Thursday, March 4, 2004

POOR JOSHUA! [WARNING: THIS POST IS 100% POP CULTURE FREE]: If you're like me -- and even for most of the people reading this, you're probably not this much like me unless you were a student of Austin Sarat's -- the highlight from today's release of Justice Blackmun's personal papers may well be the opportunity to see in Blackmun's own handwriting his dissent in DeShaney v. Winnebago Cty. Soc. Serv. Dept., 489 U.S. 189 (1989).

The case involves Joshua DeShaney, a four-year-old who was so severely beaten by his custodial father that he fell into a life-threatening coma, suffering traumatic head injuries that caused life-long brain damage and profound retardation. What's worse, the county's department of social services had visited the family a number of times during the previous two years because of suspicions of abuse, noticing repeated injuries, yet essentially did nothing.

A lawsuit was filed on Joshua's behalf, claiming that his constitutional rights were violated by the state's failure to intervene to protect him against a known risk of violence. Chief Justice Rehnquist commanded a 6-3 majority, holding that the state had no affirmative duty to protect Joshua despite everything it knew.

Justice Brennan wrote the more formal, legal dissent, but it's Justice Blackmun's separate dissent that everyone remembers. Blackmun decried the "sterile formalism" which led to the court's result, and concluded in personal language uncharacteristic for a Supreme Court opinion as follows (internal cites deleted):
[T]he question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.

Justice Blackmun never lost sight of the people whose lives were being affected by Supreme Court's decisions, and for that, we are all in his debt.

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