Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 22

Justice Harry Blackmun.

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

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