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Published online by Cambridge University Press: 24 February 2021
I propose to survey briefly 16 of the Supreme Court's “Law and Psychiatry” decisions in the decade and a half from 1972 through 1986. I shall emphasize Justice Harry Blackmun's role in these decisions, his votes and his opinions.
Justice Blackmun's changing “social vision” on the court has been much discussed. It has even been examined quantitatively in a Harvard Law Review student note. This note measured his shift over time from voting with Burger and Rehnquist to voting with Brennan and Marshall. The lines of this graph cross in 1981, and 16 cases I have selected confirm this change. The 16 law and psychiatry cases are listed in Chart 1 below in chronological order. There were 8 cases before 1981 in which Justice Blackmun consistently voted with Burger and Rehnquist. There were 8 cases after 1981 in which Justice Blackmun consistently voted with Brennan and Marshall.
1 Note, The Changing Social Vision of Justice Blackmun 96 HARV. L. REV. 717 (1983)CrossRefGoogle Scholar.
2 Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton 410 U.S. 179 (1973).
3 For further discussion of these decisions, see text accompanying notes 3, 9-24.
4 See, e.g., Jones v. United States, 463 U.S. 354 (1983).
5 These civil libertarian themes of mental health law reform are constructed from my experience with litigation and legislative reform over the past two decades.
6 The objective legal standard of dangerousness in practice is highly problematic. There is no proven empirical method for translating the standard into practice.
7 Commenting on the disagreement of psychiatrists, John Parry writes: “These beneficent justifications for the control of treatment services are mixed with practical considerations of viability and [the] economic growth of the profession.” S. BRACKELL, J. PARRY, & B. WEINER, THE MENTALLY DISABLED AND THE LAW 616 (3d ed. 1985).
8 Parham v. J.R., 442 U.S. 584, 624-25 (1979).
9 406 U.S. 715 (1972).
10 Id. at 719.
11 Id. at 738.
12 Id. at 720-23.
13 405 U.S. 504, 509-10 (1972).
14 Id. at 510-11.
15 349 F. Supp. 1078, 1093-94 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974).
16 The American Bar Association, accepting the objective legal criteria of dangerousness but recognizing the lack of any demonstrable clinical expertise, has proposed that no expert clinical testimony be admissible.
17 463 U.S. 354 (1983).
18 See id. at 361 n.9, 365 n.14.
19 “The purpose of commitment following insanity acquittal, like that of civil commitment, is to treat the individual's mental illness and to protect him and society from his potential dangerousness. The commited acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” Id. at 368.
20 See, e.g., Jackson v. Indiana, 406 U.S. 715 (1972).
21 Jones, 463 U.S. at 365 (1984) (“This court never has held that ‘violence', however that term might be defined, is a prerequisite for a constitutional commitment.“).
22 Id. at 371-86 (Brennan, Blackmun, and Marshall, JJ., dissenting).
23 Cf. id. at 383-86 (Brennan, J., dissenting).
24 Id. at 385.
25 451 U.S. 454 (1981).
26 463 U.S. 880(1983).
27 Judge of the 195th Judicial District Court of Dallas County (lower court judge had requested the pretrial competency examination). 451 U.S. at 456-57.
28 463 U.S. at 896.
29 Barefoot, 463 U.S. at 916-38 (Blackmun, J., dissenting),
30 Id. at 899-901.
31 470 U.S. 68 (1985).
32 Id. at 88.
33 Id. at 71.
34 Id. at 71.
35 Id. at 89.
36 Id. at 72.
37 Id. at 86-87.
38 463 U.S. at 916-38 (Blackmun, J., dissenting).
39 477 U.S. 399 (1986).
40 Id. at 2605-06.
41 Id. at 2610 n.5.
42 106 S.Ct. 2988 (1986).
43 Special Dispositional Statutes 7-8.1, Repeal of Psychopath Statutes, 8 Criminal Justice Mental Health Standards, 345 (1983). STANDING COMMITTEE ON ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE, AMERICAN BAR ASSOCIATION (1983).
44 422 U.S. 563 (1975).
45 See Psychology and the Supreme Court in A. STONE, LAW, PSYCHIATRY AND MORALITY: ESSAYS AND ANALYSIS (1984).
46 Jones v. United States, 463 U.S. 351, 371, 383 (1983)(Brennan, J., dissenting).
47 O'Connor v. Donaldson, 422 U.S. 563, 573-74 (1975).
48 Id. at 574 n.10.
49 Id. at 573-74.
50 See Jones, 463 U.S. at 371-86 (Brennan.J., dissenting).
51 Addington v. Texas, 441 U.S. 418 (1979).
52 Id; Oral Arguments, 46, (Nov. 28, 1978).
53 Addington, 441 U.S. at 433.
54 Jones, 463 U.S. 354.
55 Parham v. J.R., 442 U.S. 584 (1979).
56 Id. at 606 (Burger, J.).
57 Parham, 412 F. Supp. 112, 135.
58 Id. at 614.
59 445 U.S. 480(1980).
60 Id. at 491-92.
61 465 U.S. 89 (1984)[hereinafter Pennhurst II]; 451 U.S. 1(1981) [hereinafter Pennhurst I].
62 Pennhurst I, at 7, Pennhurst II at 92; (Order issued in 446 F. Supp. 1295 (1977).
63 451 U.S. at 11.
64 Id. at 32-33 (Blackmun, J., concurring).
65 673 F.2d 647 (1982).
66 465 U.S. at 117.
67 457 U.S. 307 (1982).
68 Id. at 319.
69 Id. at 327. (Blackmun, J., concurring).
70 Id. at 329 (Burger, J., concurring).
71 414 U.S. 1058.
72 Id.
73 450 U.S. 221.
74 Id. at 239.
75 Id. at 247 (Brennan, Marshall, Powell, and Stevens, J J., dissenting).
76 473 U.S. 432.
77 Id. at 448.
78 Id. at 400-73 (Brennan, Blackmun, and Marshall, JJ., dissenting).
