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Blackmun, Harry A. (1908–)

BLACKMUN, HARRY A. (1908–)

Nothing in Harry A. Blackmun's background presaged that within three years of his appointment he would write the most controversial Supreme Court opinion of his time—roe v. wade (1972)—providing significant constitutional protection to women and their doctors in the area of abortion.

After graduating from public school in St. Paul, Minnesota, where he and warren e. burger were elementary school classmates, young Blackmun attended Harvard College, having graduated in 1929 summa cum laude, and Harvard Law School, being graduated in 1932. He practiced law in St. Paul and then as resident counsel at the Mayo Clinic in Rochester, Minnesota. In 1959 President dwight d. eisenhower appointed him to the Eighth Circuit, where he served for eleven unremarkable years until, in 1970, President richard m. nixon selected him to fill the vacancy on the Supreme Court created by the resignation of Justice abe fortas.

Blackmun's early years on the Supreme Court did little to disturb his image as a judicial clone of his boyhood friend Warren Burger, at whose wedding he had served as best man. The two voted together so often that the press dubbed them the Minnesota Twins.

Blackmun's voting patterns shifted over the years until by the mid-1980s he was more likely to vote with Justices william j. brennan and thurgood marshall in defense of a broad vision of constitutional rights than with Burger. When asked whether his views have changed, Blackmun asserts that he has remained constant while the Court has shifted, causing his recent opinions merely to appear more libertarian. If, however, one compares early and late Blackmun opinions, it is difficult to accept Blackmun's protestation that nothing has changed in his legal universe except the backdrop.

One widely held hypothesis seeking to explain Blackmun's apparent shift in views is linked to the stormy public reaction that greeted what is undoubtedly his most significant Supreme Court opinion—Roe v. Wade. In Roe, drawing on his years at the Mayo Clinic, Blackmun brought a medical perspective to the controversy over the constitutionality of state laws prohibiting abortion. In a now familiar construct, he divided pregnancy into trimesters, holding that the state had no compelling interest in preserving fetal life during the first two trimesters, but that the interest in viable fetal life became compelling in the final trimester. In the years following Roe, Blackmun vigorously defended the right of a pregnant woman, in consultation with her doctor, to decide freely whether to undergo an abortion, writing a series of opinions striking down state statutes designed to place obstacles in a woman's path and vigorously dissenting from the Court's willingness to uphold a ban on federal funds to poor women seeking abortions.

Public reaction to Blackmun's abortion decisions was intense. He was subjected to vigorous personal criticism by individuals who believe deeply in a moral imperative of preserving fetal life from the moment of conception. Critics called his opinion in Roe a classic example of judicial overreaching and even compared it to Chief Justice roger b. taney's infamous opi1857nion in dred scott v. sandford 1857.

Subjected to sustained personal and professional criticism after Roe, Blackmun was forced, according to one view, to confront fundamental questions about his role as a Supreme Court Justice. From the crucible of the personal and professional pressures generated by his abortion decisions, many believe that there emerged a Justice with a heightened commitment to the use of judicial power to protect individual freedom.

In fact, the linkage between Blackmun's defense of a woman's right to choose to undergo an abortion and his other major doctrinal innovation—the commercial speech doctrine—is a direct one. In Bigelow v. Virginia (1975) Blackmun wrote for the Court invalidating a ban on advertisements by abortion clinics and suggesting for the first time that a consumer's right to know might justify First Amendment protection for speech that merely proposed a commercial transaction. One year later, in virginia state board of pharmacy v. virginia citizens consumer council (1976) and bates v. state bar of arizona (1976), he struck down bans on advertising by pharmacists and lawyers, explicitly granting First Amendment protection for the first time to commercial speech. In his more recent commercial speech opinions, Blackmun's First Amendment analysis has become more trenchant, with his concurrence in central hudson gas & electric co. v. public service commission (1980) ranking as a milestone in Supreme Court First Amendment theory.

Blackmun's third principal contribution to constitutional doctrine—the defense of aliens—precedes his abortion decisions. In graham v. richardson, one of Blackmun's early majority opinions, he wrote the opinion that outlawed discrimination against resident aliens in granting welfare benefits, holding that aliens, as a politically powerless group, were entitled to heightened judicial protection under the equal protection clause. In later years, his majority opinions invalidated attempts to exclude aliens from all civil service jobs and from state-funded college scholarships; and, although he concurred in the Court's decision upholding the exclusion of aliens from the state police, he vigorously dissented from decisions upholding bans on alien public school teachers and deputy probation officers.

Blackmun's most significant federalism opinion dramatically illustrates his evolution on the Court. In 1976 he provided the crucial fifth vote for Justice william h. rehnquist's opinion in national league of cities v. usery, invalidating congressional minimum wage protection for municipal employees as a violation of state sovereignty. A decade later, however, Blackmun changed his mind and, abandoning the Rehnquist-Burger position, wrote the Court's opinion in garcia v. san antonio metropolitan transportation authority (1985), rejecting their view of state sovereignty and overruling Usery.

The hypothesis that Blackmun's apparent drift toward the Brennan-Marshall wing of the Court is linked to the controversy over his abortion decisions is not wholly persuasive. It does not explain Justice Blackmun's pre-Roe decisions protecting aliens and it overlooks the fact that as a little known judge of the Eighth Circuit, Blackmun was among the first federal judges to declare prison conditions violative of the Eighth Amendment. Furthermore, it does not explain why, in the criminal law and criminal procedure area, Blackmun's post-Roe jurisprudence continues to construe Fourth, Fifth, and Sixth Amendment protections narrowly.

A more fruitful approach to Blackmun's voting patterns is to take seriously his protestation that a consistent judicial philosophy underlies his Supreme Court career. The task is difficult, for Blackmun's judicial philosophy defies easy categorization in terms of fashionable labels. He is "liberal" in cases involving racial minorities and aliens, but "conservative" in the criminal procedure area. His abortion decision in Roe has been called the most "activist" in the Court's history, but his Garcia federalism opinion counsels "judicial restraint." His commercial speech opinions are rigorously "libertarian," but his tax, antitrust law, and securities law opinions champion vigorous government intervention. Not surprisingly, therefore, attempts to evaluate Blackmun's work using currently fashionable yardsticks often lead to a critical judgment that he is doctrinally inconsistent. In fact, Blackmun's Supreme Court work appears linked by a unifying thread—a reluctance to permit preoccupation with doctrinal considerations to force him into the resolution of an actual case on terms that fail to do intuitive justice to the parties before the Court.

Blackmun's commitment to a jurisprudence of just deserts is reflected in three characteristic motifs that pervade his opinions. First, he is openly mistrustful of rigidly doctrinaire analyses that force him into unfair or unreasonable resolutions of cases. In rejecting the Court's two-tier equal protection analysis in favor of a more "flexible" doctrine, or expressing skepticism about prophylactic exclusionary rules in the criminal process, or searching for a federalism compromise based more on pragmatism than on theory, or rejecting automatic use of the overbreadth doctrine in first amendment cases, Justice Blackmun refuses to allow doctrine to force him into dispute resolutions that seem intuitively unfair or that give an unjust windfall to one of the parties before the Court.

Second, his opinions are fact-oriented, canvassing both adjudicative and legislative facts in an attempt to place the dispute before the Court in a realistic context. In his more recent opinions, he frequently scolds the Court for slighting a case's factual context, often complaining that the Court's desire to announce law has taken it beyond the actual dispute before the Court.

Finally, he insists upon results that accord with his view of the "real" world. His decisions have tended to support efforts to undo the consequences of racial discrimination and have demonstrated an increasing empathy for the plight of the powerless, while demonstrating little sympathy for lawbreakers. Such a personal vision of "reality" must ultimately inject a dose of subjectivism into the decision-making process. Yet Justice Blackmun's qualities of mind and heart serve to remind the Court that a doctrinaire, intellectualized jurisprudence needs to be balanced by a jurisprudence grounded in intuitive fairness to the parties, human warmth, and pragmatic realism.

Burt Neuborne
(1986)

Bibliography

Fuqua, David 1980 Justice Harry A. Blackmun: The Abortion Decisions. Arkansas Law Review 34:276–296.

Note 1983 The Changing Social Vision of Justice Blackmun. Harvard Law Review 96:717–736.

Schlessinger, Steven R. 1980 Justice Harry Blackmun and Empirical Jurisprudence. American University Law Review 29:405–437.

Symposium 1985 Dedication to Justice Harry A. Blackmun—Biography; Tributes. Hamline Law Review 8:1–149.

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