Harry Blackmun

Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 until 1994. Appointed by Republican President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade, which prohibits many state and federal restrictions on abortion.[1]

Harry Blackmun
Associate Justice of the Supreme Court of the United States
In office
May 14, 1970 – August 3, 1994
Nominated byRichard Nixon
Preceded byAbe Fortas
Succeeded byStephen Breyer
Judge of the United States Court of Appeals for the Eighth Circuit
In office
September 21, 1959 – June 8, 1970
Nominated byDwight D. Eisenhower
Preceded byJohn B. Sanborn Jr.
Succeeded byDonald Roe Ross
Personal details
Born
Harry Andrew Blackmun

(1908-11-12)November 12, 1908
Nashville, Illinois, U.S.
DiedMarch 4, 1999(1999-03-04) (aged 90)
Arlington County, Virginia, U.S.
Resting placeArlington National Cemetery
Political partyRepublican
EducationHarvard University (AB, LLB)

Raised in Saint Paul, Minnesota, Blackmun graduated from Harvard Law School in 1932. He practiced law in the Minneapolis-St. Paul area, representing clients such as the Mayo Clinic. In 1959, he was appointed to the United States Court of Appeals for the Eighth Circuit by President Dwight D. Eisenhower. After the defeat of two previous nominees, President Richard Nixon successfully nominated Blackmun to the Supreme Court to replace Associate Justice Abe Fortas. Blackmun and his close friend, conservative Chief Justice Warren Burger, were often referred to as the "Minnesota Twins", but Blackmun drifted away from Burger during their tenure on the court. Blackmun retired from the Court during the administration of President Bill Clinton, and was succeeded by Stephen Breyer.

Aside from Roe v. Wade, notable majority opinions written by Blackmun include Bates v. State Bar of Arizona, Bigelow v. Commonwealth of Virginia, and Stanton v. Stanton. He joined part of Justice Sandra Day O'Connor's opinion in Planned Parenthood v. Casey but also filed a separate opinion, warning that Roe was in jeopardy. He wrote dissenting opinions in notable cases such as Furman v. Georgia, Bowers v. Hardwick, and DeShaney v. Winnebago County.

Early years and professional career

Harry Blackmun was born in Nashville, Illinois, to Theo Huegely (Reuter) and Corwin Manning Blackmun.[2] Three years later his baby brother, Corwin Manning Blackmun, Jr., died soon after birth; sister Betty was born in 1917.[3] Blackmun grew up in Dayton's Bluff, a working-class neighborhood in Saint Paul, Minnesota. He attended the same grade school as future Chief Justice Warren E. Burger, with whom he eventually served on the Supreme Court for some sixteen years.[4] Blackmun attended Mechanic Arts High School in Saint Paul, where he graduated fourth in his class of 450 in 1925. He had expected to attend the University of Minnesota; however, he received a scholarship to attend Harvard University, where he earned an Artium Baccalaureus degree summa cum laude in mathematics and graduated Phi Beta Kappa in 1929. While at Harvard, Blackmun joined Lambda Chi Alpha fraternity and sang with the Harvard Glee Club (with whom he performed for President Herbert Hoover in 1929, Blackmun's first visit to Washington). He attended Harvard Law School (among his professors there was future Associate Justice Felix Frankfurter), graduating with a Bachelor of Laws in 1932. After graduating from law school, Blackmun returned to Minnesota, where he served in a variety of positions including private counsel, law clerk, and adjunct faculty at the University of Minnesota Law School and William Mitchell College of Law (then the St. Paul College of Law). Blackmun's practice as an attorney at the law firm now known as Dorsey & Whitney focused in its early years on taxation, trusts and estates, and civil litigation. He married Dorothy Clark in 1941 and had three daughters with her, Nancy, Sally, and Susan. Between 1950 and 1959, Blackmun served as resident counsel for the Mayo Clinic in Rochester, Minnesota.[5] He would later describe his time at Mayo as "his happiest time" (while describing his later work on the judiciary as where he "performed his duty").[6]

Court of Appeals service

In the late 1950s, Blackmun's close friend Warren E. Burger, then an appellate judge on the United States Court of Appeals for the District of Columbia Circuit, repeatedly encouraged Blackmun to seek a judgeship. Judge John B. Sanborn Jr. of the Eighth Circuit, whom Blackmun had clerked for after graduating from Harvard, told Blackmun of his plans to assume senior status. He said that he would suggest Blackmun's name to the Eisenhower administration if Blackmun wished to succeed him. After much urging by Sanborn and Burger, Blackmun agreed to accept the nomination, duly offered by Eisenhower and members of the Justice Department.[7] Blackmun was nominated by President Dwight D. Eisenhower on August 18, 1959, to a seat on the United States Court of Appeals for the Eighth Circuit vacated by Judge John B. Sanborn Jr. The American Bar Association Standing Committee on the Federal Judiciary gave him a rating of "exceptionally well qualified", and he was confirmed by the United States Senate on September 14, 1959, and received his commission on September 21, 1959. Over the next decade, Blackmun would author 217 opinions for the Eighth Circuit.[7] His service on the Court of Appeals ended on June 8, 1970 due to his appointment to the Supreme Court.

Tenure on the Supreme Court

Blackmun was nominated to the Supreme Court by President Richard Nixon on April 14, 1970, and was confirmed by the United States Senate on May 12, 1970, by a 94–0 vote.[8] He received his commission on May 14, 1970 and took the oath of office on June 9, 1970.[9] Blackmun was Nixon's third choice to fill the vacancy created by the resignation of Abe Fortas on May 14, 1969. His confirmation followed contentious battles over two previous, failed nominations forwarded by Nixon in 1969–1970, those of Clement Haynsworth and G. Harrold Carswell. Nixon's original choice, Lewis F. Powell Jr., turned him down but later joined the Court in 1972.[10] Blackmun served as Circuit Justice for the Eighth Circuit from June 9, 1970 to August 2, 1994 and for the First Circuit from August 7, 1990 to October 8, 1990.

Early years on the Supreme Court

Blackmun, a lifelong Republican, was expected to adhere to a conservative interpretation of the Constitution. The Court's Chief Justice at the time, Warren Burger, a long-time friend of Blackmun's and best man at his wedding, had recommended Blackmun for the job to Nixon. The two were often referred to as the "Minnesota Twins" (a reference to the baseball team, the Minnesota Twins, in turn named after the "Twin Cities" of Minneapolis and St. Paul, Minnesota) because of their common history in Minnesota and because they so often voted together. Indeed, Blackmun voted with Burger in 87.5 percent of the closely divided cases during his first five terms (1970 to 1975), and with William J. Brennan, the Court's leading liberal, in only 13 percent.[11] In 1972, Blackmun joined Burger and the other two Nixon appointees to the Court in dissenting from the Furman v. Georgia decision that invalidated all capital punishment laws then in force in the United States, and in 1976, he voted to reinstate the death penalty in Gregg v. Georgia, even the mandatory death penalty statutes, although in both instances he indicated his personal opinion of its shortcomings as a policy. Blackmun, however, insisted his political opinions should have no bearing on the death penalty's constitutionality.

That began to change, however, between 1975 and 1980, by which time Blackmun was joining Brennan in 54.5 percent of the divided cases, and Burger in 45.5 percent.[11] Shortly after Blackmun dissented in Rizzo v. Goode (1976), William Kunstler embraced him and "welcom[ed] him to the company of the 'liberals and the enlightened.'"[12]

From 1981 to 1986 when Burger retired, the two men voted together in only 32.4 percent of close cases, whereas Blackmun joined Brennan in 70.6 percent of the close cases.[11]

Abortion

In 1973, Blackmun authored the Court's opinion in Roe v. Wade, invalidating a Texas statute making it a felony to administer an abortion in most circumstances. The Court's judgment in the companion case of Doe v. Bolton held a less restrictive Georgia law to be unconstitutional also. Both decisions were based on the right to privacy announced in Griswold v. Connecticut (1965) and remain the primary basis for the constitutional right to abortion in the United States. Roe caused an immediate uproar, and Blackmun's opinion made him a target for criticism by opponents of abortion, receiving voluminous negative mail and death threats over the case.

Blackmun became a passionate advocate for abortion rights, often delivering speeches and lectures promoting Roe v. Wade as essential to women's equality and criticizing Roe's critics. Defending abortion, in Thornburgh v. American College of Obstetricians and Gynecologists Blackmun wrote:

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision – with the guidance of her physician and within the limits specified in Roe – whether to end her pregnancy. A woman's right to make that choice freely is fundamental ...[13]

Blackmun filed separate opinions in 1989's Webster v. Reproductive Health Services and 1992's Planned Parenthood v. Casey, warning that Roe was in jeopardy: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made."

Ancillary to the primary right to abortion, Blackmun extended First Amendment protection to commercial speech in Bigelow v. Commonwealth of Virginia, a case where the Supreme Court overturned the conviction of an editor who ran an advertisement for an abortion referral service.

Split with Burger

After Roe, Blackmun began to drift away from the influence of Chief Justice Warren Burger to increasingly side with liberal Justice Brennan in finding constitutional protection for unenumerated individual rights. For example, Blackmun wrote a dissent to the Court's opinion in 1986's Bowers v. Hardwick. The Court's ruling in this case denied constitutional protection to homosexual sodomy. Burger's opinion in Bowers read: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." In his dissent, Blackmun responded by quoting Oliver Wendell Holmes: "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Burger and Blackmun drifted apart, and as the years passed, their lifelong friendship degenerated into a hostile and contentious relationship.[14]

From the 1981 term through the 1985 term, Blackmun voted with Brennan 77.6% of the time, and with Thurgood Marshall 76.1%.[15] From 1986 to 1990, his rate of agreement with the two most liberal justices was 97.1% and 95.8%.[15]

Blackmun's judicial philosophy increasingly seemed guided by Roe, even in areas where Roe was not apparently directly applicable. His concurring opinion in 1981's Michael M. v. Superior Court of Sonoma County, a case that upheld statutory rape laws that applied only to men, did not directly implicate Roe, but because the laws were justified on the basis that women would be subject to the "risk" of pregnancy, Blackmun had cause to discuss Roe further in his opinion.[16]

Later years on the bench

Despite his stated personal "abhorrence" for the death penalty in Furman v. Georgia, he voted to uphold mandatory death penalty statutes at issue in 1976's Roberts v. Louisiana and Woodson v. North Carolina, even though these laws would have automatically imposed the death penalty on anyone found guilty of first-degree murder. But on February 22, 1994, less than two months before announcing his retirement, Blackmun announced that he now saw the death penalty as always and in all circumstances unconstitutional by issuing a dissent from the Court's refusal to hear a routine death penalty case (Callins v. Collins), declaring that "[f]rom this day forward, I no longer shall tinker with the machinery of death." Subsequently, adopting the practice begun by Justices Brennan and Marshall, he issued a dissent from denial of certiorari in every death penalty case, citing and reiterating his Callins dissent. As Linda Greenhouse and others have reported, Blackmun's law clerks prepared what would become the Callins dissent well in advance of the case coming before the Court; Blackmun's papers indicate that work began on the dissent in the summer of 1993, and in a memo preserved in Blackmun's papers, the clerk writing the dissent wrote Blackmun that:

[t]his is a very personal dissent, and I have struggled to adopt your 'voice' to the best of my ability. I have tried to put myself in your shoes and write a dissent that would reflect the wisdom you have gained, and the frustration you have endured, as a result of twenty years of enforcing the death penalty on this Court.[17]

Blackmun and his clerks then sought an appropriate case to serve as a "vehicle for [the] dissent," and settled on Callins.[18] That the case found the dissent, rather than the more traditional relationship of the dissent relating to the case, is underscored by the opinion's almost total omission of reference to the case it ostensibly addressed: Callins is relegated to a supernumerary in his own appeal, being mentioned but five times in a 42-paragraph opinion – three times within the first two paragraphs, and twice in footnote 2.[19]

In his emotional dissent in 1989's DeShaney v. Winnebago County, rejecting the constitutional liability of the state of Wisconsin for four-year-old Joshua DeShaney, who was beaten until brain-damaged by his abusive father, Blackmun famously opined, "Poor Joshua!" In his dissent in 1993's Herrera v. Collins, where the Court refused to find a constitutional right for convicted prisoners to introduce new evidence of "actual innocence" for purposes of obtaining federal relief, Blackmun argued in a section joined by no other justice that "The execution of a person who can show that he is innocent comes perilously close to simple murder."

Women's rights

In Stanton v. Stanton (1975), a case striking down a state's definitions of adulthood (males reaching it at 21, women at 18), Blackmun wrote:

A child, male or female, is still a child ... No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas ... If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl.[20]

Relationship with law clerks

Compared to other Justices on the Supreme Court, Blackmun gave his law clerks great latitude in drafting opinions, such as his opinion in Planned Parenthood v. Casey, which was written by Stephanie Dangel, then one of Blackmun's clerk and now a lawyer in Pennsylvania.[21] Blackmun's Casey opinion draft included sharp criticism of Chief Justice William Rehnquist, which included, according to Dangel, a sarcastic reference to Rehnquist as "The Chief" rather than Chief Justice because "I have my doubts as to whether he deserves to be called 'justice' on this one."[22] Dangel, however, changed it to "Chief Justice" at the urging of Justice Anthony Kennedy.

It has also been revealed by Blackmun in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written by a clerk, Pam Karlan. Blackmun said of the dissent; "[K]arlan did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct."[23][24]

Notable clerks

Blackmun's clerks included Edward B. Foley.[25]

Relationship with other justices

When Blackmun's papers were released at the Library of Congress, his sometimes negative notations regarding fellow Justice Clarence Thomas came to light.[26] However, Thomas spoke positively of Blackmun when he appeared in 2001 at the dedication of the Harry A. Blackmun Rotunda at the St. Louis federal courthouse, mentioning that Blackmun drove a blue Volkswagen Beetle and would tell fast food patrons that he was "Harry. I work for the government."[26]

Blackmun and Justice Potter Stewart shared an obsessive following of baseball. In one oral argument on October 10, 1973, Stewart passed Blackmun a note that read, "V.P. AGNEW JUST RESIGNED!! METS 2 REDS 0." (The game in question was the 5th and deciding game of the 1973 National League Championship Series, and the Mets would eventually win that game 7-2, sending them to the 1973 World Series.)[27]

Post-Supreme Court

Blackmun announced his retirement from the Supreme Court in April 1994, four months before he officially left the bench, assuming retired status on August 3, 1994. By then, he had become the court's most liberal justice.[15] In his place, President Bill Clinton nominated Stephen Breyer who was confirmed by the Senate 87–9.

In 1995, Blackmun received the United States Senator John Heinz Award for Greatest Public Service by an Elected or Appointed Official, an award given out annually by Jefferson Awards.[28]

In 1997, Blackmun portrayed Justice Joseph Story in the Steven Spielberg film Amistad,[29] making him the only United States Supreme Court justice to have played a judge in a motion picture.

On February 22, 1999, Blackmun fell in his home and broke his hip. The next day, he underwent hip replacement surgery at Arlington Hospital in Arlington, Virginia, but he never fully recovered. Ten days later, on March 4, at the age of 90, he died at 1:00 A.M. from complications from the procedure. He lay in repose in the Great Hall of the United States Supreme Court Building, and was buried five days later at Arlington National Cemetery.[30] His wife died seven years later on July 13, 2006, at the age of 95, and was buried next to him.

In 2004 the Library of Congress released his voluminous files. Blackmun had kept all the documents from every case, notes the Justices passed between themselves, 10 percent of the mail he received, and numerous other documents. After Blackmun announced his retirement from the Court, he recorded a 38-hour oral history with one of his former law clerks, former Yale Law School dean Harold Koh, which was also released. In it, he discusses his thoughts on everything from his important Court cases to the Supreme Court piano, though some Supreme Court experts such as David Garrow have cast doubt on the accuracy of some of Blackmun's recollections, especially his thoughts on the Court's deliberations on Roe v. Wade.

Based on these papers, Linda Greenhouse of The New York Times wrote Becoming Justice Blackmun. Jan Crawford's Supreme Conflict also draws heavily from the papers.

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See also

Footnotes
  1. Greenhouse 2005, p. 250
  2. Roberts, Gary B.; Dearborn, David Curtis; Brayton, John Anderson; Brenneman, Richard E.; Society, New England Historic Genealogical (1 June 1997). Notable Kin: An Anthology of Columns First Published in the Nehgs Nexus, 1986-1995. Carl Boyer. ISBN 9780936124179. Retrieved 15 March 2018 – via Google Books.
  3. Greenhouse 2005, p. 3
  4. Woodward, Bob (1979). The Brethren. Avon. p. 97. ISBN 0-380-52183-0.
  5. Greenhouse 2005, pp. 2–18
  6. Greenhouse 2005, p. 249
  7. Greenhouse 2005, pp. 25–29
  8. See Warren Weaver Jr., Blackmun Approved, 94-0; Nixon Hails Vote by Senate in The New York Times, May 13, 1970, page 1.
  9. "Justices 1789 to Present". www.supremecourt.gov.
  10. "Members of the Supreme Court of the United States". Supreme Court of the United States. Retrieved April 26, 2010.
  11. Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 186.
  12. Woodward & Armstrong, The Brethren 506 (2005).
  13. Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 185.
  14. Greenhouse 2005, pp. 186–187
  15. Greenhouse 2005, p. 235
  16. "BLACKMUN, J., Concurring Opinion in Michael M. v. Superior Court". Law.cornell.edu. Retrieved May 4, 2011.
  17. Greenhouse 2005, pp. 177–178
  18. Garrow, David J. "Legal Affairs". Legal Affairs. Archived from the original on October 15, 2009. Retrieved May 4, 2011.
  19. "Callins v. Collins,,510 U.S. 1141 (1994)". Supct.law.cornell.edu. Retrieved December 13, 2011.
  20. Greenhouse 2005, p. 218
  21. "Blackmun Clerks Had Too Much Power, Says Historian". Law.com. Retrieved May 4, 2011.
  22. Tony MauroContactAll Articles (March 5, 2004). "Blackmun Papers Are a Window on Court's Daily Life". Law.com. Retrieved May 4, 2011.
  23. "The Volokh Conspiracy". Volokh.com. Retrieved May 4, 2011.
  24. Adam Liptak, Exhibit A for a Major Shift: Justices’ Gay Clerks, N.Y. Times (June 8, 2013) (discussing Karlan's authorship of Justice Blackmun's dissent in Bowers).
  25. "StackPath". fedsoc.org. Retrieved 2020-08-15.
  26. Kevin Merida and Michael A. Fletcher (October 10, 2004). "Thomas v. Blackmun". The Washington Post. Retrieved October 19, 2008.
  27. Biskupic, Joan (December 25, 2007). "Ginsburg, Scalia Strike a Balance" USA Today. Accessed August 24, 2009.
  28. "National - Jefferson Awards Foundation". jeffersonawards.org. Archived from the original on 24 November 2010. Retrieved 15 March 2018.
  29. Greenhouse 2005, p. 247
  30. Greenhouse 2005, pp. 247–248

References

Further reading
  • Clinton, Bill (2005). My Life. Vintage. ISBN 1-4000-3003-X.
  • Woodward, Robert and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 978-0-380-52183-8; ISBN 0-380-52183-0. ISBN 978-0-671-24110-0; ISBN 0-671-24110-9; ISBN 0-7432-7402-4; ISBN 978-0-7432-7402-9.
  • Wrightsman, Lawrence S., and Justin R. La Mort (2005). Why Do Supreme Court Justices Succeed or Fail? Harry Blackmun as an Example. Missouri Law Review 70.
  • Yarbrough, Tinsley. Harry A. Blackmun: The Outsider Justice. Oxford University Press. ISBN 0-19-514123-7.
Legal offices
Preceded by
John B. Sanborn Jr.		 Judge of the United States Court of Appeals for the Eighth Circuit
1959–1970		 Succeeded by
Donald Roe Ross
Preceded by
Abe Fortas		 Associate Justice of the Supreme Court of the United States
1970–1994		 Succeeded by
Stephen Breyer
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