Three Wise Old Men of the Court Build a Case for Legal Compassion

Last Monday, Supreme Court Justice William J. Brennan Jr. had surgery to remove his gallbladder. He is now said to be in satisfactory condition but the event was the latest reminder that the court’s three most liberal members--Brennan, Thurgood Marshall and Harry A. Blackmun--are also its oldest and most vulnerable. All are in their 80s, and President-elect George Bush will very likely have to replace one or more.

In late November, the Supreme Court decided a case underscoring the perspective that will be lost if the court’s continuing shift to the right is strengthened by the arrival of one or more Bush conservatives. In Arizona vs. Youngblood, the justices ruled, 6-3, that prosecutors have no duty under the Constitution to preserve evidence that might prove a defendant innocent of a crime. Chief Justice William H. Rehnquist wrote for the majority, deciding that destruction of evidence denies a defendant due process of law only if he can show “bad faith on the part of the police.”

The dissenters were Brennan, Marshall and Blackmun, with the last writing for all three. “The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try,” Blackmun stated. In the minority’s view, if the try resulted in destruction of evidence that might have exonerated the defendant, his rights were violated. Blackmun commented, “It still remains a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

For students of criminal law, a comparison of the Rehnquist and Blackmun opinions yields a nice irony. Conservatives often claim that liberals on the Earl Warren court undermined the law’s integrity in the 1960s, when they invented “technical” excuses for letting off defendants and shifted the focus of legal proceedings from the basic issue of guilt or innocence. The Blackmun opinion in the Youngblood case zeroes in on the basic issue, while the Rehnquist opinion imports into due-process law a technical “good faith” exception best known from application in another area: If police relied on a defective search warrant to seize evidence, without knowing of the defect, the evidence is now considered legal under a “good faith” exception to the Fourth Amendment rule excluding illegally obtained evidence.

This irony reflects a larger truth: The Warren E. Burger court turned criminal law into a confusing patchwork, creating exceptions to constitutional protections. Contrary to popular understanding, it overturned more precedents, struck down more acts of Congress and was in other ways more activist than the Warren court. The Supreme Court’s docket during the Burger years included more cases dealing with important social-policy issues like abortion and affirmative action than it ever had before, and the justices struggled to agree on doctrine expressing the most subjective human judgments.

But the Burger court’s criminal decisions fairly represent its rulings in general. The Burger majority exchanged a bold, liberal outlook for a cautious, conservative one that deeply frustrated justices in the minority

Toward the end of the Burger years, Brennan wrote in a dissent that the Supreme Court was “increasingly irrelevant in the protection of individual rights.” Marshall and Blackmun have made similar comments. These remarks have sometimes been overstated but they help identify what will be lost when these justices are no longer on the court.

With occasional support from Justice John Paul Stevens--the court’s least predictable member--and from Justice Sandra Day O’Connor, Brennan, Marshall and Blackmun are distinguished for sharing the belief that one of the court’s highest callings is to protect individual rights.

The contributions of these justices have differed. When Blackmun arrived on the court in 1970, he quickly became known as one of the Minnesota Twins: Especially in criminal cases, his votes usually matched those of Chief Justice Burger, a personal friend for whom he had served as best man.

Within three years of his arrival, however, he had established his own identity by writing the majority opinion in the landmark abortion case, Roe vs. Wade. As the court shifted to the right, Blackmun was identified as a figure of the center, then increasingly as a justice of the left on social issues and now sometimes as a liberal even in criminal law.

Blackmun explains that he has consistently applied the same legal philosophy throughout these years--it is the court that has changed. To students of his opinions, the main thread tying them together is what Prof. Burt Neuborne of the New York University Law School calls a “jurisprudence of just deserts”--a sense of fairness particularly evident in opinions expressing empathy for the plight of the powerless.

Marshall’s empathy is even more apparent than Blackmun’s; he has made it the core of his constitutional vision. Marshall is the first black to sit on the Supreme Court, and since he became a justice in 1967 the rights of individuals who suffer because of race or poverty have been of special concern to him.

According to Prof. Mark Tushnet of the Georgetown University Law Center, he is the one justice in American history who contributed as much to constitutional law as a lawyer as he has as a judge. Marshall’s commitment to the protection of individual rights is recorded in the annals of the civil-rights movement. He became the leading advocate against court-backed racism in this country and in favor of equal opportunity under the law, which the court eventually established in Brown vs. Board of Education.

Brennan’s commitment to individual rights is built on a sense of fairness like Blackmun’s, plus a commitment to shaping enduring legal doctrine similar to what Marshall displayed most persuasively as a lawyer. Brennan ranks among the finest justices the court has known. Since his appointment in 1956, he has proven brilliant, eloquent, wily and farsighted. UC Berkeley School of Law Prof. Robert C. Post wrote that even in dissent, Brennan has helped redefine constitutional law in many areas, by replacing concepts that led to an impasse with ideas that could successfully resolve unforeseen matters as well as the case at hand.

In recent years, the public has seen a personal side of these justices in television interviews: Brennan’s determination and puckishness; Marshall’s humanity and cantankerousness, Blackmun’s kindliness and solemnity. But their published opinions reveal more.

Like Blackmun and Marshall, Brennan has ruled with empathy and compassion, plus intellectual vigor. The public value of these traits seems to have fallen during the past decade as the stock of others has risen. These traits have also caused trouble for the justices, drawing sharp attacks from the Reagan Administration, nasty mail from other irate critics-- and death threats.

But empathy and compassion aren’t just qualities of heart reflecting liberal turns of mind. They have helped shape principles representing a vision about the role of the Supreme Court and of constitutional law--about why the court and the law must, among its primary functions, protect individuals in their dealings with the government.

This is a dynamic, generous and, to many Americans, inspiring vision of law that qualifies as justice. When any of the three justices who share it is gone, the Supreme Court will be transformed--and so will this country’s law.