Hastings Constitutional Law Quarterly


In the field of race, Justice Harry A. Blackmun is most known for the stirring language in his opinions in Bakke and Weber in the late 1970s and Croson and Wards Cove in the late 1980s. After explaining why no race jurisprudence is made up of stirring language alone, Professor Malamud explores the development of Justice Blackmun's race jurisprudence from his years on the United States Court of Appeals for the Eighth Circuit to his final term on the Court. She paints a picture of a judge who did not always trust his own intuition in race cases, and who therefore invested considerable energy in developing and maintaining proof structures that held the promise of substituting quasi-scientific method for intuition. As Justice Blackmun observed the failure of that promise in the late 1980s, he asserted an increasingly anxious and prophetic voice to remind the court and the nation that race discrimination remains one of the central problems of our time.