Justice Harry Blackmun won’t have the problem anymore. Last week, changing his position after nearly a quarter century on the court, he renounced capital punishment. “From this day forward,” he wrote in a solitary dissent, “I no longer shall tinker with the machinery of death.” Blackmun said the American system of capital punishment was unconstitutional because it was applied unfairly, arbitrarily and with racial bias; not only that, the system “must wrongly kill some defendants,” he said. His intentionally dramatic opinion came in a nondescript case out of Texas. Bruce Callins was scheduled to die for the murder of a bar patron during a robbery. The other eight justices voted to allow the execution to proceed. (Callins subsequently won a reprieve from a lower federal-court judge.)
Blackmun’s about-face means nothing legally. The rest of the court accepts the death penalty, as does the overwhelming majority of the country. The annual number of executions will likely continue in the 30-to-40 range, and the national death-row population will increase to roughly 3,000 by the year-end, the largest number in any nation in history. But Blackmun’s change has symbolic force at an institution whose power rests in part on moral suasion. Debate at the high court on the death penalty has nearly disappeared since the retirements of William Brennan Jr. and Thurgood Marshall, who both steadfastly believed the penalty was cruel and unusual.
By choosing to announce his new position in such an ordinary capital case, the 85-year-old Blackmun renewed speculation that he’s thinking of retiring soon. No justice likes going out with a whimper, and this opinion could be one of several this term in which Blackmun tries to write for the next generation. But he may also once again be placing himself in the maelstrom. Blackmun is the author of Roe v. Wade, which created the constitutional right to an abortion. His political antagonists may now cry that he coddles not only baby killers but cop killers, too. He probably doesn’t much care, as he’s grown used to abortion protesters and death threats. “Having been appointed by a Republican president and being accused now of being a flaming liberal,” Blackmun said in 1991, “the Republicans think I’m a traitor and the Democrats don’t trust me. And so I twist in the wind, I hope, beholden to no one, and that’s just exactly where I want to be.”
Whether Blackmun still wants to be in the ideological snake pit the court has become is another matter. His call for debate at the court did not go altogether unheeded. justice Antonin Scalia, writing with the flair of a figure skater and the sentimentality of a figure-skating judge, savaged Blackmun’s opinion. Scalia belittled the “poignancy” of Blackmun’s description of an execution by lethal injection. He called Blackmun’s reasoning “false, untextual and unhistorical"a nice way of saying your colleague is a dope. No one is about to silence Scalia; Blackmun must decide whether he wants to silence himself.
