Harry Blackmun

Harry Andrew Blackmun
Nominated by	Richard Nixon
Preceded by	Abe Fortas
Succeeded by	Stephen Breyer

Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. He is best known as the author of the majority opinion in the 1973 Roe v. Wade decision, overturning laws restricting abortion in the United States.

Early years and professional career

Harry Blackmun was born in Nashville, Illinois, and grew up in Dayton's Bluff, a working-class neighborhood in St. Paul, Minnesota. He attended Harvard College on scholarship, getting a bachelor's degree in mathematics in 1929. While at Harvard, Blackmun joined Lambda Chi Alpha fraternity and sang with the Harvard Glee Club. He attended Harvard Law School (among his professors there was Felix Frankfurter), graduating in 1932. He served in a variety of positions including private counsel, law clerk, and adjunct faculty at the University of Minnesota and the William Mitchell College of Law (then called 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. Between 1950 and 1959 Blackmun served as resident counsel for the Mayo Clinic.

Appellate bench

President Dwight David Eisenhower appointed Blackmun to the United States Court of Appeals for the Eighth Circuit on 4 November 1959. Blackmun's opinions on the circuit court level were mainly tax-related, although he wrote influential opinions about other matters, including Jackson v. Bishop (1968), which was probably the first appellate opinion to declare that physical abuse of prisoners was cruel and unusual punishment under the Constitution.

Blackmun's tenure on the Supreme Court

Blackmun was nominated for the Supreme Court by Richard Nixon on 4 April 1970, and was confirmed by the United States Senate later the same year. His confirmation followed contentious battles over other unsuccessful nominations forwarded by Nixon that same year, those of Clement Haynsworth and G. Harrold Carswell. Blackmun's nomination sailed through the Senate with no opposition on 17 May 1970.

Early years on the Supreme Court

Blackmun, a lifelong Republican, was generally expected to adhere to a conservative interpretation of the constitution. The Court's Chief Justice at the time, Warren Burger, who had been a long-time friend of Blackmun's and for whom Blackmun served as best man at his wedding, had recommended Blackmun for the job to President Richard M. Nixon. The two were often referred to as the "Minnesota Twins" (a reference to the baseball team, the Minnesota Twins) because of their common history in Minnesota and because they so often voted together. Indeed, 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 1976's Gregg v. Georgia, even the "barbaric" 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.

Initially Blackmun was slightly less conservative than Warren Burger. In the 1971-72 term he voted with Burger in over 90 % of the cases and William Rehnquist in slightly under 90 % of the cases. He was even slightly more conservative than Lewis Powell in their first year on the court together.

Blackmun and abortion

A turning point came in 1973. That year the Court's opinion in the case of Roe v. Wade which he authored was handed down. Roe invalidated 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 similarly unconstitutional. Both decisions were based on the right to privacy enunciated in Griswold v. Connecticut, and remain the primary basis for legal abortion in the United States. Roe caused an immediate uproar, and Blackmun's opinion made him a target for sometimes extreme criticism by opponents of abortion, receiving voluminous negative mail and death threats over the case.

In response, Blackmun became a passionate crusader for abortion rights, often delivering speeches and lectures promoting Roe v. Wade as essential to women's equality and criticizing Roe's critics. On the bench, he always voted to strike down laws interfering with women receiving abortions and filed emotional separate opinions in 1989's Webster v. Reproductive Health Services and 1992's Planned Parenthood v. Casey, warning that Roe was in jeopardy. With this shift in roles, Blackmun saw his influence on his colleagues wane: while his opinion in Roe was joined by six other justices, by Casey no other justice signed on to his opinion.

Transition to the left

The controversial decision had a profound effect on him, and afterwards, he gradually began to drift away from the influence of Chief Justice Burger and associate justice William Rehnquist to increasingly side with liberal Justice William J. Brennan in finding Constitutional protection for unenumerated individual rights. For example, Blackmun wrote a blistering dissent to the Court's opinion in 1986's Bowers v. Hardwick, denying constitutional protection to homosexual sodomy (Burger wrote a concurring opinion in Bowers in which he said, "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.") Burger and Blackmun drifted apart, and as the years passed, their lifelong friendship degenerated into a hostile and contentious relationship. In Burger's last year on the court he and Blackmun voted together in about 50% of the cases while Blackmun voted with William Brennan and Thurgood Marshall over 90% of the time.

Blackmun's judicial philosophy increasingly seemed guided by Roe, even in areas where Roe was not directly applicable. His concurring opinion in 1981's Michael M. v. Superior Court, a case that upheld statutory rape laws that applied only to men but did not implicate Roe or abortion, nonetheless included extensive citation of the Court's recent abortion cases.

Later years on the bench: Blackmun and the death penalty

While it is widely believed that Blackmun grew more liberal over the years, he argued that instead the Court grew more conservative with the elevation of William Rehnquist to Chief Justice and the replacement of the last of the Warren Court justices.

Still, Blackmun undoubtedly changed his views on many issues. For example, Blackmun 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. On February 22, 1994, he announced that he now saw the death penalty as always unconstitutional by issuing a dissent from the Court's refusal to consider the relatively routine death penalty case of Callins v. Collins, in which he famously wrote "From 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 in every death penalty case presented to the Court, a brief statement reiterating his Callins dissent. As Linda Greenhouse has reported, Blackmun prepared his dissent in Callins well in advance of the case coming before the Court; he had been waiting for a routine death penalty case to come up so that he could file the dissent, and Callins was one that fit the bill.

Some commentators also call Blackmun a "sentimentalist" justice as he sometimes appealed to his own emotions in justifying opinions. In his emotional dissent in 1989's DeShaney v. Winnebago County, rejecting the constitutional liability of the state of Iowa for four-year-old Joshua DeShaney, who was beaten until brain-damaged by his abusive father, Blackmun famously opined, "Poor Joshua!" In his opinion in 1992's Planned Parenthood v. Casey, which upheld a right to abortion in principle, Blackmun lamented, "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." 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."

Blackmun was extremely liberal in voting to grant certiorari to allow the Court to hear cases, and he wrote numerous dissents from denial of certiorari. When Blackmun retired (along with fellow Justice Byron White, who also took a liberal line in voting to grant certiorari, and who retired at about the same time as Blackmun), the number of cases heard each session of the Court declined steeply. In Blackmun's heyday, it was not unusual for the Court to hear between 200 and 300 cases per year. In the late 1990s, the Court typically heard 70 to 80 cases per year.

Post-Supreme Court

Blackmun announced his retirement from the Supreme Court in April 1994, four months before he officially left the bench. By then, he had become the court's most liberal justice.

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, he died at 1 am from complications following the procedure. He was buried five days later at Arlington National Cemetery with his wife who died several years later on July 13, 2006 at the age of 95.

Five years later in 2004, at Blackmun's will, the Library of Congress released his voluminous files. Blackmun had kept all the documents from every case, notes the Justices passed between themselves, ten percent of the mail he received, and numerous other documents. And after Blackmun announced his retirement from the Court, he recorded a 38-hour oral history with one of his former law clerks, Yale University professor 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.

The Blackmun papers also reveal Blackmun's heavy reliance on his law clerks. Blackmun was sometimes reduced to being "a clerk for his clerks," performing the menial and prosaic task of checking his clerks' citations on opinions that they had written for him, a job normally reserved for clerks. For example, Blackmun's widely-quoted dissent in 1986's Bowers v. Hardwick was written entirely by his law clerk Pamela Karlan, now a professor at Stanford Law School.

Based on these papers, Linda Greenhouse of The New York Times wrote Becoming Justice Blackmun.

Blackmun is the only Supreme Court justice to have played one in a motion picture. In 1997, he portrayed Justice Joseph Story in the movie Amistad.

References

• Clinton, Bill (2005). My Life. Vintage. ISBN 140003003X.
• Harry Blackmun profile, NNDB.
• Greenhouse, Linda (2005). Becoming Justice Blackmun. Henry Holt. ISBN 0805080570.

External links

• Excerpt from Blackmun's Callins opinion, and Justice Scalia's response
• NPR series on Justice Blackmun's Files
• Transcript: The Justice Harry A. Blackmun Oral History Project