Blackmun, Harry A. (1908–1999) (Update 2)

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BLACKMUN, HARRY A. (1908–1999) (Update 2)

Justice Harry A. Blackmun retired from the Supreme Court in June 1994. The opinions he wrote during his last years on the Court continued to reflect the "real world" pragmatism, the deepening sympathy for the powerless, and the strong commitment to pluralism that had marked his previous writings.

As earlier, Blackmun's pragmatism often led him to favor fact-intensive determinations over the application of hard-and-fast rules. Typical was Blackmun's opinion for the Court in mistretta v. united states (1989), in which he rejected separation of powers objections to the federal sentencing guidelines, because he concluded that neither the guidelines nor the commission that promulgated them realistically threatened the constitutional scheme of checks and balances. Similarly, in International Union, UMWA v. Bagwell (1994), Blackmun's final constitutional opinion for the Court, he refused to adopt any firm rule regarding when fines for violating civil contempt of court orders should count as criminal sanctions for purposes of the Sixth Amendment right to trial by jury. Instead, he reasoned that the determination of any given case should turn on the degree to which the circumstances implicate the need for the protection. He took an equally functional approach in his opinion for the Court in Pacific Mutual Life Insurance Company v. Haslip (1991), rejecting any "mathematical bright line rule" for determining when punitive damages violate due process. Blackmun remained particularly opposed to rigid doctrinal analysis when he believed it blocked justice for the weak. He decried, for example, the "sterile formalism" of the Court's decision in deshaney v. winnebago county department of social services (1989), which found the due process clause of the fourteenth amendment inapplicable to the failure of county officials to protect a four-year-old boy from his violently abusive father.

In contrast, Blackmun continued to champion strict and often expansive application of rules promoting pluralism and protecting minorities. A prime example was the rule of batson v. kentucky (1986), barring prosecutors from exercising peremptory jury challenges based on race. Blackmun wrote for the Court when it extended Batson to invalidate race-based peremptory challenges by criminal defendants in Georgia v. McCollum (1992), and gender-based peremptory challenges in J. E. B. v. Alabama (1994), in both cases stressing the message of hostility and exclusion sent when members of a group historically blocked from full participation in American self-government are systematically ejected from the jury box. Blackmun tended to be similarly uncompromising when applying the first amendment. His opinion for the Court in forsyth county v. nationalist movement (1992) voided an ordinance that capped parade permit fees at $1,000 but let a county administrator set the fee partly based on the group seeking the permit. "A tax based on the content of speech," Blackmun explained, "does not become more constitutional because it is a small fee." To protect religious diversity he favored strict application of the establishment clause and generous accommodation of minority faiths under the free exercise clause. He thus dissented sharply from the Court's determination in employment division, department of human resources of oregon v. smith (1990) that the free exercise clause provides no protection against neutral laws that only incidentally prohibit religious practices.

Blackmun remained strongly committed to the right to abortion recognized in his opinion for the Court in roe v. wade (1973), all the more so as attacks on that ruling escalated both inside and outside the Court. He dissented strenuously in Ohio v. Akron Center for Reproductive Health (1990), when the Court upheld a parental notification requirement for abortions performed on minors, and in rust v. sullivan (1991), when the Court upheld the "gag rules" barring federally funded family-planning services from providing information about abortion. His opinions in these cases focused on the effects the challenged rules would have on women seeking abortions, and highlighted, as had Blackmun's earlier opinions in thornburgh v. american college of obstetricians and gynecologists (1986) and webster v. reproductive health services (1989), the degree to which Blackmun had come to view Roe as principally about a woman's right to self-determination. When a bare majority of the Court reaffirmed the central holding of Roe in planned parenthood v. casey (1992), Blackmun commended the plurality opinion as "an act of personal courage and constitutional principle," but pointedly warned that his own tenure on the Court was drawing to a close.

Ultimately, however, Blackmun's sharpest and most revealing split with the rehnquist court came not over abortion but over capital punishment. Blackmun's early opinions on the U.S. Court of Appeals for the Eighth Circuit and on the Supreme Court had made clear that, although he believed the death penalty was constitutional, he was personally opposed to executions and found cases challenging them "excruciating." Over time he grew increasingly uncomfortable with the Supreme Court's handling of capital cases. Finally, in an extraordinary dissenting opinion from the denial of certiorari in Callins v. Collins (1994), Blackmun announced his conclusion that the death penalty was unconstitutional. He explained that experience had shown it impossible to administer capital punishment in a manner free from racial discrimination and caprice, and yet sensitive to the requirements of individualized fairness. Moreover, he charged, the Court had stopped even trying to address that challenge.

Callins was in several respects a fitting capstone to Blackmun's service on the Court. It reflected both his constant attention to the practical operation of the principles announced by the Court and his long-standing concern for the law's treatment of outcasts. It also illustrated his willingness to reconsider his earlier views in light of further experience, a willingness rooted in his open acknowledgement of the difficulty of constitutional adjudication.

Although Justice felix frankfurter famously described his version of judicial restraint as "judicial humility," its most vocal supporters, Frankfurter included, have not been judges renowned for their modesty. Blackmun, in Callins and throughout his career, exemplified a different, more straightforward kind of judicial humility. He had a keen awareness of the limits of human certainty, and hence of the possibility that he himself might be mistaken. Nevertheless he was steadfast in defending the Constitution as he understood it, particularly when he understood it to protect those most needing protection. The model he provided of humane judging—openly provisional yet resolutely compassionate—is perhaps his greatest legacy.

David A. Sklansky


Coyne, Randall 1995 Marking the Progress of a Humane Justice: Harry Blackmun's Death Penalty Epiphany. University of Kansas Law Review 43:367–416.

Karlan, Pamela S. 1993 Bringing Compassion Into the Province of Judging: Justice Blackmun and Outsiders. Dickinson Law Review 97:527–540.

——1994 From Logic to Experience. Georgetown Law Review 83:1–4.

Koh, Harold Hongju 1994 The Justice Who Grew. Journal of Supreme Court History 1994:5–8.