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The Death-Penalty Decision: Blackmun’s Very Public Shift

<i> David M. O'Brien is a professor of government at the University of Virginia and author, among many other books, of "Storm Center: The Supreme Court in American Politics" (Norton). </i>

Justice Harry A. Blackmun’s recent announcement that he considered the death penalty unconstitutional, and would “no longer tinker with the machinery of death,” was in many ways extraordinary. Yet, how and why he sought to draw public attention to his about-face on that red-hot political issue was singularly unprecedented as well.

Supreme Court justices rarely change their minds so dramatically. They are certainly not given to striking out on their own against colleagues or the tide of public opinion. Though barbed exchanges and personal attacks have become more common in opinions, Blackmun’s expression of personal agony over executions was unusual.

Justices rarely file dissenting opinions from the court’s denial review of cases. Those they do file usually go unnoticed. Yet, the national debate over capital punishment began more than 30 years ago with another dissent from a denial of review. In the 1963 case, Rudolph vs. Alabama, for the first time ever, Justice Arthur J. Goldberg suggested that capital punishment might violate the Eighth Amendment’s ban on “cruel and unusual punishment.” His dissenting opinion signaled lawyers to challenge head-on the constitutionality of the death penalty. It resulted in a decade-long moratorium on executions and, eventually, to the Supreme Court’s striking down of capital- punishment laws in the 1972 decision, Furman vs. Georgia.

Blackmun’s shift is all the more ironic because he was appointed in 1970 for his conservative “law and order” views by Republican President Richard M. Nixon. He dissented from the Furman ruling that existing death-penalty laws were unconstitutional because they resulted in arbitrary, capricious and discriminatory executions. In Justice Potter Stewart’s words, they are “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

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After more than two decades, Blackmun has finally come around to Stewart’s view. On other matters of criminal justice, he remains basically conservative. But death is different. And Blackmun now stands alone on the court in opposing capital punishment.

Leaving aside the issue, Blackmun’s switch appears unusual in other ways. We tend to think of justices becoming more conservative as they grow older. Felix Frankfurter, for one, was appointed by Franklin D. Roosevelt as a well-known liberal Harvard Law professor. Over the course of his career, though, he emerged as a leading conservative. Many others justices followed this path.

Other times, justices have not changed as much as circumstances overtook them. Another Roosevelt appointee, Justice Hugo L. Black, was considered the leading liberal defender of First Amendment freedoms in the 1940s and ‘50s. By the late 1960s, however, he was fighting a rear-guard action against the prevailing forces on the progressive Warren Court. The court and the country had changed--but not Black.

To be sure, justices in the past have reconsidered their positions. The view from the bench occasionally changes their perspective.

Democratic President Harry S. Truman was dumbfounded by the vote of his appointee, Justice Tom C. Clark, in the Steel Seizure case in 1952. As his former attorney general, Clark had assured Truman that he had the power to seize steel mills to avert nationwide strikes that might threaten the war effort in Korea. On the bench, however, Justice Clark voted otherwise. Justice Robert H. Jackson similarly recanted on what he had told Roosevelt when he was his attorney general, explaining, “The matter does not appear to me now as it appears to have appeared to me then.”

Life in the marble temple affords opportunities for reflection and growth--even though notions of precedent can be constraining. Deference to precedent and institutional norms incline justices to stand firm once they take a position. Nonetheless, they do occasionally switch--but usually without the drama and publicity that accompanied Blackmun’s recent move.

Indeed, Blackmun has changed his mind on other, less publicized, issues. In 1976, for example, he cast the crucial vote in a bare majority for enforcing the 10th Amendment--which guarantees the states’ “reserved powers” as a limitation on Congress. Almost a decade later, he concluded there was no basis for applying the 10th Amendment. And he voted to overturn the earlier decision. Yet, he did not strike out on his own then as he has now.

For those serving on the Supreme Court, time also brings changes in perspective. That clearly figured in Blackmun’s turnabout. Every year, he faced scores of death-penalty appeals. It wore on him and he struggled over those about to be executed--especially when they had had inadequate attorneys or, as he said, got “a runaround” in the lower courts. The “staggering evidence of racial prejudice” also took its toll on him.

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Remarkably, after more than 20 years, Blackmun concluded, “Whether a human being should live or die is so inherently subjective--rife with all of life’s understandings, experiences, prejudices and passions--that it inevitably defies the rationality and consistency required by the Constitution.” Conscience stood in the way of continuing to support what, he conceded, the Constitution permits and politicians in both parties increasingly demand.

In so publicly highlighting his reversal on capital punishment, Blackmun held himself up for criticism and ridicule. Hard-line conservatives jumped at the chance to denounce him. Justice Antonin Scalia dismissed his reasoning as “false, untextual and unhistorical.”

That Blackmun sought publicity for his switch remains at the heart of the matter. There are few comparable issues on which justices have said they erred and then sought public recognition of that. The closest was when Justice Lewis F. Powell Jr. publicly regretted casting the crucial fifth vote to uphold laws banning homosexual and heterosexual sodomy in Bowers vs. Hardwick in 1986. Several years later, he confessed, “I think I probably made a mistake in that one.” Unlike Blackmun, however, Powell spoke out after he left the court.

Blackmun’s switch and public disavowal of capital punishment appears singular in the court’s history--though not unexpected. He has been outspoken before in breaking with the court’s tradition of “judicial lockjaw,” as Frankfurter put it. His off-the-bench remarks are often frank expressions of emotion. He has repeatedly lamented over the years, for example, that he would probably take “to his grave” his authorship of the 1973 landmark abortion ruling in Roe vs. Wade.

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In December, in another dramatic break with court tradition, Blackmun appeared on “Nightline.” It was about as close as a justice comes to holding a press conference. There, he talked candidly about his disillusionment with how the system of capital punishment works. He went out of his way to set the stage for attracting as much public attention as possible to his new stand against the death penalty.

By almost any measure, Blackmun’s announcement was singular and orchestrated to renew debate. Notably, he did not come out against capital punishment on moral grounds--as had former Justices William J. Brennan Jr. and Thurgood Marshall. Instead, he emphasized his years of experience with “the machinery of death.”

Blackmun was moved by the inexorable racism that taints and the injustices that accompany the practice of capital punishment in the United States. Ultimately, he could no longer abide by the court’s underlying philosophy that sustains a system of admittedly cruel punishment inflicted only in unusual cases to satisfy society’s demand for retribution.

In his remaining time on the bench, Blackmun apparently wants to clear his conscience, letting the chips fall where they may. In reversing himself on such a politically charged issue and in such a publicized way, he certainly broke with tradition and made an unprecedented but calculated appeal to future generations.

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