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Justice Blackmun participated in 3653 cases.
Joined with Majority2616
Dissented599
Concurred146
Concurring in Judgment253
Did Not Participate75
Judgment of the Court10
Jurisdictional Dissent29

Blackmun, Harry Andrew

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Birth: November 12, 1908, N ashville, Illinois.

Education: Harvard College, B.A., summa cum laude, 1929; Harvard Law School, LL.B., 1932.

Official Positions: Clerk, U.S. Court of Appeals for the Eighth Circuit, 1932–1933; judge, U.S. Court of Appeals for the Eighth Circuit, 1959–1970.

Supreme Court Service: Nominated associate justice by President Richard Nixon, April 15, 1970, to replace Abe Fortas, who had resigned; confirmed by the Senate, May 12, 1970, by a 94–0 vote; took judicial oath June 9, 1970; retired August 3, 1994; replaced by Stephen G. Breyer, nominated by President Bill Clinton.

Death: March 4, 1999, Arlington, Virginia.


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Harry Andrew Blackmun
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Harry Andrew Blackmun

I suppose I'll carry Roe to my grave,” Blackmun told a reporter, referring to Roe v. Wade (1973), the famous case in which he enunciated the constitutional right to abortion. He received thousands of letters following the decision: “Think of any name; I've been called it in these letters.” Conversely, he was lauded by women's groups as a hero. It was an odd position for someone who, when nominated for the Court, was called a “strict constructionist” by conservative senator Strom Thurmond, R-S.C., and who had said, “I'd like to regard myself as being a member of the center of the Court.” But Roe signaled a major change of emphasis in Blackmun's opinions, from a deference to government institutions to what one of his clerks called an “openness to knowledge beyond the lawbooks” and a marked empathy for those disadvantaged by society.

Blackmun was nominated by President Nixon after the Senate rejected two other nominees whom Nixon had counted on to be “tough on criminals” and supportive of government policies. Blackmun's decisions for the Eighth Circuit Court of Appeals fit that description. Nevertheless, his modesty, innate decency, and intelligence impressed dubious senators, and he was confirmed unanimously within a month. Both the modesty and a wry self-deprecating sense of humor were apparent in his labeling himself thereafter as “Old Number Three.”

Born in Illinois, Blackmun grew up in St. Paul, Minnesota, where his father opened a grocery and hardware store. Blackmun went to Harvard on a scholarship presented by the Harvard Club of Minnesota. He supplemented it by working as a janitor, milkman, paper grader, and handball court painter. He would take his memories of poverty to the Court with him, telling an interviewer: “Maybe I'm oversensitive, but these are very personal cases. We're dealing with people—the life, liberty and property of people. And because I grew up in poor surroundings, I know there's another world out there that we sometimes forget.” He majored in mathematics, graduated summa cum laude (1929) and Phi Beta Kappa, and went on to receive his law degree at Harvard (1932). His impressive record earned him a clerkship with the U.S. Court of Appeals for the Eighth Circuit (1932–1933).

A year later, Blackmun joined a Minneapolis firm and by 1949 had risen from associate to junior partner and then general partner, specializing in estates, taxation, and general civil litigation. He also taught an occasional course at the St. Paul College of Law and the University of Minnesota Law School.

Blackmun had wavered between medicine and law after graduating from college. Delighted at the opportunity “to have a foot in both camps,” in 1950 he became resident counsel for the Mayo Clinic in Rochester, Minnesota. The job ended in 1959, when President Dwight Eisenhower appointed him to the appeals court for which he had clerked.

Blackmun wrote more than 200 signed opinions while on the Eighth Circuit court. He tended to defer to the federal and state legislatures and to the Supreme Court and to decide disputes between the government and individuals in favor of the government, particularly in criminal justice cases, but to speak out strongly in support of civil rights. He personally opposed capital punishment, for example, but ruled on the basis of what he considered a state's right to impose it in Maxwell v. Bishop (1968). Believing that prior Supreme Court decisions gave a white homeowner the right to refuse to sell to a black would-be purchaser, he suggested that the Court alter its doctrine—which it subsequently did in Jones v. Alfred H. Mayer Co. (1967, 1968). At the same time, he wrote opinions forbidding the perpetuation of de facto segregated schools (Kemp v. Beasley, 1970), ordering the rehiring of black faculty members after an all-black school was closed pursuant to a desegregation order (Smith v. Board of Education, 1966), and striking down racial discrimination on juries (Bailey v. Henslee, 1961). Demonstrating a somewhat cavalier attitude toward free speech, he upheld the convictions of religious protesters against the Vietnam War who demonstrated on a military reservation (Holdrige v. United States, 1960). He then upheld the suspension of college students also protesting the war (Esteban v. Central Missouri State, 1965), chiding them for not acting more maturely. He saw no violation of double jeopardy when a person was subjected to two successive trials for the robbery of two victims playing in one card game (Ashe v. Swenson, 1968), which the Supreme Court reversed two years later. He almost invariably turned down appeals based on Fourth or Fifth Amendment grounds, for example Cox v. United States (1967) and Jarrett v. United States (1970). His fellow judges remembered him as “the most studious member of the court,” and “deliberate, courageous and moderate.”

Blackmun continued to defer to government and precedent in his early years on the Supreme Court. In his first opinion, a dissent from a per curiam decision overturning a Minnesota obscenity conviction (Hoyt v. Minnesota, 1970), he protested against treating state courts as “so obviously misguided” that they could be summarily reversed. His first opinion for the Court, Wyman v. James (1971), also upheld state action. Accepting New York's argument that home visits by caseworkers did not abridge a welfare recipient's protection against unreasonable searches, he noted that seventeen additional states believed that the visits were “rehabilitative” and in the best interests of the child. Agreeing in Furman v. Georgia (1972) that the death penalty was constitutional, he declared, “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty.” But he added, “We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decisions such as these.”

Gradually, he adjusted to the wide-ranging implications of many of the cases handled by the Supreme Court and the exciting and sobering realization that each case affected not merely one plaintiff or defendant but the entire country. He suggested in interviews that he was also affected by the change of justices and the Court's concomitant shift to the right, viewing his obligation as maintaining the Court's center. Whatever the explanation, his opinions became more reflective of his views and more empathetic to individuals. He had no less respect for institutions but insisted that they be held accountable, particularly by the Court. He began using the phrases “real life” and “real world,” resembling an equity judge in his reliance upon balancing tests to decide most cases, trying to ascertain where fairness and justice lay.

His sense of the “real world” was apparent in Roe, which, with its companion case Doe v. Bolton, struck down a Texas abortion law that permitted abortion only to save the life of the mother and a Georgia statute requiring that a doctor's decision to perform an abortion be approved by two additional physicians and a hospital committee. Drawing upon the right of privacy implied by the Fourteenth Amendment and the Court's decisions in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), Blackmun suggested a legal rule based on the medically recognized stages of pregnancy: no state health interest and therefore no permissible interference by the state during the first trimester, during which medicine had made abortions at least as safe as childbirth and any decision about abortion was to be made by the woman and her physician; a state interest in protecting the woman's health during the second trimester, when regulations concerning the qualifications of persons performing abortions and the facilities in which abortions were performed were legitimate; state power to prohibit abortions during the third trimester (except those necessary for the woman's life or health), when the fetus had reached “viability” and could live outside the womb. Blackmun read the constitutional reference to “person” as applying postnatally and declined to be drawn into a theological argument about whether personhood began before birth.

Justices Byron White and William Rehnquist, dissenting, questioned the Court's favoring “the convenience of the pregnant mother” over the fetus. In fact, the person Blackmun focused on was the physician, not the pregnant woman. In United States v. Vuitch (1971), involving a statute prohibiting physicians from performing any abortion not necessary to save the woman's life, the Court had found no constitutional right to abortion. Justice William O. Douglas criticized the relevant statute as overly vague, giving neither the physician nor a possible jury guidelines for deciding whether an abortion was necessary. During oral argument in Roe, Blackmun followed Douglas's Vuitch approach and emphasized the physician's rights. The justices' conference reportedly centered on that issue, and Blackmun, after two weeks' intensive research in the Mayo Clinic library, wrote a decision that, while it ensured women's access to abortion, was couched largely in language protective of the physician's right to exercise professional judgment. In subsequent cases, however, Blackmun's opinions centered on a woman's right to reproductive privacy rather than physicians' professionalism.

In the years following Roe, Blackmun wrote the opinion of the Court or concurred whenever the Court extended the right to abortion by striking down, for example, spousal or parental consent requirements and waiting periods; he dissented from decisions limiting the right (Planned Parenthood v. Danforth, 1976; Bellotti v. Baird, 1979; H. L. v. Metheson, 1981; Akron v. Akron Center for Reproductive Health, 1983; and Planned Parenthood v. Ashcroft, 1983). When the Court legitimized bans on government funding of abortions in Beal v. Doe (1977); Maher v. Roe (1977); and Harris v. McRae (1980), Blackmun dissented, going beyond his earlier medical concerns to condemn the hardships wrought on indigent women thereby deprived of their rights. In Rust v. Sullivan (1991), a First Amendment case with major implications for abortion rights, he dissented from the Court's finding of no constitutional violation in the federal government's making health care facilities' receipt of federal funds for family planning contingent on their avoiding any mention of abortion.

In Webster v. Reproductive Health Services (1989), the Court upheld Missouri's prohibition on the performance of abortions by public employees or in public facilities unless the procedures were to save the life of the woman. The Court also legitimated its requirement that women seeking an abortion be counseled about alternatives, declaring that “the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms.” Blackmun accused the majority of “turn[ing] a stone face” to the right of reproductive freedom. “I fear for the future,” he lamented. “I fear for the liberty and equality of …. millions of women.” The majority had not overturned Roe, but “the signs are evident and very ominous, and a chill wind blows.” It blew even colder in Planned Parenthood v. Casey (1992). There, although a three-justice plurality reiterated the right enunciated in Roe, it also permitted limitations such as consent and “information” requirements to be imposed on that right. In place of the Roe trimester formula, the Casey Court created a state power to regulate abortions at any stage of pregnancy, as long as the regulations did not place an “undue burden” upon the right. A separate four-justice bloc would have overturned Roe. That left only the plurality and two others justices, including Blackmun, adhering to the shreds of Roe. “The distance is but a single vote,” Blackmun warned in dissent. “I am 83 years old. I cannot remain on this Court forever.”

After Roe, Blackmun evinced increasing concern both for “the right to be let alone” and women's rights. As the right to bodily privacy began to influence lower court decisions in, for example, In re Quinlan (1976) and Superintendent of Belchertown State School v. Saikewicz (1977), Blackmun attempted to extend it. Dissenting from the Court's endorsement of a Georgia sodomy statute and its implicit condemnation of homosexuality, Blackmun argued, “In a Nation as diverse as ours …. there may be many ‘right’ ways of conducting …. relationships” (Bowers v. Hardwick, 1986). He came to view Roe as a women's rights case, telling a colloquium that he believed the abortion decisions “broke some of the statutorily imposed fetters on women's freedom traceable in our country to Victorian times.” He wrote decisions striking down a state law ending parental obligation for support payments sooner for female than for male children (Stanton v. Stanton, 1975) and a federal statute providing Aid to Families with Dependent Children only when the mother rather than the father was unemployed (Califano v. Westcott, 1979). Each justice is allotted four clerks per year, and it was telling that in 1985 Blackmun became the first justice ever to hire three women clerks. By the time he retired, he had hired more female clerks than any other justice in the history of the Court.

His dissent in Ford Motor Co. v. Equal Employment Opportunity Commission (1982) reflected his disquiet at society's treatment of women, particularly poor women. The EEOC had sued Ford under Title VII of the 1964 Civil Rights Act for refusing to hire specific women at one of its warehouses that had never employed any woman, and the trial court had awarded the women back pay. Justice Sandra Day O'Connor wrote for the Court, however, that because Ford had offered to hire the women when the suit was filed and they had turned down the jobs, Ford's back pay liability had halted. Blackmun, dissenting, drew from the “real-life concerns of the parties.” Rejected by Ford, the women had gone to work for General Motors and had accumulated seniority by the time Ford offered them jobs without it. Had they moved to Ford, Blackmun noted, they would have received fewer benefits: “lower wages, less eligibility for promotion and transfer, and greater vulnerability to layoffs than persons hired after they were unlawfully refused employment.” He quoted from one employee's trial testimony: “I was just wanting that job so bad because you can't, a woman, when you've got three children, I needed the money, and I was wanting the job so bad. I worked so hard.… It broke my heart because I knew I had worked so hard.” That, said Blackmun, showed how much job security meant and how irrationally the Court had decided.

Blackmun gradually emerged as protective of the rights of those he considered disadvantaged, not only women, but racial minorities, consumers, aliens, and the elderly. He described the Court as “the resort of …. ‘discrete and insular minorit[ies]’” and argued that justice required viewing the world from the perspectives of different people. Recognizing both the country's race problem and the potential role of law in alleviating it, his concurrence in Regents of the University of California v. Bakke (1978) argued that affirmative action programs were necessary: “In order to get beyond racism, we must first take account of race.” He wrote for the Court in cases validating school desegregation efforts (Columbus v. Penick, 1979; Dayton v. Brinkman, 1979; and Washington v. Seattle School Dist. No. 1, 1982). As the Court chipped away at affirmative action in the late 1980s, he accused it of “regressing” (City of Richmond v. J. A. Croson, 1989) and wondered “whether the majority still believes that discrimination …. is a problem in our society, or even remembers that it ever was” (Ward's Cove v. Atonio, 1989). Bringing his training as a mathematician to the issue of race, he appended a footnote to Castaneda v. Partida (1977) that established the now-accepted statistical method for proving race discrimination. He wrote an opinion validating statutory employment preferences for Native Americans in the Bureau of Indian Affairs (Morton v. Mancari, 1974), and, when he dissented from the Court's decision in an Indian land claims case, he spoke of Native Americans as “a people whom our Nation long ago reduced to a state of dependency” (South Carolina v. Catawba Indian Tribe, 1980). Dissenting again when the Court held that Native Americans could be prosecuted for using peyote in religious ceremonies, he lamented the country's “unfulfilled and hollow promise” of religious liberty for Native Americans (Employment Division, Department of Human Resources of Oregon v. Smith, 1990).

Blackmun played a central role in bringing aliens under the protection of the Fourteenth Amendment. Writing for the Court that states could not condition welfare payments to aliens on a durational residency requirement, he declared that classifications based on alienage are suspect and subject to strict scrutiny (Graham v. Richardson, 1971). Aliens needed the protection accorded to a “discrete and insular minority” because communities could exclude them from the political process. States therefore could not prohibit aliens from employment in the civil service (Sugarman v. Dougall, 1973) or the public schools (Ambach v. Norwick, 1979), although they could be barred from the state police (Foley v. Connelie, 1978). Although he agreed with the Court in San Antonio Independent School District v. Rodriguez (1973) that there was no federal constitutional right to education, Blackmun argued ten years later that it was such a basic right that a state could not exclude the children of illegal aliens from public schools (Plyler v. Doe, 1982). He dissented when the Court upheld an Immigration and Naturalization Service decision denying asylum to a Guatemalan whom a guerrilla organization had attempted to coerce into joining its army (INS v. Elias-Zacarias, 1992); when it decided that the government could kidnap a Mexican citizen and bring him to the United States for trial (United States v. Alvarez-Machain, 1992); and when it decreed that the INS could detain children, pending deportation proceedings, even when an unrelated adult was willing to house them (Reno v. Flores, 1993). Eight justices held in 1993 that in spite of both international and domestic law, the United States could intercept Haitian refugees at sea and return them to Haiti (Sale v. Haitian Centers Council). In an impassioned dissent, Blackmun lambasted the “land of refugees and guardian of freedom” for “forcibly driving” the refugees “back to detention, abuse and death” and castigated the Court for “strain[ing] to sanction that conduct.”

He remained deferential to criminal justice officials, voting to limit the “judicially created exclusionary rule,” as he put it in United States v. Janis (1976). In 1971 he dissented in Bivens v. Six Unknown Fed. Narcotics Agents, seeing no cause of action for a plaintiff whose home had been entered illegally by federal agents and who had been subjected to unreasonable force and a strip search, and he found no due process requirement of juries in juvenile delinquency proceedings (McKeiver v. Pennsylvania). He dissented when the Court upheld use of evidence gathered by a warrantless overflight of a suspect's home by a police helicopter, but did so on the limited ground that the frequency of police overflights for nonsearch purposes and therefore the extent to which a reasonable expectation of privacy against such flights existed had not been established (Florida v. Riley, 1989).

His pragmatic, case-by-case approach emphasized facts and led to his relatively rare disagreements with criminal justice verdicts. Dissenting from the punishing of an escaped prisoner who presented evidence of continued brutality by guards, Blackmun declared that the prisoner had fled to “extricate” himself from “hell” and emphasized the “beatings, fires, lack of essential medical care, and sexual attacks” suffered by prisoners (United States v. Bailey, 1980). He was unenthusiastic about overturning convictions on procedural grounds, urging instead that greater use be made of Section 1983 of Title 42 of the United States Code, which criminalizes deprivation of civil rights. Disagreeing with the decision in Rizzo v. Goode (1976), that denied injunctive relief for Philadelphia citizens alleging police brutality, for example, Blackmun argued that the police behavior constituted a pervasive pattern of such deprivation under Section 1983. He also advocated use of Section 1983 to challenge illegal searches (Allen v. McCurry, 1980), to act against ineffective public defenders (Polk v. Dodson, 1981), and to punish police officers who committed perjury (Briscoe v. LaHue, 1983).

His factual approach resulted in the gradual alteration of his view of the death penalty's constitutionality. Statistical evidence persuaded him to vote against Georgia's capital sentencing process as racially discriminatory (McCleskey v. Kemp, 1987). Although he agreed that a mentally retarded person found competent to stand trial could be executed (Penry v. Lynaugh, 1989), he dissented from the Court's holding that subjecting minors to execution did not constitute cruel and unusual punishment (Stanford v. Kentucky, 1989). (In Roper v. Simmons, decided in 2005, ten years after Blackmun left the bench, the Court in effect announced that he had been correct.) Eventually, he concluded that the death penalty as applied on the basis of Furman v. Georgia (1972) violated the Eighth Amendment, because twenty years' experience had demonstrated that attempts made after Furman to satisfy the “constitutional goal of eliminating arbitrariness and discrimination” in sentencing a convicted criminal to death “can never be achieved without compromising an equally essential component of fundamental fairness—individualized sentencing” (Callins v. Collins, 1994). In a lone and emotional dissent from a denial of certiorari in Callins, sought by a defendant sentenced to death, Blackmun added that capital punishment was used disproportionately in cases involving members of racial minorities, thereby violating the equal protection clause as well, and he declared, “From this day forward, I no longer shall tinker with the machinery of death.” Blackmun kept that promise. He drafted a phrase, “Adhering to my view that the death penalty cannot be imposed fairly within the constraints of the Constitution,” and directed the clerk of the Court to attach it as his dissent to every subsequent death penalty decision.

In 1987 the American Society of Law, Medicine, and Ethics gave Blackmun its first Presidents' Award for Outstanding Contributions to Law and Medicine, mentioning, among other cases, Barefoot v. Estelle (1983). There, explaining that the American Psychiatric Association had declared that subsequent dangerousness was not predictable, he voted against the imposition of capital punishment on the basis of a prediction of future dangerousness by psychiatrists who had not even examined the defendant. With Blackmun goading it, the Court eventually began to overturn the careless use of psychiatry in capital trials (Ake v. Oklahoma, 1985; Ford v. Wainwright, 1986). Blackmun also argued unsuccessfully that the equal protection clause mandated heightened scrutiny in examining state action that discriminated against the mentally retarded (Cleburne v. Cleburne, 1985). He held that someone declared incompetent to stand trial could be placed only in a facility that offered appropriate treatment or training (Jackson v. Indiana, 1972). He dissented when the Court later backed away from this standard; see, for example, Jones v. United States (1983).

Although he placed a high value on speech, Blackmun considered it as subject to a balancing test as any other part of the Constitution. He dissented in New York Times Co. v. United States (1971) because the right of the press had not been weighed against possible national security interests. He voted against giving First Amendment protection both to what he labeled the “absurd and immature antic” of a young protester who walked into a courtroom wearing a jacket sporting the words “Fuck the Draft” (Cohen v. California, 1971) and to another young man who “harm[ed] the physical integrity of the flag by wearing it affixed to the seat of his pants” (Smith v. Goguen, 1974). Although he concurred with the Court in remanding for trial the allegations of students that a school board's decision to remove from their libraries books it labeled “anti-American, anti-Christian, anti-Semitic, and just plain filthy” violated their First Amendment rights, Blackmun emphasized that the case involved “two competing principles of constitutional stature,” one being speech and the other, the “properly inculcative purpose” of public education to “‘promote civic virtues’” (Island Trees v. Pico, 1982). Students had no absolute right to receive ideas, but “certain forms of state discrimination between ideas are improper,” and state discrimination against ideas because of their political content was particularly impermissible. For that reason, he joined the Court in striking down a flag desecration statute in Texas v. Johnson (1989). He dissented on First Amendment grounds when the Court said a public indecency statute could be applied to nude dancing in a commercial establishment, because the state had not proved a sufficient interest to balance the right of expression (Barnes v. Glen Theatre, 1991). He disagreed with the Court's approach in the “hate speech” case of R. A. V. v. St. Paul (1992) but concurred in overturning the statute as overly broad.

Blackmun made a major contribution to the law of commercial speech by treating it as subject to the same balancing test. His first commercial speech opinion for the Court involved abortions, overturning the convictions of a Virginia newspaper's director and managing editor, who published a New York City organization's advertisements for low-cost abortions in accredited facilities (Bigelow v. Virginia, 1975). The Court had held in Valentine v. Chrestensen (1942) that the First Amendment did not apply to commercial speech. In the incremental manner most likely to secure agreement among the justices, Blackmun narrowed the holding in Chrestensen instead of overruling it, saying that the state limitations on the distribution of handbills at issue in Chrestensen were a “reasonable regulation.” But the reasonableness of regulation of commercial speech depended upon the nature of the speech involved, Blackmun continued, suggesting that the Court adopt a test balancing the right of the speaker against that of the state. As there was nothing fraudulent about the speech in Bigelow, it was unreasonable for the state to punish it.

The following year, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council(1976), Blackmun wrote for the Court when it overturned a statute prohibiting pharmacists from advertising the prices of prescription drugs. In finding for the consumers who had brought the case, the district court had adopted Blackmun's suggested balancing test and declared that the First Amendment interest in free flow of price information outweighed any asserted state interest in maintaining pharmacists' professionalism by banning advertisements. Blackmun's opinion in Virginia State Bd. of Pharmacy illuminated both his evolving attitude toward the role of speech in a democratic society and his awareness of those less favored by it. Calling advertising the “dissemination of information,” he asserted that such information was necessary to enlightened public decision making. The area of democratic decision making was up to the individual: “the particular consumer's interest in the free flow of commercial information …. may be as keen, if not keener by far, than his interest in the day's most urgent political debate.” Financial decisions also might be linked to political choices: “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.” The only interest of the state was the limited one of maintaining professionalism; anything else was “highly paternalistic.” Blackmun, unlike the state, assumed “that this information is not in itself harmful, that people will perceive their own best interests only if they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Describing the elderly as the group least physically fit to comparison shop and equally likely to have “diminished resources,” Blackmun added: “Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged.… [T]hey are the least able to learn …. where their scarce dollars are best spent.… [I]nformation as to who is charging what …. could mean the alleviation of physical pain or the enjoyment of basic necessities.”

Striking down a ban on advertising by lawyers in Bates v. State Bar of Arizona (1977), Blackmun again questioned the state's view of the public as “not sophisticated enough to realize the limitations of advertising.” “We view as dubious any justification that is based on the benefits of public ignorance,” he wrote, adding that the ban “likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.” There was, however, a difference between commercial and noncommercial speech. Blackmun recognized the validity of state regulation aimed at speech that did not “serv[e] individual and societal interests in assuring informed and reliable decision making.” Specifically, this meant the state could ban commercial speech that was basically false, deceptive, or misleading; proposed illegal activities; established time, place, and manner limitations; or depended upon coercive in-person solicitation.

Three years later, in Central Hudson v. Public Service Commission (1980), the Court edged away from its protection of commercial speech by holding that it was entitled to no more than an intermediate level of constitutional protection and developing a four-part test by which to judge the legitimacy of government regulation. Blackmun concurred only because the Court overturned the restriction on the speech at issue. He applauded when the Court refused to allow Cincinnati to ban freestanding news racks that held “commercial handbills” while permitting such news racks for newspapers (City of Cincinnati v. Discovery Network, 1993). The Court held that the differentiation between newspapers and commercial speech was neither neutral nor a reasonable way to reach Cincinnati's stated goals of reducing litter and street obstructions and that it “seriously underestimate[d] the value of commercial speech,” suggesting that Cincinnati had misread earlier Court decisions. Blackmun, concerned about the listener rather than the speaker, added that the commercial speech here was listings of homes for sale and of adult education courses, which was information of major value to individuals.

In another First Amendment area, Blackmun's position on church and state reflected an adherence to “Madison's view that both religion and government function best if each remains independent.” School districts should not lend instructional materials and equipment to private schools because of the difficulty of distinguishing the sectarian and secular functions (Wolman v. Walter, 1977). He dissented in Committee for Public Education v. Regan (1980), saying that parochial schools should not be reimbursed for state-mandated testing and reporting services that are “an essential part of the sectarian schools' activities.” In a somewhat confusing sequence of cases, he criticized the Court's decision to treat Christmas symbols as neutral holiday decorations as a denial of the symbols' religious meaning (Lynch v. Donnelly, 1984) but argued that although a crche on public property was unconstitutional a menorah combined with a Christmas tree and a sign saluting liberty was not (Allegheny County v. ACLU, 1989). He considered the Court wrong to endorse the Air Force's refusal to allow an Orthodox Jew to wear a yarmulke on duty (Goldman v. Weinberger, 1986). In 1987 he expressed concern that the wall between church and state “has been crumbling a little of late …. particularly at the Supreme Court level.” He repeated his concern when the Court validated a state's hiring a translator for a deaf student in a parochial school, both because the Court could have decided the case on statutory rather than constitutional grounds and because the translator was propagating religious doctrine (Zobrest v. Catalina Foothills School District, 1993).

Blackmun described his approach to judging when he told a law school audience in 1988, “The Court moves first in one direction and then it shifts to another as it probes new facts, new legislation, and new theories and the issues that emerge from them.” His own change of position enabled the Court to shift precisely in that manner in cases concerning federalism.

In 1968, before Blackmun joined the Court, the justices handed down a decision consistent with the post-1936 practice of upholding federal regulatory statutes based on congressional power over interstate commerce (Maryland v. Wirtz). It permitted the federal government to extend the Fair Labor Standards Act (FLSA) to public hospitals, nursing homes, and educational institutions and, by doing so, to impose federal maximum hour and overtime pay standards on those institutions. In 1976, however, with Blackmun in the majority, a 5–4 Court reversed Wirtz in National League of Cities v. Usery.

Amendments to the FLSA had extended federal wage and hour regulations to almost all employees of state and local governments. In striking them down, Justice Rehnquist said that Congress could not tell the states how to make “essential decisions” about “integral governmental functions.” “Integral” was not defined but was described as including functions “essential to [the] separate and independent existence of the states” and “within the area of traditional operations of state and local governments.” Blackmun's unhappy concurrence reflected his fear that the decision might have a negative impact on environmental protection, traditionally within the less-than-zealous jurisdiction of the states. Focusing on “balancing,” however, he concluded that the Usery doctrine struck the appropriate balance between federal regulatory power and state autonomy.

In 1982 Blackmun joined and wrote for the four Usery dissenters in upholding a part of President Jimmy Carter's energy program that limited the autonomy of state utility regulatory commissions. In Federal Energy Regulatory Commission v. Mississippi, Blackmun asserted that the federal government was merely utilizing its commerce clause power to preempt conflicting state regulations when in fact it could have preempted the entire field of energy policy. Justice O'Connor, in a dissent Blackmun called “rather loud,” attacked the result as inconsistent with Usery, “antithetical to the values of federalism, and inconsistent with our constitutional history.” Blackmun, unmoved, voted again with the Usery dissenters in a case extending the congressional commerce power to regulation of the mandatory retirement ages of state employees, a step designed to avoid discrimination against the elderly (Equal Employment Opportunity Commission v. Wyoming, 1983). Finally, in Garcia v. San Antonio Transit Authority (1985), the Court effectively overruled Usery, with Blackmun writing for the five-justice majority.

Garcia involved federal power to set guidelines under the FLSA for overtime wages paid by a metropolitan transit authority. Explaining his vote, Blackmun said, “In the years that intervened between the two cases …. I had become convinced that the ‘traditional governmental function’ test was unworkable. A little reflection demonstrated that mass transportation was not such a function. Indeed, nearly all transportation systems originally were privately owned.” “We find it difficult, if not impossible,” he wrote in Garcia, “to identify an organizing principle that places each of the cases in the first group on one side of a line and each of the cases in the second group on the other side.” Lower courts attempting “to draw guidance from this model [Usery] have proved it both impracticable and doctrinally barren,” issuing contradictory holdings. What was shown by Usery and Garcia, Blackmun later commented, was “how the Court veers from one side to the other or, if one will, takes two steps ahead and one back or one step ahead and two back, depending on the point of view. If the issues were to arise again today, even with facts identical to those of Garcia, would the result be the same with the Court as presently constituted?” In other words, the Constitution was not a static entity, the justices were fallible people limited by their own viewpoints but trying to learn from experience and societal needs, and the Court's doctrines inevitably would change again. He announced himself “mildly surprised,” and presumably pleased, when Garcia was explicitly reaffirmed in South Carolina v. Baker (1988).

Blackmun commented on the “constant development of the concepts of Justice” and the continual learning process undergone by the justices. And he said:

The Court is a very special place from which to observe, for one has a view there of what is happening in the courtrooms of America. One sees what people are litigating about.… One gets a sense of their desires and of their frustrations, of their hopes and of their great disappointments, of their profound personal concerns, and of what they regard as important and as crucial.

This view of the “real world” affected Blackmun's evolution as a justice. He told interviewers that his ideas did not change after he became a justice, but if his fervor for individual rights as against government institutions was as great when he joined the Court as in later years, that was not apparent either in the way he voted or in his language. In United States v. Kras (1973), upholding the constitutionality of bankruptcy filing fees for indigents, he commented that the filing fee—for someone without resources—was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” It is difficult not to see the difference between that language and the empathy he displayed in Ford v. EEOC or Webster as reflecting the view from the Court's special window on society. His own description of the alteration of his thinking between Usery and Garcia suggests the openness to the “real world”—whether of social realities or the gradually unfolding impact of Supreme Court doctrine on lower court decisions—that he urged upon his colleagues and that logically would result in growth and change in any justice's ideas, because the real world is not static.

A justice who is doctrinaire is unlikely to find cases difficult to resolve. Blackmun, however, did. “I probably agonize over cases more than I should,” he reflected during his last year on the Court. He also referred to the justices as being “locked in combat” over the outcome of cases, “struggling for the fifth vote.” Whether it was the need to secure a majority that was responsible for the difference between Roe, with its emphasis on physicians' rights, and Webster, with its understanding of the difficult decisions faced by an unhappily pregnant woman, is unclear. The decisive factor could as easily have been the concern that Blackmun later articulated about maintaining a strong center as the Court's membership changed, or what he referred to as the “educational process” that takes place on the Court. Whatever the reason, the difference expressed in his opinions during his first years on the Court and in those that followed was notable.

Blackmun arrived at the Court as a man with great faith in institutions and a tendency to defer to them. His years on the nation's highest bench, and the annual seminars he ran at the Aspen Institute in Colorado during the Court's summer breaks, exposed him to people, problems, and ways of thinking that were far removed from those he had encountered earlier in life. He read every piece of mail the public sent to his desk, whether laudatory or abusive, and became less isolated from the pulse of the country than he had been in his pre-Court years. Sometimes, he realized, the government did its job of protecting individuals. When it did not, however, when the individuals involved were outsiders with very little power, then it was the function of the Court to step in.

The one thing that did not change during Blackmun's Court years was the need to maintain integrity. “I hope you will always be yourself,” he told the Mayo Medical School's 1980 graduating class, defining “yourself” as “human, a little sentimental, possessed of a sense of humor and a sense of humility, not possessed of a pride of authorship or accomplishment.” The lack of pride was important. Blackmun may have been thinking of Roe when he added, “The Bench …. is no place to grow rich, and it certainly is no place to become popular.”

Bibliography

Blackmun's voluminous papers, housed in the Library of Congress, were opened to researchers in March 2004. Linda Greenhouse's Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey (2005) is based on the papers and focuses primarily on his relationship with Chief Justice Warren Burger and his opinions in the areas of privacy, federalism, the death penalty, and speech. A comprehensive examination of Blackmun's approach to judging and areas of the law such as capital punishment, speech, taxation, federalism, personal autonomy, and race can be found in the articles that constitute Hastings Constitutional Law Quarterly 26 (1998). A number of his former clerks have analyzed his jurisprudence, both in the Hastings compilation and in Pamela S. Karlan, “Jurisprudence: Bringing Compassion into the Province of Judging,” North Dakota Law Review 71 (1995): 173; Harold H. Koh, “Rebalancing the Medical Triad: Justice Blackmun's Contributions to Law and Medicine,” American Journal of Law & Medicine 13 (1987): 315; and “Justice Blackmun and the ‘World Out There,’” Yale Law Journal 104 (1994): 12; Karen N. Moore, “Justice Blackmun's Contributions on the Court: The Commercial Speech and State Taxation Examples,” Hamline Law Review 8 (1985): 29; and Diane P. Wood, “Justice Blackmun and Individual Rights,” Dickinson Law Review 97 (1993): 421. Stephen L. Wasby, “Justice Blackmun and Criminal Justice: A Modest Overview,” Akron Law Review 28 (1995): 125, is a good summary of Blackmun's opinions in that field. Philippa Strum, “Change and Continuity on the Supreme Court: Conversations with Justice Harry A. Blackmun,” University of Richmond Law Review 34 (2000): 285, draws on interviews with the justice during his last year on the Court.

Blackmun's own words about the Court, the problems facing society, and specific areas of the law appear in a number of law review articles. The most significant of them is “Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away?” New York University Law Review 60 (1985): 1. Among the others are “The First Amendment and Its Religion Clauses,” Nova Law Review 14 (1989): 29; “Thoughts About Ethics,” Emory Law Journal 24 (1974): 3; “Some Goals for Legal Education,” Ohio Northern Law Review 1 (1974): 403; “Movement and Countermovement,” Drake Law Review 38 (1989): 747; “The Supreme Court and the Law of Nations,” Yale Law Journal 104 (1994): 39; and “Reflections of Justice Blackmun,” Bench & Bar of Minnesota 58 (2001): 34.

Noteworthy Opinions

Graham v. Richardson, 403 U.S. 365 (1971)

New York Times Co. v. United States, 403 U.S. 713 (1971) (Dissent)

Bigelow v. Virginia, 421 U.S. 809 (1975)

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

Califano v. Westcott, 443 U.S. 76 (1979)

Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219 (1982) (Dissent)

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)

Bowers v. Hardwick, 478 U.S. 186 (1986) (Dissent)

Stanford v. Kentucky, 492 U.S. 361 (1989) (Dissent)

Webster v. Reproductive Health Services,492 U.S. 490 (1989) (Dissent)

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (Dissent)

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (Dissent)

Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (Dissent)

Callins v. Collins, 510 U.S. 1141 (1994) (Dissent)

 

Document Citation
Blackmun, Harry Andrew, in Biographical Encyclopedia of the Supreme Court 23 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18975-1014126.
Document ID: bioenc-427-18975-1014126
Document URL: http://library.cqpress.com/scc/bioenc-427-18975-1014126