Before he died Thursday at the age of 90, Harry A. Blackmun said he hoped his legacy as a Supreme Court justice would be broader than the Roe vs. Wade decision that turned abortion into a constitutional right.
Blackmun authored that decision in 1973 and, while it is true his distinguished law career was much broader than any one opinion, it is difficult not to dwell on a piece of judicial activism that has affected life in the United States in such a dramatic way.We could cite statistics about the number of abortions each year or talk about how their legalization has cheapened the value of life by allowing them as a matter of convenience. These are important aspects of the ruling that have, over time, crept into the national culture and changed things for the worse.
But perhaps it is just as instructive to look at the ruling from a legal perspective. When Justice Byron White wrote his dissent to Roe vs. Wade, he called it "an exercise of raw judicial power." He was right. The Constitution enumerates nothing close to a right to an abortion, yet Blackmun created one, sending an awesome message about the power of an unelected and unchecked judiciary.
There can be no doubt that Blackmun had a brilliant mind. Nor can anyone question his ability to challenge his own assumptions and change his long-held beliefs. President Nixon appointed him as a conservative and a "strict constitutionalist," yet he ended up as one of the most liberal justices on the court. In later years, he reversed his earlier support of the death penalty, voting against all capital punishment cases because he "no longer wanted to tinker with the machinery of death."
Perhaps this says as much as anything else about his career as a justice. He seemed to let his own feelings take precedent over constitutional review, and that is why Roe vs. Wade always will be the biggest part of his legacy.