roe, the proud father despaired. Then, in Planned Parenthood v. Casey, the court, by a single vote, stepped back, as Blackmun reckoned it, from the abyss, sustaining instead of voiding Roe's "essential holding." Joy and release flooded Blackmun's being. "Just when many expected the darkness to fall, the flame has grown bright," he wrote. Yet he was checked in his transports: "I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light. I am 83 years old. I cannot remain on this court forever." Abortion was his cause. Thither that pulsating heart had led him. No result other than the affirmation of a right to abortion was acceptable.

When came the time at last for Blackmun to step down, in 1994, the shortterm, if not the long-term, future seemed secure. Bill Clinton, who believed abortions should be "safe, legal, and rare," had been chosen president. Clinton would not betray the cause, would he? Not that cause. Blackmun's successor on the Court, Stephen Breyer, albeit no jurist of the heart, lacks any disposition to interfere with "the emancipation of women." (Interestingly, Clinton's first appointee to the Supreme Court, Ruth Bader Ginsburg, found no favor with Blackmun. Says Jeffrey Rosen: "Blackmun never forgave Ginsburg for criticizing the scope of Roe in the 1980s; he peevishly refused to interview her law clerks for his own clerkships and, according to several intimates, was less than elated by her nomination [in 1993].")

Another thing is notable about the jurisprudence of sentiment in addition to its startling effects on the right to be born. That thing is the frequency with which Blackmun allowed it to spill over the dam, into a variety of areas not directly connected with abortion. Blackmun's heart tugged him, prodded him, cut off his retreat.

On the "women's rights" question, Blackmun found it shocking, in 1991, that manufacturers with "fetal protection policies" could be allowed not to hire pregnant women. Speaking for a 6-3 majority, Blackmun once more trumped the unborn child. Employers might take into account "only the woman's ability to do her job," not the effects of that job on her unborn child. Decisions concerning "the welfare of future children" were hers and hers alone.

Capital punishment litigation effected yet another conversion experience.

Not long before his retirement, Blackmun wrote in a 22-page dissent from a death penalty appeal that "From this day forward, I no longer shall tinker with the machinery of death." Why not? Because "the death penalty experiment has failed." That capital punishment could be administered fairly was the merest "delusion"; the whole procedure was "inherently subjective, rife with all of life's understandings, experiences, prejudices and passions." A decision to execute defied "the rationality and consistency required by the Constitution." Blackmun read the dissent in a tone of near-anguish. No brother or sister justice joined in this cri de coeur.

One thing was especially curious about Blackmun's newfound enthusiasm for lives the state proposed to take. It was the way he apparently differentiated between lives of this sort and the sort thrown away in an abortion clinic. The former sort excited in Blackmun's heart a rush of fellow feeling, the latter no discernible feeling at all-at least none discernible in his writings about abortion. For Blackmun, the father of three daughters, a man married to the same woman for 62 years, life inside the womb seemed to have little if any meaning. Seemed, I say, because the inner workings of the heart are necessarily invisible. Did Blackmun, in the the still watches of the night, wonder-and if so how much did he wonder-about the quality of unborn life? All one can say is that his public utterances betray no hint of any wrestling. Publicly his conscience seemed clear. Abortion was A Good Thing.

After Roe, Blackmun became protective of homosexuals' asserted rights. He could not bear it that Georgia should receive continued license (Bowers v. Hardwick, 1986) to prosecute sodomy. That "individuals," he wrote, "define themselves in a significant way through their intimate sexual relationships with others suggests, in a nation as diverse as ours, that there may be many 'right' ways of conducting those relationships. . . " What such an observation had to do with constitutional law remained an open question.

A former teacher of constitutional law, Bill Clinton, was ready enough, given his intellectual congruence with Blackmun, to consecrate the judge's insights. "Every decision and every dissent [of Blackmun's]," Clinton commented when his new soulmate died, "was firmly grounded in the Constitution he revered and his uncanny feel for the human element that lies just beneath the surface of all serious legal argument."

That may be as prepossessing a case as can be made for what a former pastor, at his funeral, called Blackmun's "creative fidelity." Accent on "creative." With Blackmun the perpetual quest was not to find out what his predecessors, and their civilization and his, had believed about a particular point of law. The quest was to square law itself with the restless aspirations of the modern age. What enough people want, Blackmun seemed to reason, the Supreme Court is obliged to give them! At least provided those people can show themselves to be members of a caste or sex long suppressed, smothered, now anxiously awaiting liberation. Whether, say, a society of AngloSaxon males, however numerous, could have laid its concerns before him, one can't say objectively. Objectivity in any case is an odd word to use in talking of Harry Blackmun. Nothing could have been less objective-rooted, that is, in external circumstance-than Blackmun's jurisprudence. Mr. Justice Blackmun was par excellence the subjectivist, straining observations and, above all, feelings through his judicial filter. The heart trumped the mind, the senses the eyes. What matter if many, in bygone times, had believed something different than Blackmun now believed? What matter if many still did-and regarded their viewpoint as right and logical? These were not vested with the power to enforce their convictions. That power lay in the hands of people like-Harry Blackmun. Given such power, he was bound to use it. In the service of his own convictions. His own: the ones that counted. His own: those that others would obey if he and enough others said so.

The jurisprudence of sentiment, it should be obvious, is less sweetly sentimental than it seems; no gentle mid-morning sunshine bathing it, no melodious twittering of birds. Backing it up is the mailed fist. The jurisprudence of sentiment cannot recognize or adhere to overarching standards: certainly not to the Constitution, a document of another age, composed and promulgated by men who never suspected the womenfolk might hanker for emancipation. Adhering, in the old-fashioned manner, to a higher standard of worth, a touchstone of value, would negate human "development."

Jurists promoted to our nation's highest court, as was Harry Blackmun, much to his surprise, profess devotion to the constitutional text. However, such devotion applies in a special way-not to dry words and precedents but to spirit and feeling; the sense, always stirring within the best of us, that things, however good they may be, can always be made better. These jurists-Harry Blackmun was their exemplar-practice "creative fidelity."

What is new in all this? Not all that much for the last couple of centuries. Harry Blackmun was a late-blooming child of the Enlightenment, which exalted feeling over fact, the internal over the external. What was truth? that was-to be seen. Meanwhile, there was one priceless touchstone-the heart. Subjectivity beat down objectivity horse, foot, and dragoons.

Roe v. Wade-from which the name of Harry Blackmun will always be indisseverable ("I'll carry this one to my grave," he said, with prophetic force)-has resulted in loss of life unprecedented in peacetime. Since the decision was handed down, 26 years ago, 38 million abortions have taken place in the United States. An unknown number of these would have occurred in the absence of such a decision; many more, probably, would not have.

The exact number ascribable to the Supreme Court's Roe jurisprudence is not the present issue. The issue is the style of that jurisprudence-sleek, patronizing, ultimately despotic and overbearing: our hearts describing what yours might understand, were yours more sensitive and acutely tuned.

The great crimes of modern times, from the French Revolution through the Holocaust and beyond, have been crimes of the heart-that same heart characterized in scripture as "deceitful above all things." No abiding truths are assumed to exist in this modern world of ours. Truth simply. . evolves, sometimes with the help of a good two-handed shove from behind.

In such a world, the kind Roe v. Wade ordains and reinforces, "free choice" flourishes; qualities of a self-effacing sort, such as duty and responsibility and reverence and sacrifice, get lost in the shuffle. Pride rules-that same pride which notoriously goes before a fall. Harry A. Blackmun, one likes to think, cannot have meant all this to be so. Meaning a thing to be so is different, of course, from helping materially to make it so.

William Murchison, our senior editor, is a nationally-syndicated columnist at the Dallas Morning News and a popular speaker on a wide range of current religious and cultural issues. His latest book is There's More to Life Than Politics, out last fall from Spence Publishing Company (Dallas).

Copyright Human Life Foundation, Incorporated Spring 1999
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