Academic journal article Journal of Appellate Practice and Process

A Sober Second Thought

Academic journal article Journal of Appellate Practice and Process

A Sober Second Thought

Article excerpt


By the year 1994--his twenty-fourth on the Supreme Court--Justice Harry Blackmun was a liberal icon, not only for his authorship and defense of Roe v. Wade, (1) but also because of his forceful dissents from many of the Rehnquist Court's right-leaning decisions in other areas. So his renunciation that year of the death penalty in Callins v. Collins, (2) while newsworthy and notable, would not have struck the casual observer as out of character or inconsistent with his jurisprudence. But from the vantage point of 1972--when Justice Blackmun was among the dissenters in Furman v. Georgia (3)--Callins could hardly be more surprising. Justice Blackmun's journey from Furman to Callins is the remarkable and instructive story of a Justice reluctantly concluding that the Court's quest for a constitutionally acceptable and administratively manageable death penalty, a quest in which he had been a principal participant, could not succeed.

The evolution of Justice Blackmun's capital jurisprudence proceeded in three stages. From 1972 until 1986, he was, to use his famous phrase from Callins, "tinker[ing] with the machinery of death," (4) seemingly convinced that if only the fight set of rules could be developed the Constitution would be satisfied--despite his personal opposition to capital punishment. The period from 1987 through 1991 can be described as one of disillusionment. Justice Blackmun became more receptive to petitioners' arguments in capital cases and increasingly voiced skepticism about the constitutional adequacy of purported safeguards against arbitrariness, racism, and factual error. The final phase, from 1991 until his opinion in Callins in 1994, was one of dismay. Justice Blackmun dissented in every significant capital case, and spoke out more sharply against the direction that the Court was taking.

Justice Blackmun identified three fundamental concerns in Callins that led him to give up on the death penalty. The primary one was the impossibility of reconciling the constitutional requirements that capital sentencing be both individualized and non-arbitrary. The insidious influence of race added to the problem. And the evisceration of the safeguard of habeas corpus pushed him across the line. In retrospect the development of each theme is visible in his decisions on capital cases from the 1970s to the 1990s.


Justice Blackmun's personal feelings about the death penalty were never any secret. In Furman he wrote a separate dissent to offer a set of "somewhat personal comments":

   Cases such as these provide for me an excruciating agony
   of the spirit. I yield to no one in the depth of my distaste,
   antipathy, and, indeed, abhorrence, for the death penalty,
   with all its aspects of physical distress and fear and of
   moral judgment exercised by finite minds. That distaste is
   buttressed by a belief that capital punishment serves no
   useful purpose that can be demonstrated. For me, it violates
   childhood's training and life's experiences, and is not
   compatible with the philosophical convictions I have been
   able to develop. It is antagonistic to any sense of
   "reverence for life." Were I a legislator, I would vote
   against the death penalty for the policy reasons argued by
   counsel for the respective petitioners and expressed and
   adopted in the several opinions filed by the Justices who
   vote to reverse these judgments. (5)

But when considering the legal arguments in Furman, Justice Blackmun was acutely conscious of his role as a judge:

   I do not sit on these cases, however, as a legislator,
   responsive, at least in part, to the will of constituents. Our
   task here, as must so frequently be emphasized and reemphasized,
   is to pass upon the constitutionality of
   legislation that has been enacted and that is challenged.
   This is the sole task for judges. We should not allow our
   personal preferences as to the wisdom of legislative and
   congressional action, or our distaste for such action, to
   guide our judicial decision in cases such as these. … 
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