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completely random
So I never actually read the Garrow piece in its entirety, but the second-hand info re: evidence that Justice Blackmun's clerks wrote all his opinions includes, in part, his "shocking" switch in the death penalty debate seen in his Callins v. Collins dissent.
Well, I don't think so. Look at his dissent in Furman, for one, written more than twenty years before Callins v. Collins - even though he's dissenting from the plurality that was abolishing the death penalty, he was doing so only because he believed to do otherwise would be judicial overreaching. He starts his dissent by writing:
"Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments."
Furman set a precedent, though, and once that precedent was set - that capital punishment could not be administered arbitrarily and with prejudice or else it violated the Eighth Amendment - Blackmun's overreaching concerns were less pressing because, well, once they've done it you can't really call it overreaching anymore - circular logic, yes, but it is not the first or last time the justices will be guilty of that.
Also, in Callins, Blackmun writes:
"Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all . . . I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after Furman was decided . . . Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence."
The problem, Blackmun explains in Callins, is that "[d]elivering on the Furman promise . . . has proved to be another matter." Despite the efforts of nearly two decades - efforts Blackmun supported in cases like Gregg, Proffit, and Jurek. [Aside - that last upheld Texas' completely mind-blowing "future-dangerousness" scheme - meaning, an assessment of the convicted's potential for future dangerousness is a required and legitimate aggravating factor at sentencing. As in, you may be sentenced to death on the basis of crimes you have not committed.]
So when Callins rolls around, and the majority denies certiorari, and Blackmun meanwhile is totally disillusioned by what he sees as totally failed efforts to make the implementation of the death penalty fit within the constitutional requirements - no, I don't think it's a shocking switch. He was saying all along he opposed the death penalty personally, and he nevertheless did what he could in the Furman to Callins span to safeguard its implementation while avoiding judicial overreaching. He has come around to the Furman principle, and believes compliance with Furman is constitutionally required, but states just aren't living up to Furman's standards. And so he declares:
"Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution."
Whether law clerks wrote the text of this is not the point - sure, it's a little disillusioning for Supreme Court groupies like me to think that powerful rhetoric like the above (and, in nonpartisan fairness, like many of Scalia's dissents) were not penned by the Justices themselves. But there is definite ideological consistency between the Furman and Callins dissents. That Blackmun is in the spirit, if not the letter, of the opinions, I have no doubt.
Well, I don't think so. Look at his dissent in Furman, for one, written more than twenty years before Callins v. Collins - even though he's dissenting from the plurality that was abolishing the death penalty, he was doing so only because he believed to do otherwise would be judicial overreaching. He starts his dissent by writing:
"Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments."
Furman set a precedent, though, and once that precedent was set - that capital punishment could not be administered arbitrarily and with prejudice or else it violated the Eighth Amendment - Blackmun's overreaching concerns were less pressing because, well, once they've done it you can't really call it overreaching anymore - circular logic, yes, but it is not the first or last time the justices will be guilty of that.
Also, in Callins, Blackmun writes:
"Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all . . . I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after Furman was decided . . . Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence."
The problem, Blackmun explains in Callins, is that "[d]elivering on the Furman promise . . . has proved to be another matter." Despite the efforts of nearly two decades - efforts Blackmun supported in cases like Gregg, Proffit, and Jurek. [Aside - that last upheld Texas' completely mind-blowing "future-dangerousness" scheme - meaning, an assessment of the convicted's potential for future dangerousness is a required and legitimate aggravating factor at sentencing. As in, you may be sentenced to death on the basis of crimes you have not committed.]
So when Callins rolls around, and the majority denies certiorari, and Blackmun meanwhile is totally disillusioned by what he sees as totally failed efforts to make the implementation of the death penalty fit within the constitutional requirements - no, I don't think it's a shocking switch. He was saying all along he opposed the death penalty personally, and he nevertheless did what he could in the Furman to Callins span to safeguard its implementation while avoiding judicial overreaching. He has come around to the Furman principle, and believes compliance with Furman is constitutionally required, but states just aren't living up to Furman's standards. And so he declares:
"Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution."
Whether law clerks wrote the text of this is not the point - sure, it's a little disillusioning for Supreme Court groupies like me to think that powerful rhetoric like the above (and, in nonpartisan fairness, like many of Scalia's dissents) were not penned by the Justices themselves. But there is definite ideological consistency between the Furman and Callins dissents. That Blackmun is in the spirit, if not the letter, of the opinions, I have no doubt.