Abstract
Justice Blackmun's legacy is strongly linked to two issues - abortion and capital punishment. Blackmun's opinions in these controversial areas account for much of the notion that his ideology changed while on the Court. Participants in this Symposium have reflected on these and other areas where Justice Blackmun left his mark on American law. Professor Deason explores the arbitrability cases and shows that the Court struggled - and Justices changed their minds - even in connection with relatively technical legal issues arising in non-controversial commercial contexts. One reason the Court struggles with some issues is that legal standards are (or become) inherently contradictory or confusing over time. As the law evolves, it moves in directions the Justices may not have anticipated and cannot continue to support. As a result, both the Court and individual Justices change direction. In the arbitrability cases, Justice Blackmun was one of several Justices whose approach changed as the law developed, largely through opinions authored by others. In the context of the politically-charged abortion cases, on the other hand, Justice Blackmun was the architect of the trimester framework and, later, the most vocal defender of the abortion right. Professor Kobylka notes that personal attachment to the issue, increasingly heated rhetorical style, and growing focus on egalitarianism were essential features in the development of Justice Blackmun's abortion jurisprudence. Interestingly, the nature of the abortion right was not fully appreciated even by Blackmun at the time it was first articulated. Both its privacy dimension and its role in assuring equality for women were initially subordiante to the role of the physician-patient relationship on which Blackmun focused in Roe v. Wade and Doe v. Bolton. My comments focus on the death penalty cases, responding to some of Professor Sisk's conclusions about them. As I wil show, both Professor Deason's and Professor Kobylka's observations are applicable to the death penalty cases. The availability of the Blackmun Papers aids immeasurably in scholars' attempts to understand how the law developed and what role particular Justices may have played in that development.
Recommended Citation
Martha Dragich Pearson,
Revelations from the Blackmun Papers on the Development of Death Penalty Law,
70 Mo. L. Rev.
(2005)
Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss4/9