Blackmun as Odysseus

April 10, 1994|By SARA ENGRAM

The word ''odyssey'' was invoked more than once this week in stories about the pending retirement of Supreme Court Justice Harry A. Blackmun. The reference was to his ideological transformation from a somewhat bland Midwestern Republican who accepted capital-punishment laws -- to a man who, earlier this year, could write an impassioned attack on the death penalty. ''I no longer shall tinker with the machinery of death,'' he vowed.

Mr. Blackmun began his tenure on the court as the conservative justice whose frequent agreement with then-Chief Justice Warren Burger, a childhood friend, earned them the nickname ''Minnesota Twins.'' Since the retirement of Justices William Brennan and Thurgood Marshall, Mr. Blackmun has found himself occupying the liberal end of the court's ideological spectrum.

Justice Blackmun maintains that the transformation was not so much in his own judicial philosophy as in the makeup of the court itself. There's much truth in that analysis. Roe vs. Wade, the 1973 abortion decision for which Mr. Blackmun will be chiefly remembered, reflected a 7-2 decision by a moderate-to-conservative court.

Yet as appointments to the court moved it further to the right, Justice Blackmun found it necessary to mount a fierce defense of the decision. With the election of President Clinton, Mr. Blackmun could at last retire without risking majority support for the precedent.

Even so, changes in the make-up of the court don't make his own odyssey any less instructive about the connection between life and law.

Garrison Keillor, the Minnesotan who gained fame as the bard of Lake Wobegone, once referred to Harry Blackmun as the ''shy person's justice.'' The gentle humor of the characterization does not disguise the compliment.

Justice Blackmun, a modest man, never reveled in the arrogance of power. Rather, he was forever trying to see the cases before him in terms of flesh and blood.

Who were the people involved? Where did they live? What did these constitutional issues mean to their daily lives? Too often, .. judicial arguments sound so dry as seemingly to occupy a different planet from the worldly fray from which legal disputes arise.

It is ironic that this concern for the personal aspects of cases helped set the unassuming Midwesterner apart, turning him into a justice who will be remembered as a person, not just as a gray-head in a black robe. Yet his interest in the context of legal questions has also earned him the disdain of some colleagues and legal scholars.

Law is a matter of principle, too important to be trusted to mere feelings or influenced by personalities, some people say. It should stand apart from the passions of the day, passions that can change with the wind.

They're right; enduring justice does depend on principles, on a compass fixed toward some North Star. But justice cannot have tunnel vision either.

One of the issues in Roe vs. Wade was the matter of whether a case involving a pregnancy could still be considered after the pregnancy was over. Justice Blackmun reasoned that because pregnancy is always a temporary condition, traditional judicial views of what makes a case moot could rule out virtually any questions about pregnancy, setting up a situation in which laws about pregnancy could forever evade judicial appeals.

Many aspects of the decision -- its sweeping nature, its attempt to spell out differing degrees of state interest for various stages of pregnancy -- have been roundly criticized over the years. Moreover, if the measure of a decision is its success in quelling public controversy, Roe vs. Wade leaves a lot to be desired. But critics who focus on Justice Blackmun ought to remember the point he emphasized last week -- the fact that it reflected a solid majority of the court.

Justice Blackmun went against the advice of colleagues in acknowledging the difficulty of the issue at the outset of his opinion. That was another mark of a refreshing modesty in the face of large issues.

The court will miss this lover of justice for common people and of ordinary pleasures like baseball. Without order or justice in society, the small acts of daily life -- reading a newspaper, going to work, mingling with friends, watching children in carefree play or even watching baseball in peace -- are put in jeopardy. The law is a noble concept, and the Supreme Court exudes its own quiet majesty. But in the end the law exists to make the ordinary possible.

The lesson Justice Blackmun leaves us is that the most rewarding odysseys take us back to simple beginnings.

Sara Engram is editorial-page director of The Evening Sun. Her column appears here each week.

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