United States v. Harris (403 U.S. 573)/Concurrence Blackmun

Mr. Justice BLACKMUN, concurring.

I join the opinion of THE CHIEF JUSTICE and the judgment of the Court, but I add a personal comment in order to make very clear my posture as to Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), cited in several places in that opinion. I was a member of the 6-2 majority of the United States Court of Appeals of the Eighth Circuit in Spinelli v. United States, 382 F.2d 871 (1967), which this Court by a 5-3 vote reversed, with the pivotal Justice concluding his concurring opinion, 393 U.S., at 429, 89 S.Ct., at 595, by the observation that, 'Pending full-scale reconsideration of that case (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)), on the one hand, or of the Nathanson-Aguilar cases on the other, I join the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an evenly divided Court.' Obviously, I then felt that the Court of Appeals had correctly decided the case. Nothing this Court said in Spinelli convinced me to the contrary. I continue to feel today that Spinelli at this level was wrongly decided and, like Mr. Justice BLACK, I would overrule it.

Mr. Justice HARLAN, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.