Harry Blackmun | |
|---|---|
 | |
| Associate Justice of the Supreme Court of the United States | |
| In office June 9, 1970 – August 3, 1994[1] | |
| Nominated by | Richard Nixon |
| Preceded by | Abe Fortas |
| Succeeded by | Stephen Breyer |
| Judge of theUnited States Court of Appeals for the Eighth Circuit | |
| In office September 21, 1959 – June 8, 1970 | |
| Nominated by | Dwight D. Eisenhower |
| Preceded by | John B. Sanborn Jr. |
| Succeeded by | Donald Roe Ross |
| Personal details | |
| Born | Harry Andrew Blackmun (1908-11-12)November 12, 1908 Nashville, Illinois, U.S. |
| Died | March 4, 1999(1999-03-04) (aged 90) |
| Resting place | Arlington National Cemetery |
| Party | Republican |
| Spouse | |
| Children | 3 |
| Education | Harvard University (AB,LLB) |
Harry Blackmun delivers the opinion of the Court inVirginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. Recorded May 24, 1976 | |
Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as anassociate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by PresidentRichard 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 inRoe v. Wade.[2]
Raised inSaint Paul, Minnesota, Blackmun graduated fromHarvard Law School in 1932. He practiced law in theTwin Cities, representing clients such as theMayo Clinic. In 1959, PresidentDwight D. Eisenhower appointed him to theUnited States Court of Appeals for the Eighth Circuit. After the defeat of twoprevious nominees, President Nixon successfully nominated Blackmun to the Supreme Court to replace Associate JusticeAbe Fortas. Blackmun and his close friend, Chief JusticeWarren Burger, were often called the "Minnesota Twins", but Blackmun drifted away from Burger during their tenure on the court. He retired from the Court during PresidentBill Clinton's administration and was succeeded byStephen Breyer.
Aside fromRoe v. Wade, notable majority opinions by Blackmun includeBates v. State Bar of Arizona,Bigelow v. Commonwealth of Virginia, andStanton v. Stanton. He joined part of the joint opinion inPlanned Parenthood v. Casey but also filed a separate opinion, warning thatRoe was in jeopardy. He wrote dissenting opinions in notable cases such asFurman v. Georgia,Bowers v. Hardwick, andDeShaney v. Winnebago County.
Blackmun was born on November 12, 1908, inNashville, Illinois, to Theo Huegely (Reuter) and Corwin Manning Blackmun.[3] His grandparents wereGerman immigrants who operated aflour mill in Nashville, Illinois.[4] Three years after his birth, his brother, Corwin Manning Blackmun Jr., died soon after birth; his sister, Betty, was born in 1917.[5] Blackmun grew up inDayton's Bluff, a working-class neighborhood inSaint Paul,Minnesota, where his father owned a small store. He attended the same grade school as futureChief JusticeWarren E. Burger.[6] Blackmun was a Methodist.[7]
Blackmun attendedMechanic Arts High School in Saint Paul, where he graduated fourth in his class of 450 in 1925. He expected to attend theUniversity of Minnesota but received a scholarship to attendHarvard University, from which he graduatedsumma cum laude andPhi Beta Kappa with aBachelor of Arts degree inmathematics in 1929. At Harvard, Blackmun joinedLambda Chi Alpha fraternity and sang with theHarvard Glee Club (with which he performed for PresidentHerbert Hoover in 1929, Blackmun's first visit to Washington). He attendedHarvard Law School (where futureAssociate JusticeFelix Frankfurter was among his professors), graduating with aBachelor 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 theUniversity of Minnesota Law School andWilliam Mitchell College of Law (then the St. Paul College of Law). Blackmun's practice as an attorney at the law firm now known asDorsey & Whitney focused in its early years on taxation,trusts and estates, andcivil litigation. He married Dorothy Clark in 1941 and they had three daughters. Motivated by his initial passion for medicine, Blackmun accepted a position as resident counsel for theMayo Clinic inRochester from 1950 to 1959.[8]
In the late 1950s, Blackmun's close friendWarren E. Burger, then an appellate judge on theUnited States Court of Appeals for the District of Columbia Circuit, repeatedly encouraged Blackmun to seek a judgeship. JudgeJohn B. Sanborn Jr. of the Eighth Circuit, whom Blackmun had clerked for after graduating from Harvard, told Blackmun of his plans to assumesenior status. He said that he would recommend Blackmun 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.[9] On August 18, 1959, Eisenhower nominated Blackmun to the seat on theUnited States Court of Appeals for the Eighth Circuit vacated by Sanborn. TheAmerican Bar AssociationStanding Committee on the Federal Judiciary gave Blackmun a rating of "exceptionally well qualified". He was confirmed by theUnited States Senate on September 14, 1959, and received his commission on September 21. Over the next decade, Blackmun wrote 217 opinions for the Eighth Circuit.[9] His service on the Court of Appeals ended on June 8, 1970, due to his appointment to the Supreme Court.
PresidentRichard Nixonnominated Blackmun as anassociate justice of the United States Supreme Court on April 15, 1970, and the U.S. Senate confirmed him on May 12, by a 94–0 vote.[10][11] He wassworn into office on June 9, 1970.[1] This was Nixon's third attempt to fill the vacancy created by the resignation ofAbe Fortas on May 14, 1969. His earlierfailed nominees wereClement Haynsworth in September 1969 andG. Harrold Carswell in February 1970.[11] Not since 1894, during the secondCleveland Administration, had a president had two Supreme Court nominees rejected by the Senate.[12] This was also the longest vacancy on the court since 1873–74, during theGrant Administration – 391 days from Fortas's resignation to Blackmun's swearing-in.[13]
While on the Court, Blackmun served as Circuit Justice for the Eighth Circuit (June 9, 1970 – August 2, 1994) and for the First Circuit (August 7, 1990 – October 8, 1990).
A lifelongRepublican, Blackmun was expected to adhere to a conservative interpretation of theConstitution. The Court's Chief Justice at the time,Warren E. Burger, a longtime friend of Blackmun's and best man at his wedding, had recommended Blackmun for the job to Nixon. The two were often called the "Minnesota Twins" (a reference to the baseball team, theMinnesota Twins, in turn named after the "Twin Cities" ofMinneapolis andSt. Paul, Minnesota) because of their common history in Minnesota and because they so often voted together. Indeed, Blackmun voted with Burger in 87.5% of the closely divided cases during his first five terms (1970 to 1975), and withWilliam J. Brennan, the Court's leading liberal, in only 13%.[14] In 1972, Blackmun joined Burger and Nixon's other two appointees in dissenting fromFurman v. Georgia, the decision that invalidated all capital punishment laws then in force in the United States, and in 1976, he voted to reinstate the death penalty inGregg v. Georgia, even themandatory death penalty statutes. In both instances Blackmun indicated his personal opinion of the death penalty's shortcomings as a policy, but 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% of the divided cases, and Burger in 45.5%.[14] Shortly after Blackmun dissented inRizzo v. Goode (1976),William Kunstler embraced him and "welcom[ed] him to the company of the 'liberals and the enlightened.'"[15]
From 1981 to 1986, when Burger retired, the two men voted together in only 32.4% of close cases, whereas Blackmun joined Brennan in 70.6% of the close cases.[14]
In 1973, Blackmun authored the majority opinion inRoe v. Wade, invalidating a Texas statute that banned abortion except when a pregnant woman's life was in danger.[16][17] The Court's judgment in the companion case ofDoe v. Bolton held a less restrictiveGeorgia law to be unconstitutional as well.[17]Roe was based on theright to privacy announced inGriswold v. Connecticut (1965),[18][19] and it established a constitutional right to abortion in the United States.[20] Blackmun's opinion inRoe made him a target for criticism by opponents of abortion, and he received voluminous negative mail and death threats because of it.[21][22]
Blackmun became a passionate advocate for abortion rights, often delivering speeches and lectures promotingRoe v. Wade as essential to women's equality and criticizingRoe's critics. Defending abortion rights inThornburgh 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 inRoe – whether to end her pregnancy. A woman's right to make that choice freely is fundamental ...[23]
Blackmun filed separate opinions inWebster v. Reproductive Health Services (1989) andPlanned Parenthood v. Casey (1992), warning thatRoe 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 extendedFirst Amendment protection to commercial speech inBigelow 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.
AfterRoe, Blackmun began to drift away from Burger's influence to increasingly side with Brennan in finding constitutional protection for unenumerated individual rights. For example, Blackmun wrote a dissent to the Court's opinion inBowers v. Hardwick (1986). The Court's ruling in this case denied constitutional protection to homosexualsodomy. Burger's opinion inBowers 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 quotingOliver Wendell Holmes Jr.: "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time ofHenry 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.[24]
From the 1981 term through the 1985 term, Blackmun voted with Brennan 77.6% of the time, and withThurgood Marshall 76.1%.[25] From 1986 to 1990, his rate of agreement with the two most liberal justices was 97.1% and 95.8%.[25]
Blackmun's judicial philosophy increasingly seemed guided byRoe, even in areas whereRoe was not apparently directly applicable. His concurring opinion in 1981'sMichael M. v. Superior Court of Sonoma County, a case that upheldstatutory rape laws that applied only to men, did not directly implicateRoe, but because the laws were justified on the basis that women would be subject to the "risk" of pregnancy, Blackmun had cause to discussRoe further in his opinion.[26]
Despite Blackmun's stated personal "abhorrence" of the death penalty inFurman v. Georgia, he voted to uphold mandatory death penalty statutes at issue inRoberts v. Louisiana (1976) andWoodson v. North Carolina (1976), even though these laws would have automatically imposed the death penalty on anyone found guilty offirst-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 ofcertiorari in every death penalty case, citing and reiterating hisCallins dissent. AsLinda Greenhouse and others have reported, Blackmun's law clerks prepared what would become theCallins 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.[27]
Blackmun and his clerks then sought an appropriate case to serve as a "vehicle for [the] dissent," and settled onCallins.[28] 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.[29]
Blackmun also wrote an impassioned dissent inBowers v. Hardwick (1986), in which the Court upheldsodomy laws. He wrote, "This case is no more about 'a fundamental right to engage in homosexual sodomy' any more thanStanley v. Georgia was about a fundamental right to view obscene movies orKatz v. United States was about a fundamental right to place interstate bets through a telephone booth. Rather, this case is about 'the right most valued by civilized men, namely the right to be let alone'." Blackmun criticized the Court for its "almost obsessive focus on homosexual activity", noting that the sodomy law nominally prohibited both homosexual and heterosexual sodomy. He concluded his dissent: "It took but three years for the Court to see the error in its analysis inMinersville School District v. Gobitis, 310 U.S. 586 (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. SeeWest Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays these values, I dissent," deliberately omitting the customary "respectfully" before "dissent".
In his emotional dissent inDeShaney v. Winnebago County (1989), rejecting the constitutional liability of the state ofWisconsin for four-year-old Joshua DeShaney, who was beaten until brain-damaged by his abusive father, Blackmun famously opined, "Poor Joshua!" In his dissent inHerrera v. Collins (1993), 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."
InStanton 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.[30]
Compared to other justices, Blackmun gave his law clerks great latitude in drafting opinions, such as his opinion inPlanned Parenthood v. Casey, which was written by Stephanie Dangel, then one of Blackmun's clerks and now a law professor at the University of Pittsburgh.[31][32] According to Dangel, Blackmun'sCasey opinion draft initially included sharp criticism of Chief JusticeWilliam Rehnquist, including a sarcastic reference to him as "The Chief" rather than "Chief Justice" because "I have my doubts as to whether he deserves to be called 'justice' on this one."[33] Dangel changed it to "Chief Justice" at JusticeAnthony Kennedy's urging.
Blackmun also revealed in a 1995 oral history withHarold Koh that his dissent inBowers v. Hardwick was written by a clerk,Pam Karlan. He said: "Karlan 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."[34][35]
Blackmun's clerks includedEdward B. Foley[36] andChai Feldblum.[37]
When Blackmun's papers were released at theLibrary of Congress, his sometimes negative notations regarding fellow JusticeClarence Thomas came to light.[38] But Thomas spoke positively of Blackmun when he appeared in 2001 at the dedication of the Harry A. Blackmun Rotunda at theSt. Louis federal courthouse, mentioning that Blackmun drove a blueVolkswagen Beetle and would tell fast food patrons that he was "Harry. I work for the government."[38]
Blackmun and JusticePotter Stewart both followed baseball obsessively. 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 fifth and deciding game of the1973 National League Championship Series, and theMets won it 7–2, sending them to the1973 World Series.[39]
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.[25] In his place, PresidentBill Clinton nominatedStephen Breyer, whom the Senate confirmed, 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 byJefferson Awards.[40]
In 1997, Blackmun portrayed JusticeJoseph Story in theSteven Spielberg filmAmistad,[41] making him the only United States Supreme Court justice to play a judge in a motion picture.
| External videos | |
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 After Words interview with Linda Greenhouse onBecoming Justice Blackmun, May 1, 2005,C-SPAN |
In 2004 theLibrary of Congress released Blackmun's voluminous files. He had kept all the documents from every case, notes the justices passed between themselves, 10% 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, futureYale Law School deanHarold 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 asDavid Garrow have cast doubt on the accuracy of some of Blackmun's recollections, especially his thoughts on the Court's deliberations onRoe v. Wade.
Based on these papers,Linda Greenhouse ofThe New York Times wroteBecoming Justice Blackmun: Harry Blackmun's Supreme Court Journey.Jan Crawford'sSupreme Conflict also draws heavily from the papers.
Blackmun's former Supreme Court seat is currently held byKetanji Brown Jackson.
On February 22, 1999, Blackmun fell in his home and broke his hip. The next day, he underwent hip replacement surgery at Arlington Hospital inArlington, 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. Helay in repose in the Great Hall of theUnited States Supreme Court Building, and was buried five days later atArlington National Cemetery.[42] His wife died seven years later on July 13, 2006, at the age of 95, and was buried next to him.
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| Preceded by | Judge of theUnited States Court of Appeals for the Eighth Circuit 1959–1970 | Succeeded by |
| Preceded by | Associate Justice of the Supreme Court of the United States 1970–1994 | Succeeded by |
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