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Blackmun's legacy

"Blackmun's legacy" Continued...

Issue: "What is art?," March 20, 2004

Justice Blackmun's attempts to shape social policy from the bench weren't limited to abortion. During his high-court tenure, he evolved into a stalwart foe of the death penalty. One result, also contained in his papers, was a boilerplate opinion opposing capital punishment and authored, apparently, by clerks. The opinion, written in advance of any actual case before the court, contained blank spaces in all the key places. Eventually Justice Blackmun filled in the blanks and filed the opinion as a dissent in Callins vs. Collins, a 1994 case that denied review of the death sentence for Texas prisoner Bruce Callins.

The 17 hours of Koh interviews included in the Blackmun collection reveal the jurist as unapologetic for his quintessentially liberal concern for society's "outsiders"-immigrants, prisoners, homosexuals, and Native Americans. He didn't mind the criticism that he often ruled from his heart rather than from any interpretation of legal issues surrounding a case.

"The Supreme Court has taken upon itself the role of the superlegislature," notes National Right to Life's Douglas Johnson. "The corrective is only going to come through appointment of jurists who are willing to limit the exercise of their power to the legitimate judicial role of enforcing the actual text and history of the Constitution. When jurists like Blackmun feel they have the power and the right to impose on society their own opinions by fiat, it's a threat to representative government, as well as the right to life."

Both pro-life and pro-abortion groups agree that the central message of the Blackmun papers' release involves politics: "We cannot afford to let another out-of-the-mainstream nominee get through," said NARAL Pro-Choice America's Kate Michelman. Or as Mr. Johnson put it: "Elections matter."

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