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December 01, 2000

Thanks to Two Friends of the Constitution - Human Rights Magazine, Winter 2000

Thanks to Two Friends of the Constitution

By James E. Coleman, Jr.

In the January 2, 2000, New York Times Magazine, Douglas Brinkley, a history professor at the University of New Orleans, wrote a brief tribute to three civil rights figures who died in 1999. He noted the well-deserved praise throughout last year for the generation of American soldiers who fought World War II, but observed that "members of the same generation who led the modern civil rights movement have yet to receive the same treatment, and portrayals of them still often give off a whiff of un- Americanism." Perhaps that inevitably will be the popular fate of those whose efforts are viewed primarily as trying to change the social order, rather than defend it. But it is important that the Section of Individual Rights and Responsibilities not neglect the deaths last year of two strongly independent judges, the memories of whom forever will be incentive for the Section’s work.

Former Supreme Court Justice Harry Blackmun died on March 4, 1999. When Justice Blackmun retired in April 1996, President Clinton said of him, "Justice has not only been his title, it has been his guiding light." And so it was, from the beginning to the end. Justice Blackmun’s legacy will be anchored in Roe v. Wade, the decision he wrote in 1973, recognizing a woman’s constitutional right to decide "whether or not to terminate her pregnancy." When the decision came under intense political and judicial attack, and its survival became unclear, Justice Blackmun told a group of law students that, even if it ultimately were rejected, "I’d still like to regard Roe v. Wade as a landmark in the progress of the emancipation of women."

At the end of his career on the Court, Justice Blackmun, who had voted to uphold the constitutionality of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976), concluded that the Court’s twenty- year effort since that decision to ensure the fairness of capital punishment within the constraints of the Constitution had failed. In his dissent in Callins v. Texas, 510 U.S. 1141 (1994), Justice Blackmun wrote, "[i]t seems that the decision whether a human being should live or die is so inherently subjective, rife with all of life’s understandings, experiences, prejudices, and passions, that it inevitably defies the rationality and consistency required by the Constitution." Having reached that conclusion, he vowed that "from this day forward, I no longer shall tinker with the machinery of death."

Judge Frank M. Johnson, Jr. died on July 23, 1999. His career as a federal judge spanned more than four decades. During that period, he decided cases involving voting rights, employment discrimination, affirmative action, rights of the mentally ill, prison conditions, and civil rights that literally changed the course of history in the South. His decisions led to the social ostracism of his family in Montgomery, Alabama, two cross-burnings on his lawn, the fire bombing of his mother’s home, and death threats too numerous to count. But through it all, Judge Johnson remained true to his belief "that the American people revere the concept of justice, and their conscience tells them to obey the law once they understand what it is." Dr. Martin Luther King, Jr., called him a judge who had "given true meaning to the word ‘justice.’ "

In 1992, the Section awarded Judge Johnson the Thurgood Marshall Award, in recognition of his extraordinary and courageous commitment to civil rights, making him the first recipient of the Award after Justice Marshall himself. In 1995, President Clinton awarded Judge Johnson the Presidential Medal of Honor, praising him for his "unwavering commitment to equality under the law [which] helped dismantle segregation and bring our nation closer to the ideals upon which it was founded."

The American Bar Association, the Section, and the American people owe Justice Blackmun and Judge Johnson our heartfelt gratitude for their integrity and for all they did to give substance to our ideals of equality and justice. They were true defenders of liberty and pursuers of justice.