BLACKMUN, HARRY ANDREW

Harry Andrew Blackmun, associate justice of the U.S. Supreme Court from 1970 to 1994, stepped into a political maelstrom when he authored the much-lauded, much-reviled 1973 opinion roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Roe guaranteed access to safe, legal abortions for women in the first trimester of pregnancy. Depending on one's viewpoint, Blackmun was considered either a public hero or a Supreme Court villain, for authoring the opinion upholding a woman's right to privacy in the matter of abortion.

An unassuming and highly intelligent man, Blackmun seemed an unlikely symbol for an explosive social and political issue. Born November 12, 1908, in Nashville, Illinois, he spent his childhood in St. Paul, Minnesota, where his father ran a hardware and grocery store. Blackmun was an outstanding student and received a scholarship to Harvard University, where he graduated summa cum laude with a mathematics degree in 1929. He went on to earn a law degree from Harvard Law School in 1932.

Blackmun's first job out of law school was a federal clerkship for Judge John B. Sanborn, of the U.S. Court of Appeals for the Eighth Circuit. After his clerkship, Blackmun spent 16 years practicing law in Minneapolis as a tax and trust specialist at a large, prestigious firm. In 1941, Blackmun and Dorothy E. Clark married; they later raised three children.

Blackmun also taught at the St. Paul College of Law (later renamed the William Mitchell College of Law) and at the University of Minnesota Law School. In 1950, he became head counsel at the Mayo Clinic, in Rochester, Minnesota, a position he particularly enjoyed because of a lifelong interest in medicine.

In 1959 President dwight d. eisenhower appointed Blackmun to the U.S. Court of Appeals for the Eighth Circuit to replace his former boss, Judge Sanborn. While on the appeals court, Blackmun was a diligent and fair-minded judge, with a conservative outlook. A significant portion of his decisions involved tax issues.

"Abortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. but those disagreements … do not now relieve us of our duty to apply the Constitution faithfully."
—Harry Blackmun

Blackmun sat on the Eighth Circuit until 1970 when President richard m. nixon appointed him to the U.S. Supreme Court.

Blackmun was Nixon's third choice for the Supreme Court seat formerly held by Associate Justice abe fortas. Earlier, Nixon had nominated clement f. haynsworth jr. and g. harrold carswell, two candidates with unconvincing qualifications. After the Senate refused to confirm either Haynsworth or Carswell, Nixon turned to Blackmun as a candidate with sterling legal credentials and a fine personal reputation. Unlike the rancorous Senate proceedings for the two failed candidates, Blackmun's confirmation hearing was quick and congenial. He was approved unanimously by the Senate on May 12, 1970.

When Blackmun joined the Supreme Court, he teamed up with his boyhood friend warren e. burger, who was chief justice. Years before, Blackmun had been best man at Burger's wedding. The two St. Paul natives were immediately dubbed the Minnesota Twins.

Blackmun entered the Court with the reputation of being a hardworking, irreproachable, and conservative jurist. During his quarter century on the Supreme Court, his reputation changed in one significant way: although he continued to be seen as hardworking and irreproachable, he was perceived less and less as a conservative.

Court observers noted that Blackmun's voting record indicated a swing to the political left. His support for civil liberties in the areas of commercial speech and the rights of aliens, as well as his acceptance of a broadened judicial role, resulted in an alliance with liberal justices thurgood marshall and william j. brennan jr.

Blackmun insisted that he was merely taking a central ground on the issues before the Court. Nevertheless, in 1991, he acknowledged the change in public perception, saying, "having been appointed by a Republican president and being accused now of being a flaming liberal, the Republicans think I'm a traitor and the Democrats don't trust me. And so I twist in the wind, I hope, beholden to no one, and that's just exactly where I want to be."

Roe is Blackmun's most famous contribution as a Supreme Court justice. Writing for the seven-member majority, Blackmun ruled that women could obtain abortions without interference from the state as a matter of right under the fourteenth amendment to the U.S. Constitution. The case came about as a challenge to a Texas law (Tex. Rev. Civ. Stats. arts. 1191–1194, 1196) that made abortion illegal unless performed to save the life of the mother. The law was challenged by a pregnant woman as a violation of her right to privacy.

Blackmun held that the privacy rights of the pregnant woman outweighed the state's interest. His knowledge of medical issues is evident in the case. Blackmun based his ruling on a three-part division of pregnancy: the first trimester, when a woman can obtain an abortion and the state has no interest; the second trimester, when the state has an interest in the licensing of the performing physician; and the last trimester, when the fetus is considered viable, or capable of living outside the mother's womb, and the state's interest reaches a level where the state may restrict access to abortion. Although Blackmun earned praise for this ruling, he also became the target of protests and death threats.

In another indication of his more liberal leanings, Blackmun publicly denounced capital punishment in 1994. Two months before his retirement from the Court, Blackmun, who had been a strong and consistent supporter of the death penalty, announced that he had come to believe that the system for capital punishment was so riddled with bias and error as to be unworkable. "From this day forward," he stated, "I no longer shall tinker with the machinery of death." After his retirement in April 1994, Blackmun continued to come daily to the court and go to the cafeteria for breakfast with his clerks. Blackmun died in Washington, D.C., on March 4, 1999, at the age of 90.

further readings

Abraham, Henry Julian. 1999. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New York: Rowman & Littlefield.

Barnes, Catherine A. 1978. Men of the Supreme Court: Profiles of the Justices. New York: Facts on File.

Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quarterly.

Cushman, Claire, ed. 1993. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington, D.C.: Congressional Quarterly.

Levy, Leonard. 1974. Against the Law: The Nixon Court and Criminal Justice. New York: Harper & Row.

Schwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford Univ. Press.

cross-references

Abortion; Privacy.

Harry Blackmun

Harry Blackmun (born 1908), appointed to the U.S. Supreme Court by President Nixon, became a highly regarded justice usually taking a middle-of-the-road position.

Harry A. Blackmun was born November 12, 1908, in Nashville, Illinois, but spent his youth in the Minneapolis-St. Paul area of Minnesota where his father, Corwin Manning Blackmun, was a businessman. There he developed a lifelong friendship with Warren Burger, a school classmate. Attending Harvard as a mathematics major, he thought of becoming a physician, but instead chose law, graduating in 1932 from the Harvard Law School, where he had studied under Felix Frankfurter. Returning to St. Paul, he served as law clerk to a U.S. circuit court judge, John B. Sanborn, whom he later succeeded on that court. In 1933 he took a teaching position at the St. Paul College of Law, and in 1945 he began teaching at the University of Minnesota Law School. He then had a private practice in Minneapolis until he became resident counsel for the famous Mayo Clinic in Rochester, Minnesota. Appointed by Eisenhower to the eighth circuit, he developed a reputation as a conservative, relatively progressive in civil rights matters and moderate in civil liberties cases.

Appointed to the Supreme Court by Richard Nixon, Blackmun was confirmed without opposition. In his first years Blackmun was frequently described as one of the "Minnesota Twins," given the frequency of his agreement with Chief Justice Burger. This pattern changed in time, with Blackmun moving to a more liberal posture.

Blackmun's lower court career presaged his later judicial behavior. A believer in judicial restraint and limitation of the court's broad policy-making prerogatives, his decisions reflected his desire to keep issues narrow and avoid setting forth broad and bold principles.

Blackmun's Supreme Court opinions ranged widely. Generally devoid of any overarching ideology or philosophy, they reflected his own personal views and at times seemed somewhat contradictory. Very much a case by case justice, his absence of dogmatism contrasted with his more conservative colleagues such as William Rehnquist and Sandra Day O'Connor.

Blackmun wrote opinions of significance in four areas. In First Amendment cases, although he dissented from the Court's ruling that stopped the government from repressing The Pentagon Papers, he overturned a "gag order" imposed by a Nebraska court prohibiting commentary or reporting on a murder trial (Nebraska Press Association v. Stuart, 1975). Here he attempted to balance First Amendment rights of free press with Sixth Amendment rights of fair trial. He was conservative on obscenity cases, upholding a federal conviction which prohibited the mailing of obscene material even though the books involved were not obscene under applicable state law (Smith v. California, 1977). His landmark free speech cases were those overruling the commercial speech doctrine, extending speech protection to commercial advertising (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976) and to attorneys to advertise their professional services (Bates v. State Bar of Arizona, 1977). The press, consumers, and the general public all benefitted from these rulings.

Blackmun's most famous and controversial ruling was his opinion in Roe v. Wade (1973), declaring that the right of privacy included a woman's right to terminate her pregnancy by means of an abortion. This effectively invalidated the varying abortion statutes in 46 of the 50 states and provoked a moral, philosophical, and theological controversy that has seldom abated since that time. Blackmun found women's fundamental right to personal privacy in the Fourteenth Amendment's concept of personal liberty affording a woman protection in determining whether or not to terminate her pregnancy. The right, however, was not absolute, and he made clear that it could be regulated when the state's interest was "compelling." Subsequently, he set aside state laws requiring women to get the consent of a spouse or a parent before having an abortion (Planned Parenthood of Central Missouri v. Danforth, 1976).

In the area of criminal law, Blackmun generally voted to curb the expansion of defendant's rights. He took a restrictive view of the "exclusionary" rule and modified the guarantees of the Fourth Amendment permitting routine police inventory searches of cars without warrants (South Dakota v. Opperman, 1976). He sustained the right of states to use six-member juries (Ballew v. Georgia, 1978), but held that due process does not require jury trials in state juvenile delinquency proceedings (McKeiver v. Pennsylvania, 1971). On the other hand, he did not always vote for the government. He sustained the Miranda warnings given after an arrest and found police misconduct indefensible in a number of instances. His own personal distaste and abhorrence for the death penalty was reflected in opinions in that area which put him at odds with the Court's majority.

On environmental issues he called for an imaginative expansion of traditional standing concepts that would allow public interest groups to enter environmental cases. His rulings regarding legal problems of the poor, on the other hand, proved unsympathetic.

In the civil rights area, Blackmun's record was moderately progressive. He sustained the rights of African American children to enter private schools on the same basis as white children (Runyon v. McCrary, 1976) and struck at racial restrictions in private swimming clubs (Tillman v. Wheaton-Heven, 1973). He also held that Mexican American defendants had a right to proper representation on grand juries which were investigating them (Castenada v. Partida, 1977).

Although Blackmun was frequently harrassed and assailed by anti-abortionists, he retained his composure and dignity and, in the process, much public respect. He married Dorothy E. Clark on June 21, 1941, and was the father of three daughters. Blackmun has taught law as a visiting instructor at institutions including Louisiana State University Law School and Tulane University. He retired from the bench in 1994.

Further Reading

There is a good sketch of Blackmun's career up to the late 1970s in Leon Friedman, ed., The Justices of the United States Supreme Court: Their Lives and Major Opinions, Vol. V (1978). Good brief material is also available in Catherine A. Barnes, Men of the Supreme Court: Profiles of the Justices (1978) and Congressional Quarterly, Guide to the U.S. Supreme Court (1979). Although it would have to be obtained in a law library or Bar Association library, the January 1985 Hamline Law Review comprises a whole issue "Dedicated to Justice Harry A. Blackmun on the Occasion of His Twenty-Fifth Year as a Federal Judge" and includes articles affording lengthy assessments of his career. □

Blackmun, Harry Andrew (b. Nashville, Ill., 12 Nov. 1908; d. 4 Mar. 1999, Arlington, Va., interred Arlington National Cemetery), associate justice, 1971–1994. Blackmun grew up in St. Paul, Minnesota, where his father owned a small store. He was educated at Harvard College, where he majored in mathematics, and at Harvard Law School. His early interest in medicine was reflected in his service as counsel for the Mayo Clinic. In 1959, President Dwight D. Eisenhower appointed him to the U.S. Court of Appeals for the Eighth Circuit, to fill the seat vacated by John Sanborn, for whom Blackmun had clerked.

The “third man” after the defeated nominations of judges Clement Haynsworth and G. Harrold Carswell, Blackmun was appointed to the Supreme Court by President Richard Nixon. He was at the time a little‐known federal judge, and it was thought he would bring to the Court the same values as his friend Chief Justice Warren E. Burger, playing his part in Nixon's effort to reorient the Court in a conservative ideological direction. Initially, Blackmun's voting was quite close to Burger's—something Burger may have taken for granted—and they were sometimes referred to as the “Minnesota Twins.” He was quiet, even diffident, and a slow writer, which limited his influence within the Court. As he became more sure of himself, however, he moved away from Burger toward the liberal end of the Court, becoming outspoken and explicit in his efforts to keep an increasingly conservative Court on center.

Blackmun's early opinions reflected conservatism, support for law enforcement, and a general deference to government and social institutions. Later he came to demonstrate a growing skepticism about those institutions' effectiveness in relation to the common person. By the mid‐1980s, Justice Blackmun, giving a high level of support for civil liberties claims, had become a regular voting partner of Justices William J. Brennan and Thurgood Marshall. His judicial transformation manifested itself even on matters of criminal procedure, where his initial conservatism had lasted longest. He questioned the Court's search‐and‐seizure positions and disagreed with the Court's haste in upholding death‐penalty convictions, thus bringing his votes into line with his early statement, in Furman v. Georgia (1972), of “distance, antipathy, and … abhorrence” for the death penalty, which for him “violated childhood's training and life's experience” (p. 405).

Blackmun made a number of major contributions to Supreme Court jurisprudence. He was a key player on the question of whether Congress, through the Commerce Clause, could impose requirements on state and local governments, and he wrote for the Court in Garcia v. San Antonio Metropolitan Transit Authority (1985) in holding local governments subject to minimum wage requirements, saying that their representation in Congress provided states and localities with adequate protection (see Commerce Power). He also showed he could be the states' friend by allowing them to impose nondiscriminatory, properly apportioned franchise taxes and by supporting state economic policy making if it was not narrowly parochial.

His changing views on judicial federalism paralleled his changes on civil liberties. At first he was unwilling to let state courts provide greater federal constitutional protection than did the U.S. Supreme Court, and he took a restrictive view of federal courts' use of habeas corpus to redress state defendants' claims. Later, however, Blackmun wished to make habeas more available for those pressing federal constitutional claims, and he also gave a broad reading to title 42, section 1983 of the U.S. Code, the primary federal civil rights statute. In his Madison Lectures at New York University Law School in 1984, Blackmun argued strongly that federal courts should work actively to uphold individuals' federal rights asserted in section 1983 cases.

Blackmun's major civil liberties contributions concerned commercial speech, aliens' rights, and abortion. On the question of First Amendment protection for “commercial speech” such as lawyer advertising, he opposed the states' paternalistic position of denying access to information that advertising would provide and argued that consumers ought to have more, not less, information. He took the side of aliens denied welfare benefits without satisfying long residence requirements or barred from holding public jobs (see Alienage and Naturalization). His key opinions opposed states' denying aliens the right to be civil servants, public school teachers, or probation officers; however, he was willing to allow a ban on their being police officers.

Blackmun's best‐known contributions are his abortion opinions, particularly those for the Court in Roe v. Wade and Doe v. Bolton (1973), in which, respectively, the justices invalidated criminal penalties for performing abortions and established the basic trimester framework for evaluating whether and when the state could impose restrictions on a woman's freedom to obtain an abortion. He was strongly committed to any woman's right to obtain an abortion and reacted strongly against the Court's upholding the government's refusal to provide Medicaid funding of abortions. The strength of his commitment continued through the many cases in which the Court dealt with states' efforts to limit abortion and was nowhere clearer than in his dissent in Webster v. Reproductive Health Services (1989). There he attacked his colleagues for dismantling Roe v. Wade and for “cast[ing] into darkness the hopes and visions of every woman who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children,” creating “inevitable and brutal consequences” with the government again able to intrude improperly into women's lives (pp. 3077–3078).

When Blackmun took his seat on the Supreme Court, few would have expected him to be a spokesperson for those on whom the hand of government weighed heavily. His service on the Court signified the possibility, and actuality, that a justice can change views when confronted with situations that call deeply held beliefs into question. Blackmun will also remain the symbol of one of the nation's most divisive issues—abortion. However, he stood out most as a thoughtful justice representing centrism laced with compassion.

Stephen L. Wasby

Harry Andrew Blackmun , 1908–99, associate justice of the U.S. Supreme Court (1970–94), b. Nashville, Ill. Educated at Harvard, he practiced law privately, was general counsel to the Mayo Clinic (1950–59), then became a federal circuit court judge. He was appointed to the Supreme Court by President Nixon . Blackmun was initially allied with the conservatives on the court, including his boyhood friend Warren Burger , but is best known for his 1973 majority opinion in Roe v. Wade , legalizing abortion. By the 1980s he tended toward a liberal view in most areas, particularly civil-rights cases.

Bibliography: See L. Greenhouse, Becoming Justice Blackmun (2005).