Document Type
Commentary
Publication Title
Missouri Law Review
Publication Date
2005
Volume
70
First Page
1289
Abstract
(Excerpt)
Throughout the symposium we have heard a host of adjectives to describe Justice Harry Blackmun and his jurisprudence, among them "willful," "liberal," "conservative," and "humble." Added to this list is what Professor Ruger calls "the ultimate compound taxonomy" for Justice Blackmun, a "'White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.'" One adjective that is conspicuously missing is "internationalist," a term that describes an important, though less discussed, dimension of Justice Blackmun and his jurisprudence. Internationalism is, in part, reflected in Justice Blackmun's "preference change" or shift from "relatively conservative to relatively liberal." At the same time, internationalism defies most traditional judicial typologies.
That Justice Blackmun as internationalist has been at best a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. A review of Justice Blackmun's time on the Court, for example, reveals only nine cases in which foreign or international law sources are discussed in a Blackmun-authored majority, concurring, or dissenting opinion. Nonetheless, an examination of those opinions, as well as of Justice Blackmun's best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn.
This comment is intended to provide a roadmap for closer examination of the Blackmun Papers and to evaluate the sources of internationalism in Justice Blackmun's opinions. An understanding of those sources can in turn inform typologies of internationalism among other Justices, past, present, and future. It seems particularly salient to be discussing the internationalist aspects of Justice Blackmun's legacy today, at a time when the Court is deeply divided on questions of executive power over foreign affairs, the relevance of foreign and international political practices and judicial opinions to constitutional interpretation, and the extent to which decisions of international tribunals are binding on U.S. courts. Justice Blackmun's appeal to the broad interests of the international community and to the universality of human rights echoes throughout these contemporary debates.
Comments
Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss4/14/