Legal determinacy as presumptive fiction: the Blackmun papers on the primacy of life and the machinery of death.

• Author: Rice, Stephen K.

Concerns for rationality and consistency have informed contemporary legal philosophy in no small measure. So-called "non-skeptic" jurists such as Ronald Dworkin (1) and Nell MacCormick (2) have been characterized as "formalist standard bearers" for their thoughts regarding the need for logical, deductive justification in the law and the application of clear and unambiguous legal propositions. (3) Formalist sensibilities, or the "classical model" of legal decision-making, views law as integrity, that is, the consistent application of precedent by judges who decide cases on the basis of rules that justify unique results in most cases. (4) Dworkin characterizes formal legal decision-making as a "chain novel" that is passed down from one author (jurist) to the next, all the while being sustained by an implicit understanding that future voices must respect the tone, tenor, and plot of the chapters that precede it. (5) This metaphor presumes that as chapters are written, the judicial decision-making of subsequent authors is increasingly constrained. (6) But just as judicial decision-making is informed by general principles, so too does decision-making vary in the nature of the principles that a legal actor draws upon to make his/her argument.

In their critical legal-studies-based critique of formalism, legal scholars Mark Tushnet and Jennifer Jaff have identified four subsets of legal formalism: (1) classical doctrinal formalism, or principles of law drawn from controlling legal documents; (2) law and economics, or legal principles drawn from the logically consequences of rationality that manifest in scenarios of limited resources; (3) moral philosophy, or legal principles determined by principles of morality; and, (4) the sociology of professions, or principles based upon systematic observation of the actions of participants in the legal system. (7) The recently released papers of Justice Harry A. Blackmun allows legal analysts to gauge whether the formalist arguments have merit, or, to put it another way, whether the sweep of time in the U.S. Supreme Court during the last quarter of the twentieth century is best explained formalistically or by something altogether different.

Realist Critiques

Finding much of its basis in the "revolt" by Justice Oliver Wendell Holmes in his Lochner (1905) dissent and in the scholarship of Jerome Frank, Karl Llewellyn, and Herman Oliphant, legal realists have vigorously criticized formalist assumptions of strict judicial adherence to rules for much of the twentieth century. (8) As law and philosophy professor Brian Leiter explains:

The Realists argued ... that careful empirical consideration of how courts really decide cases reveals that they decide not primarily because of law, but based (roughly speaking) on their sense of what would be "fair" on the facts of the case.... Legal rules and reasons figure simply as post-hoc rationalizations for decisions reached on the basis of non-legal considerations. (9) Beginning in the 1920s, decades of research were borne in the spirit of critiquing formalist assumptions in the law, mostly through empirical analysis. Existing definitions of the law were examined for consistency with "nature" (i.e., the way law "really" operates). (10) As a consequence, realism characterizes the law as both rationally indeterminate (i.e., not justifying a unique decision based on an available class of legal reasons) and causally indeterminate (i.e., not sufficient to explain why judges act as they do based on legal reasons). One can thus characterize the primary question for realists as "why did the judge reach that result, given that law and legal reasons did not require him to do so?" (11)

The Release of the Blackmun Papers

The recent release of the Blackmun Papers provides a unique opportunity to assess extant critiques of formalism and realism in a context rarely open to public scrutiny: via the personal letters, notes, and journals of a prominent U.S. Supreme Court Justice. Even more uniquely, the timing of the release of these papers affords insight into the functioning of the Court while various principals still serve on the bench, something justices do not often permit. (12) The information cited in this study is compiled from sources housed at the Library of Congress, media accounts of those granted advance access to the Blackmun Papers (e.g., New York Times; National Public Radio), and scholarship produced soon after the release of the papers. (13) The Blackmun Papers, consisting of over a half-million items, include notes from oral arguments and conferences, draft opinions, and memoranda. They have been described as an "exhilarating" set of materials for legal scholars because they provide insight into perceptions of precedent and judicial decision-making. (14)

The Blackmun Papers on Abortion and Privacy Rights

As opposed to the monastic life of a conventional district judge, (15) the Blackmnn Papers lift the veil on a rarely seen dynamic: a community of appellate jurists who must pull, push, and compromise on the great issues of the day. Involved in several of the most important cases and controversies of the Burger and Rehnquist Courts (e.g., Pentagon Papers (1971); Watergate tapes (1974); Lee v. Weisman (1992)), Blackmun, during his tenure as an Associate Justice from 1970 to 1994, is best known for his landmark opinions in Roe v. Wade (1973) and Doe v. Bolton (1973) concerning abortion and privacy rights. Indeed, the disproportionality of Blackmun's writings in this area casts Roe as the "sigma of his judicial career--the snapshot of his legacy to the law." (16)

Interestingly, contemplations regarding abortion and privacy rights during Blackmun's tenure on the U.S. Supreme Court suggest fluidity in legal opinion, outcomes which stand in contrast to black-letter law. (17) As New York Times journalist and Blackmun biographer Linda Greenhouse proffers, during the spring of 1992 Blackmun struggled to preserve the fight to abortion as five of his colleagues voted in a closed-door conference to uphold provisions in Pennsylvania's more restrictive abortion law in Planned Parenthood v. Casey. (18) As Greenhouse explains, "[t]hen, suddenly, everything changed.... [A letter from] Justice Anthony M. Kennedy, whom Justice Blackmun had long since written off as a potential ally, arrived at his chambers. 'Dear Harry,' the letter began. 'I need to see you as soon as you have a few free moments. I want to tell you about some developments (in Casey), and at least part of what I say should come as welcome news." As the country would later learn, Kennedy had organized a group of three Republican-appointed justices (himself, Sandra Day O'Connor, and David Souter) to preserve abortion rights. As Blackmun noted after his meeting with Kennedy, "Roe sound." (19)

Was new legal information brought to bear on Kennedy during the interval, or is Greenhouse correct in her assessment that a trio of Republican-appointed justices had secretly formed a team to preserve the fight to an abortion? Group-based decision-making and consensus building raises important issues concerning judicial impartiality. Materials drafted by Blackmun law clerk Stephanie Dangel validate Greenhouse's assertion, referring to a "troika" of Justices O'Connor, Souter, and Kennedy upholding Roe: "Given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the reelection of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to...