Harry Blackmun is still considered a liberal icon, among liberals and conservatives. But he was a lifelong Republican. And he was more conservative than some people realize. President Eisenhower nominated Blackmun to the United States Court of Appeals for the Eighth Circuit on On August 18, 1959. And when the, also very conservative, Republican president Richard Nixon nominated Blackmun to Supreme Court April 15, 1970, he joined the conservative wing of the court. He always held that true obscenity was not protected by the First Amendment, though he believed enforcement of those laws stopped on your front doorstep. And he supported the death penalty, until he came out against it in 1994 finally saying "I no longer shall tinker with the machinery of death". He once said in 1991 "Republicans think I’m a traitor and Democrats don’t trust me. So I twist in the wind, owing allegiance to no one, which is precisely where I want to be". Republicans thought he was a traitor because of Roe. And Democrats didn't trust him because in criminal cases he usually sided with the police and prosecutor. Unless he saw a great abuse of their power there.
Also, people thought Harry Blackmun was radical and out of the mainstream for things like Roe. But actually the idea of substantive due process was well established by late nineteenth century (ironically some people think the 1857 Dred Scott opinion might have been one of the first cases of this). And the idea of privacy was first brought up by Associate Justice Louis Brandeis in an 1890 essay. But the idea is obviously much older than that. Found in things like the Fourth and even Third Amendment. And Sir Edward Coke in 1604, when he said a man's home is his castle. Castle meaning, you can't just start walking around the King of England's castle, looking at and taking stuff. So why should the state do that to you? In "The Right to Privacy" by Caroline Kennedy, she talks about how that right actually began as a group of decisions in the late 19th and early 20th century. Even in the 1920's, there were Supreme Court cases like Meyer v. Nebraska and Pierce v. Society of Sisters dealing with home life and how you choose to raise your children. So it's really the original intent judges who are radical and activist. They want to overturn over a hundred years of precedent with there own bizarre ideology. And they don't even follow it that closely, if they don't want to. Like in 1989 when Scalia redefined what it means to follow the original meaning of the Constitution in the flag burning case. Saying that political forms of expressive speech always take precedent, and using the meaning the common person at the time would give to the First Amendment in 1791. Scalia was the first original intent judge appointed to the Supreme Court in 1986. And some think it's still out of the mainstream, even though a clear majority now are too. It was revealed in the media in 2018 when Brett Kavanaugh to the Court, that original intent judges claim to follow only the words and original meaning of the Constitution. But they also believe in the doctrine of super precedent, which is basically how Roe was upheld for all these years anyways, until they overturned it. And as the DC v. Heller gun rights case shows, even original intent judges don't have to follow their own ideology, or even precedent really, when it conflicts with their political party.
Harry Blackmun was a Republican. All is life. He never switched parties. Though he felt pretty disgusted with the Republican party towards the end, he'd tell people. And he was very conservative. Yes he was, yes he was, yes he was. Well, like Oliver Wendell Holmes on the Supreme Court, he was what they called a "principled conservative", whatever that means. He and Chief Warren Burger saw more or less eye-to-eye at first. But then Burger became more of what Ted Kennedy called a "caveman conservative". In other words, really, more an idiot than a true conservative, even. Then that wasn't good enough. Starting with George W. Bush, all the SCOTUS nominees had to be original intent. All of them, they said. Even though that never happened before, and they are still way out of the mainstream. (Though they just "faithfully" interpret the Constitution. No they don't.) But the originalists are no good for some modern Republicans. It's that damn document, the Constitution. It keeps getting in the way. So now some think they should only interpret the Bible. Even though there's nothing about that in the, well, Constitution. @ssholes.
Some people say that the Constitution doesn't have a right to privacy because it's not mentioned by name. Well, they couldn't include every word. Just the most important ones. Many of the rights in it, like the right to a presumption of innocence when accused of a crime, are obvious or implied. And the right to privacy is implied, or sometimes stated, by the First, Third, Fourth, Fifth, Ninth and 14th Amendments. The word "privacy" is more recent. I guess. It goes back to an essay in 1890 by Louis Brandeis. 1890, how further back do you want to go? And even when he was on the court, they defined how this right protects fundamental decisions of family and home life. In cases like Meyer v. Nebraska and Pierce v. Society of Sisters. I did research this right about 20 years ago. And it's definitely in the US Constitution. But the only way that the SCOTUS kind of went out on a limb is with abortion. In no other country is this right defined this way. Except in one case in Italy, I read. A woman's life was in danger without an abortion. And a court intervened this way.
And there's really no such thing as original intent and never was. All QUALIFIED Supreme Court justices faithfully interpret the Constitution. Harry Blackmun did. Yes he did, yes he did, yes he did. He was a principled conservative, a levelheaded man and a very qualified justice. Amy Coney Barrett is all those things. But she's very nutty. But not nutty enough to create a theocracy, no matter what she personally believes.
And you know folks, it's because of cases like Meyer v. Nebraska and Pierce v. Society of Sisters (1923 and 5, cases that involved that right to privacy) that they could never force your kid to take gay sensitivity classes in public school. But, hey, maybe they should...
Harry Blackmun was not a liberal. He actually always stayed a Republican. That never changed. And although he was supposedly liberal on contraception, abortion and gay rights, he was kind of jerk with criminal law. Liberals, as I said, hated him. He let the police and prosecutor get away with too much sometimes, they said. He eventually came out against the death penalty. But he always maintained that true obscenity is not protected by the First Amendment. This was one of the things that made him a conservative back then. His fellow Supreme Court justice William O. Douglas thought that was silly. What others called obscenity, he thought was protected by the Constitution. But Harry Blackmun, unlike modern originalists, thought the enforcement of obscenity statutes stopped at your front doorstep. (Originalist Clarence Thomas differs a little on this. He believes in things like forced school prayer and outlawing birth control. But to him pornography is more about free speech than morality, he says.)
When a judge accepts a motion to suppress evidence and has to declare a mistrial, he basically knows. At that point the defendant is a guilty as sin. And he might have done a very serious, violent crime too. But the judge has no choice. As the conservative judge Anthony Kennedy said, we judges don't like it either. But we have no choice. That's how our system works. And, we are just following the rules at that point. Now, a defense attorney may not know if his client is guilty. They often lie to their lawyers anyways. And the attorney really doen't know. Know that he is defending a guilty person. The reason why we say defense attorneys are evil and judges aren't is simple. Attorneys are seens a liberal and evil, and judges are seen as more conservative. I don't how true that is though. Anthony Kennedy practiced law in California in the 1960's. And attorney Alan Dershowitz has some views that are very conservative, though he calls himself an independant.
I suspect it's more a case of attorneys are seen as partisan, which is their job, and judges are seen as neutral, which is their duty, albeit not always followed.
