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Abstract

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, both through the opinions he has authored and those he has joined, he has become known as one of the leading “liberal” justices of the Burger and Rehnquist Courts—a fact which I believe has caused him some amusement, given the initial publicity that greeted his appointment to the Court. Nevertheless, if “liberal” here connotes an abiding concern for the individual, a desire both to keep government in its place and to ensure that governmental actions facilitate individual development, and a vision of the equality of human beings before the law, Justice Blackmun richly deserves the label.

One could not in the space of one short article canvass everything Justice Blackmun has done in the field of individual rights. Here, I have chosen to focus on the non-criminal areas relating to individual autonomy and the right to be free from discrimination (derived both from statutes and from the Constitution). The picture that emerges is one of a hierarchy of rights, ranging from the most highly protected against governmental restriction to those that are more subject to democratic controls. It is at times a complex picture, for Justice Blackmun insists on seeing the world in all its factual disarray, and he resists the temptation to employ the simpli- fying assumptions of abstract theory that might make his judging job easier. He prefers the more difficult approach that is firmly grounded in the facts of each case, knowing that in the long run this will produce the most just results, as well as the soundest develop- ment of the law.

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