BLACKMUN, HARRY A. (1908–) (Update 1)

Harry Andrew Blackmun was born in the small town of Nashville, Illinois, on November 12, 1908, but spent most of his childhood in St. Paul, Minnesota. He attended Harvard College on a scholarship, graduating summa cum laude in 1929 with a major in mathematics. Torn between medicine and law, he chose the latter route and attended Harvard Law School, from which he graduated in 1932.

Immediately after graduation Blackmun served as a law clerk to Judge John B. Sanborn of the united states court of appeals for the Eighth Circuit. He then joined the Minneapolis law firm of Dorsey, Coleman, Barker, Scott, and Barber, where he specialized in tax, civil litigation, and estates. Blackmun left the firm in 1950 to become resident counsel at the Mayo Clinic in Rochester, Minnesota, where he says he enjoyed "the happiest years of my professional experience," with "a foot in both camps, law and medicine."

In 1959 President dwight d. eisenhower nominated Blackmun to replace his former employer, Judge Sanborn, on the Eighth Circuit. Blackmun served on that court for eleven years, and then, after the Senate refused to confirm Clement F. Haynsworth, Jr., and G. Harrold Carswell for abe fortas's seat on the Supreme Court, President richard m. nixon nominated Blackmun, thus accounting for the nickname that Blackmun uses to refer to himself: "Old No. 3." Blackmun was unanimously confirmed by the Senate and was sworn in as the Supreme Court's ninety-ninth Justice on May 12, 1970.

In appointing Blackmun, Nixon was looking for a judge who shared his philosophy of judicial restraint and would work to reverse the liberal, activist rulings of the warren court. Nixon's hopes for his new appointee, coupled with Blackmun's long-term friendship with Chief Justice warren e. burger, who had known Blackmun since childhood and had asked Blackmun to serve as the best man at his wedding, led the media to refer to Burger and Blackmun as the "Minnesota Twins." The two Justices' similar voting patterns during Blackmun's early years on the Court lent credence to the epithet.

Although Blackmun has generally lived up to Nixon's expectations in criminal procedure cases, he increasingly sided with Justice william j. brennan, jr. , in other controversial cases and is now considered part of the Court's liberal wing. For his part, Blackmun puts little stock in such labels, noting shortly after being nominated to the Supreme Court, "I've been called a liberal and a conservative. Labels are deceiving." He claims that his views have not changed over the years, but that "it's the Court that's changed under me."

Whatever the truth on this issue, Blackmun will likely be best remembered for his controversial and ground-breaking opinion in roe v. wade (1973). Roe held that the constitutional right of privacy protected a woman's right to an abortion, thereby in effect invalidating abortion statutes in forty-six states.

Blackmun has continued to advocate the constitutional right to abortion. He wrote the Court's opinions in planned parenthood of central missouri v. danforth (1976), invalidating requirements of spousal and parental consent, and in Akron v. Akron Center for Reproductive Health, Inc. (1983) and Thornburgh v. American College of Obstetricians and Gynecologists (1986), striking down various efforts to impose procedural restrictions limiting the availability of abortions.

More recently, however, Blackmun has found himself in dissent on the abortion issue. In Webster v. Reproductive Health Services (1989), Chief Justice william h. rehnquist, joined by Justices byron r. white and anthony m. kennedy, observed that Roe 's "rigid trimester analysis" had proven "unsound in principle and unworkable in practice." Although they did not believe the case required the Court to reconsider the validity of Roe 's holding, Justice antonin scalia's concurrence indicated that he was ready to overrule Roe. Responding in a passionate dissent, Blackmun voiced his "fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided" and concluded that "for today, at least, … the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows."

Although Blackmun's position on abortion has remained constant, in other areas he has demonstrated an admirable willingness to reconsider his views. His open-mindedness reflects his belief that the law is "not a rigid animal or a rigid profession," but rather a "constant search for truth," as well as his perception that a Supreme Court Justice "grows constitutionally" while on the bench.

One illustration of Blackmun's evolution is his increased tolerance of nontraditional lifestyles. Dissenting in cohen v. california (1971), Blackmun argued that the "absurd and immature antic" of wearing a jacket in court bearing the words "Fuck the draft" was not constitutionally protected. He likewise dissented in Smith v. Goguen (1974), concluding that the states may constitutionally prosecute those who "harm the physical integrity of the flag by wearing it affixed to the seats of [their] pants." More recently, however, he joined the controversial majority opinions in Texas v. Johnson (1989) and United States v. Eichman (1990), which held that the first amendment prohibited prosecution of defendants who had burned the American flag during political protests.

Blackmun's growing tolerance of diversity is also obvious in his dissent in bowers v. hardwick (1986), which upheld the criminalization of sodomy. His stinging dissent observed that "a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices" and 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."

As he has become more accepting of the unconventional, Blackmun has also become more suspicious of institutions. During his early years on the Court, he tended to defer to institutional prerogatives, believing that a judicial policy of noninterference would leave institutions free to exercise their discretion in the public interest. In his first majority opinion, wyman v. james (1971), Blackmun rejected a welfare recipient's fourth amendment challenge to home visits from the welfare department caseworker, whom Blackmun described as "not a sleuth but rather … a friend to one in need." He dissented in bivens v. six unknown named agents (1971) because he feared that creating a tort remedy for Fourth Amendment violations by federal agents would "open] the door for another avalanche of new federal cases," thereby tending "to stultify proper law enforcement and to make the day's labor for the honest and conscientious officer even more onerous."

More recently, however, Blackmun has become less trusting of public officials and institutions. In United States v. Bailey (1980), for example, his recognition of the "atrocities and inhuman conditions of prison life in America" led him to support a broader duress defense in prison escape cases than the majority was willing to recognize. The picture he painted of prison officials was not a sympathetic one: he described them as indifferent to prisoners' health and safety needs and even as active participants in "the brutalization of inmates."

Given his growing distrust of public officials, Blackmun has increasingly minimized the concerns about the federal courts' caseload expressed in his Bivens dissent and instead has opposed limitations on access to the courts. He believes that statutes authorizing federal civil rights suits represent "the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful." Accordingly, in Allen v. McCurry (1980) he dissented from the Court's holding that federal courts must give preclusive effect to prior state court adjudications in civil rights suits; in Rose v. Lundy (1982) he opposed the strict exhaustion requirement the majority imposed on habeas corpus petitioners; and in atascadero state hospital v. scanlon (1985) he joined Justice Brennan's dissent, which would have prohibited the states from invoking the eleventh amendment to bar federal question suits in federal court.

Another manifestation of Blackmun's increased suspicion of institutions has been his endorsement of more rigorous judicial scrutiny of social and economic legislation under the equal protection clause. Such legislation is upheld so long as it meets the rational basis test—that is, so long as the legislative means are rationally related to a legitimate governmental purpose. Over the years, the Court has given conflicting signals as to how deferential the rational basis test is. In United States Railroad Retirement Board v. Fritz (1980) the Court held that the test was satisfied if a judge could think of some plausible, hypothetical reason for the statutory scheme; whether this hypothetical justification bore any relationship to the legislature's actual purpose was, the Court said, "constitutionally irrelevant." Less than three months later, however, Blackmun's majority opinion in Schweiker v. Wilson (1981) observed that the rational basis test is "not a toothless one," and upheld the Medicaid provision at issue there only after finding that the statutory classification represented "Congress' deliberate, considered choice." Similarly, in his separate opinion in Logan v. Zimmerman Brush Company (1982), Blackmun found a legislative classification irrational, explaining that the justification for statutory classifications "must be something more than the exercise of a strained imagination."

The limitations imposed by federalism on the federal government's powers provide a second illustration of Blackmun's willingness to rethink his views. Blackmun represented the decisive fifth vote in national league of cities v. usery (1976), where the Court concluded that the tenth amendment prohibited Congress from regulating the wages and hours of state employees. His brief concurring opinion interpreted the majority opinion as adopting a balancing approach that sought to accommodate competing federal and state concerns and that would permit federal regulation in areas where the federal interest was "demonstrably greater." Although this interpretation may have represented wishful thinking on Blackmun's part, he did join the majority opinion in full.

After deserting the other Justices from the National League of Cities majority in both Federal Energy Regulatory Commission v. Mississippi (1982) and equal employment opportunity commission v. wyoming (1983), Blackmun ultimately wrote the opinion overruling National League of Cities in garcia v. san antonio metropolitan transit authority (1985). Blackmun explained that the National League of Cities approach had proven unworkable because it had been unable to identify a principled way of defining thoseintegral state functions deserving of Tenth Amendment protection. He likewise renounced his own balancing approachbecause it, too, had not provided a coherent standard capable of consistent application by the lower courts.

Though he ultimately rejected a balancing approach in the Tenth Amendment context, one of Blackmun's judicial trademarks has been his tendency to reach decisions by balancing conflicting interests. He believes that "complex constitutional issues cannot be decided by resort to inflexible rules or predetermined categories." Consequently, he pays close attention to the facts of a case and often makes decisions on a case-by-case basis, rather than a sweeping doctrinal one.

Illustrative of Blackmun's balancing approach are his majority opinions in Bigelow v. Virginia (1975), virginia state board of pharmacy v. virginia consumers council (1976), and bates v. state bar of arizona (1977), which provided the framework for the Court's modern approach to First Amendment cases involving commercial speech. Prior to these decisions, the Court considered commercial speech outside the realm of constitutional protection. In each of these three cases, however, Blackmun balanced the First Amendment interests of the advertisers against the public interests served by regulating commercial speech, because, as he explained in Virginia State Board of Pharmacy, "the free flow of commercial information is indispensable … to the proper allocation of resources in a free enterprise system, … [and] to the formation of intelligent opinions as to how that system ought to be regulated or altered." Applying this balancing test in each case, Blackmun struck down statutes banning advertisements of abortions, prescription drug prices, and legal fees. In each instance, he decided only the narrow issue confronting the Court, expressly declining to consider the extent to which commercial speech might be regulated in other contexts.

Blackmun's commercial speech opinions also illustrate another characteristic of his judicial philosophy—an interest in the real-world impact of the Court's decisions. His opinions often express concern that the Supreme Court operates too frequently from an "ivory tower." In his separate opinion in regents of university of california v. bakke (1978), for example, Blackmun urged his colleagues to "get down the road toward accepting and being a part of the real world, and not shutting it out and away from us." The balancing approach Blackmun adopted in the commercial speech cases likewise avoided abstract generalizations and focused the Court's attention on the concrete results of each case—in Virginia State Board of Pharmacy, for example, on the fact that "those whom the suppression of prescription price information hits the hardest are the poor, the sick, and particularly the aged."

Blackmun has written a series of majority opinions in cases discussing the constitutionality of state efforts to tax interstate and foreign commerce that similarly emphasizes the real-world impact of the state tax at issue in each case. In Complete Auto Transit, Inc. v. Brady (1977) his opinion overruled prior Supreme Court precedent that held state taxes on the privilege of doing business within the state per se unconstitutional as applied to interstate commerce, and instead adopted a four-part test that stressed the practical effect of the state tax. He followed the same approach in Department of Revenue v. Association of Washington Stevedoring Companies (1978) and then in Japan Line, Ltd. v. County of Los Angeles (1979), where he adapted the Complete Auto Transit test to state taxation of foreign commerce.

Blackmun's emphasis on real-world concerns has often been directed more specifically to the effect of the Court's decisions on the powerless, less fortunate members of society. He strives to do justice to the parties in each case, remarking in one interview, "To me, every case involves people.… If we forget the humanity of the litigants before us, … we're in trouble, no matter how great our supposed legal philosophy can be." This concern is evident in Blackmun's opinions as well. He concurred only in the result in O'Bannon v. Town Court Nursing Center (1980) because he found the majority's approach "heartless." His dissent in Ford Motor Company v. Equal Employment Opportunity Commission (1982), an employment discrimination case, criticized the majority's reliance on "abstract and technical concerns" that bore "little resemblance to those that actually motivated" the injured employees or anyone "living in the real world."

Aliens are perhaps the disadvantaged group for whom Blackmun has spoken most forcefully and consistently. In a series of majority opinions during the 1970s beginning with graham v. richardson (1971), which held that welfare benefits could not be conditioned on citizenship or duration of residence in this country, Blackmun urged that alienage be treated as a suspect classification. His more recent statements on behalf of aliens have come in dissent. In Cabell v. Chavez-Salido (1982), which upheld a statute that denied aliens employment in any "peace officer" position, Blackmun's dissent focused on the majority's failure to consider the practical impact of its holding. He objected that the Court's abandonment of strict scrutiny was more than an academic matter; in Cabell, for example, the majority's permissive standard of review might permit the state to exlude aliens from more than seventy jobs, including toll takers, furniture and bedding inspectors, and volunteer fire wardens.

Blackmun has also focused on the impact of the Court's decisions on the poor. Although one of his early opinions, United States v. Kras (1973), upheld a fifty-dollar filing fee in bankruptcy cases in part because paying the fee in installments would result in weekly payments "less than the price of a movie and little more than the cost of a pack or two of cigarettes," Blackmun recently has exhibited more understanding of the plight of the poor. In addition to the concerns articulated in the commercial speech cases, he dissented from the Court's decision in Beal v. Doe (1977) to approve a ban on the use of Medicaid funds for nontherapeutic abortions, characterizing the majority's assumption that alternative funding sources for abortions are available to indigent women as "disingenuous and alarming, almost reminiscent of: "Let them eat cake." Again, he contrasted the actual impact of the Court's ruling with its abstract, formalistic approach: "There is another world 'out there,' the existence of which the Court, I suspect, either chooses to ignore or fears to recognize."

Finally, Blackmun has spoken on behalf of racial minorities and the institutionalized. He has consistently voted to uphold affirmative action plans, concluding in his seperate opinion in Bakke that " in order to get beyond racism, we must first take account of race." In Youngberg v. Romeo (1982) his concurring opinion argued that involuntarily commited retarded persons are entitled to treatment as well as care. "For many mentally retarded people," he reasoned, "the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all their needs is as much liberty as they ever will know." His dissent in Bailey criticized the majority's "impeccable exercise in undisputed general principles and technical legalism" and argued that the scope of the duress defense available in prison escape cases must instead be evaluated in light of the "stark truth" of the "shocking" conditions of prison life.

Although history may best remember Blackmun as the author of Roe v. Wade, his contribution to the Court has in fact been much broader. He has thoughtfully balanced conflicting policies, conscientiously and thoroughly digesting the details of each case without reaching out to make decisions based on broad, sweeping generalizations. He has been concerned about the actual impact of the Court's decisions, refusing to permit his place on the Court to allow him to lose compassion for the "little people." He has been receptive to new ideas and exhibited a capacity for growth, in keeping with his recognition that "there is no room in the law for arrogance" and his sense that he, as well as the Supreme Court, has "human limitations and fallibility."

Kit Kinports
(1992)

(see also: Flag Desecration; Judicial Activism and Judicial Restraint.)

Bibliography

Kobylka, Joseph F. 1985 The Court, Justice Blackmun, and Federalism: A Subtle Movement with Potentially Great Ramifications. Creighton Law Review 19:9–49.

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

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

——1987 Justice Harry A. Blackmun: The Supreme Court and the Limits of Medical Privacy. American Journal of Law and Medicine 13:153–525.

Wasby, Stephen L. 1988 Justice Harry A. Blackmun in the Burger Court. Hamline Law Review 11:183–245.