Retired Justice Blackmun Dies at Age 90
Washington Post Staff Writer
Thursday, March 4, 1999
Special for the Web Edition: Retired Justice Harry A. Blackmun, the author of Roe v. Wade, the decision that made abortion legal, radically transformed American society and changed politics forever, died Thursday at age 90 of complications following hip replacement surgery.
An enigmatic figure who could be both reserved and puckish, and who loaded his writing with emotion, Blackmun sat on the high court from 1970 until 1994 and penned hundreds of opinions. During that unusually long tenure he influenced all walks of life, but particularly enhanced women's rights, enlarged constitutional protection for commercial speech and championed a high wall of separation between church and state.
Raised in Minnesota and educated at Harvard, Blackmun was appointed to an appeals court and the Supreme Court by Republican presidents. But when the small man with a full head of gray hair retired, he was the most liberal member of the bench. His ideological odyssey intrigued political Washington, but it was also a measure of the court's transformation from the expansive post-Earl Warren era of the 1970s to the conservatism of the 1990s.
But more than anything, Blackmun was identified with the 1973 decision that found an implicit right of privacy in the Constitution broad enough to encompass a woman's choice to end a pregnancy.
The 7-to-2 ruling ignited the culture wars that have come to dominate American politics. It stands as the single most important decision in the mobilization of the religious right, the linchpin of the women's rights movement and the sexual revolution and a crucial development for the Republican party, which in the 1970s began drawing on Catholic, working-class Democratic voters.
Blackmun, who had been on the bench just three years when he crafted Roe, conceded it was difficult to write, not least because of the seemingly absolute convictions that the abortion controversy continued to inspire. But he would observe upon his retirement five years ago, "It's a step that had to be taken ... toward the full emancipation of women."
That ruling inspired plenty of animus over the years, too, and Blackmun often recounted the hate mail he received. He was called a "low-down scum," and a "murderer."
For all the passion he penned and inspired in some opinions, the slight, unassuming Blackmun was somewhat detached. He was seen as a loner, rather than a leader. Fellow Minnesotan Garrison Keillor called him "the shy person's justice." On big days of oral arguments, as people lined up outside the white marble court building, Blackmun was occasionally spotted standing alone at the top of the steps, lost in thought.
He would sometimes joshingly call himself "Ol' No. 3" because he was nominated by Richard Nixon after the president's failed attempts to name Clement F. Haynsworth Jr. of South Carolina and G. Harrold Carswell of Florida. Blackmun, then an appeals court judge on the 8th Circuit and an old friend of then-Chief Justice Warren E. Burger, was confirmed without opposition.
The thought, "What am I doing here?" always crossed his mind, he said, as he was filled with humility at the task.
He changed a good deal during his 24 years on the court. He and the generally conservative Burger were allied at first and dubbed the "Minnesota Twins." But Blackmun slowly and surely broke ranks and by the time he retired in 1994, he was the court's most liberal member.
Blackmun himself bristled at all the commentary about his ideological shift and contended it was not he who changed. He said he adhered to the proposition that he was the same: "The court changed."
Blackmun found his voice as he wrote about the plight of victims and underrepresented in society. When the court ruled that the mother of a 4-year-old boy, Joshua DeShaney, whose father savagely beat him, could not sue a county welfare department for failing to protect the boy, Blackmun penned a dissent famous for its unshielded emotion.
"Poor Joshua!" he said in the 1989 case. "Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by [the social services workers] who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing... It is a sad commentary upon American life."
Reacting to the growing conservatism of a court and rulings that made it harder for workers to sue for bias, Blackmun wrote, "One wonders whether the majority still believes that race discrimination – or, more accurately, race discrimination against non-whites – is a problem in our society, or even remembers that it ever was."
Two months before he announced his retirement in April 1994, Blackmun, who consistently voted to uphold death sentences, said he had come to believe that the capital punishment system was fraught with discrimination and mistakes. "From this day forward," he said, "I no longer shall tinker with the machinery of death."
He asked questions about "the real people" who would be affected by a ruling, the "little people," he said, who had no angels. But he could be gruff and a stern taskmaster to his law clerks and himself, spending long hours hunched over stacks of books in the court library.
And his sentimental approach was criticized by legal scholars who said he was too emotional and that he failed to follow precedent or offer guiding principles for future cases.
After his retirement in 1994, he continued to come daily to the court and keep up his tradition of heading down to breakfast in the cafeteria with his clerks. On Feb. 22 he fell at his home and the next day underwent hip replacement surgery. He never fully recovered. But true to his work ethic, he considered having some of his mail delivered to the hospital so he could keep up with correspondence.
A Supreme Court statement said Blackmun died at 1 a.m. in Arlington Hospital in Arlington, Va. He was survived by his wife, Dorothy, and their three daughters.
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