Justice Harry Blackmun and the Phenomenon of Judicial Preference Change

Abstract

Judges, even Justices of the Supreme Court, are human and I suppose attitudes change as we go along." 2 We are fond of putting our judges into neat adjectival boxes, particularly when they sit on the Supreme Court.These typologies often reflect perceived attitudinal or ideological preferences; some Justices are called "liberal" or "conservative" or "moderate," or occasionally some hyphenated combination thereof.Or the labels might seek to capture variations in jurisprudential philosophy or method, such as "formalist," "pragmatist," "originalist," "textualist," or "minimalist."No Justice is immune from this classification game, and the subject of this symposium is an apt example.From the moment of his nomination by President Nixon in 1970, Harry A. Blackmun attracted a bevy of predictive characterizations, many of which now seem almost quaint in their wrong-headedness.Contemporary court-watchers described the new Justice as "consistently . . . on the conservative side of the issues," 3 a jurisprudential twin of Chief Justice Warren Burger, and, in the ultimate compound taxonomy, a "White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs." 4

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