Hastings Constitutional Law Quarterly


Kit Kinports


Much has been made of Justice Blackmun's supposed transformation from a "Minnesota TWin" following in the footsteps of Chief Justice Burger to a member of the Supreme Court's liberal wing aligned with Justices Brennan and Marshall. The Justice was appointed at a time when crime control was a major concern both for the American people and for President Nixon, who had pledged to put "law and order" judges on the Supreme Court. Moreover, the Justice's years on the Court coincided with a retreat from a number of the Warren Court precedents that had broadened the constitutional rights afforded criminal defendants. This Article explores the extent to which the Justice's supposed transformation also occurred in criminal cases.

In considering that question, the Article examines Justice Blackmun's opinions and votes in the leading Supreme Court rulings in five areas: search and seizure, confessions, the right to counsel, habeas corpus, and the right to a jury trial. The Article concludes that the Justice's views in criminal cases do not fit neatly into traditional liberal/conservative labels. On the one hand, the Justice did not align himself as closely with Justices Brennan and Marshall in criminal cases as he did in other areas, believing, for example, that neither the exclusionary rule nor the Miranda warnings were constitutionally required. On the other hand, he did not remain as loyal to a "law and order" platform as President Nixon and the legal pundits might have predicted, particularly in the areas of habeas corpus and the defendant's right to a fairly selected jury.