Friday, January 29, 2016

Kinports on Blackmun and the Criminal Rights Counterrevolution

Kit Kinports, Penn State Law (and a law clerk to Justice Blackmun during OT 1981) has posted Justice Blackmun's Mark on Criminal Law and Procedure, which appeared in the Hastings Constitutional Law Quarterly 26 (1999): 219-70:
Justice Harry A. Blackmun (LC)
When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, was strong on law and order, and weal on civil liberties."

During the Justice's twenty-four years on the Supreme Court, his colleagues - under the leadership of Chief Justices Burger and Rehnquist - narrowly interpreted and even overruled outright a number of the Warren Court's pro-defendant rulings. Despite initial predictions about Justice Blackmun's views on criminal issues and the general tendency of Supreme Court Justices to remain loyal to the policies of the President who nominated them, the Justice would eventually be called a "swing Justice" and "a voice of reason" in criminal cases. The Justice himself, on the other hand, is fond of saying that his views never shifted, but that it was the Court that changed around him. In attempting to evaluate these various characterizations and to describe the Justice's judicial personality, as reflected in his criminal law opinions, and then turn to the role he played in the Burger and Rehnquist Courts' efforts to restrict the rights afforded criminal defendants.

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