The Greening of Harry Blackmun

By Stephen B. Burbank[*]

[Editor's Note:  This piece is a response to a forthcoming article in the Northwestern University Law Review by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal, titled Ideological Drift on the Supreme Court:  Who, When and How Important?, 101 Nw. U. L. Rev. (forthcoming 2007).  Last week, we posted an introduction to the piece by Epstein et al., 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]

Long before there was talk of a "Greenhouse effect,"[1] there was talk of Harry Blackmun changing color.  Or at least there was in the chambers of Chief Justice Warren Burger, where I was a law clerk during the October Term 1974.[2] The inspiration for the image we used to describe the 1974 Term came not from the distinguished journalist, only then beginning her career and not yet covering the Court, but from a book by Charles Reich.[3] Our view of the cause of Blackmun's metamorphosis lacked grounding in a theory more general (or elegant) than the susceptibility, particularly of the insecure, to Irish charm.  We had no doubt that Justice Brennan had made Harry Blackmun his project, and we thought (without seeking systematic empirical evidence) that the object of his attentions found them difficult to resist.  I well recall my co-clerk's remark upon seeing a letter from Justice Brennan joining, with praise that seemed excessive, an opinion by Justice Blackmun.  Noting that the join letter arrived within minutes of the opinion, he speculated that they had passed in the halls.

Justices Who Change: A Reply to Epstein et al.

By Linda Greenhouse[*]      

[Editor's Note:  This piece is a response to Epstein et al., Ideological Drift Among Supreme Court Justices:  Who, When, and How Important?, 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]            

The growing recognition by political scientists and law professors that Supreme Court Justices can and do change while on the bench is a breath of fresh air on a subject that for much too long has been in the grip of abstract academic thinking and untested assumptions.[1]

Ideological Drift Among Supreme Court Justices: Who, When, and How Important?

By Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal      

[Editor's Note:  This piece is the first in a multi-part dialogue concerning ideological drift on the Supreme Court.  Linda Greenhouse's response can be found here, Stephan Burbank's response is here, and Ward Farnsworth's response is here.]        

I. Introduction

When the U.S. Supreme Court invalidated the Bush administration’s plan to use military commissions to try enemy combatants in Hamdan  v. Rumsfeld,[1] the decision fueled more than a national debate over the powers of the President.  It also generated commentary about the ideological composition of the Court.  Conservatives proclaimed that they were just one Justice, just one vacancy, away from victory in Hamdan[2] and a handful of other recent decisions that worked against their interests.[3]  Liberals worried about just as much.[4]

Editor's Note: Colloquy Changes

We have decided to take a one-week hiatus from posting this week, which coincides with the first week of our Spring Break.  However, we would like to take this opportunity to make you, our loyal readers, aware of a few changes underway here at the Colloquy.

Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists

By Ethan J. Leib   

[Editor's Note:  This piece is a response to McGinnis and Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007) (link).]

Abstract

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government.  But they now go too far.  In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism.  This most recent piece of their project simply does not work.

In this Essay, I dispute each of their substantive claims.  First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules.  And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime.  In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention.

It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.

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Copyright 2007 Northwestern University      

Cite As:  101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 113 (2007), http://www.law.northwestern.edu/lawreview/Colloquy/2007/7/.

Persistent URL:  http://www.law.northwestern.edu/lawreview/colloquy/2007/7/      

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