Justice Blackmun Dies, Leaves Legacy of Rights
Washington Post Staff Writer
Friday, March 5, 1999; Page A1
Retired Justice Harry A. Blackmun, author of the historic Roe v. Wade decision that made abortion legal and radically transformed American society and politics, died yesterday at the age of 90.
An enigmatic figure who could be both reserved and puckish, and who loaded his writing with an unusual degree of emotion, Blackmun sat on the high court nearly a quarter century and penned hundreds of opinions before his retirement in 1994. During that unusually long tenure, he influenced many facets of life but particularly enhanced women's rights, enlarged the 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 both to an appeals court and to the Supreme Court by Republican presidents. But by the time he retired, he was the most liberal member of the bench. His ideological odyssey intrigued political Washington but was also a measure of the court's transformation from the progressive post-Earl Warren era of the '70s to the conservatism of the '90s.
More than anything, Blackmun was identified with the benchmark 1973 decision that found an implicit right of privacy in the Constitution broad enough to emcompass a woman's right 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 sexual revolution and a crucial development for the Republican party, which in the 1970s began drawing Catholic, working-class Democratic voters.
Blackmun, who had been on the bench just three years when he crafted Roe v. Wade, conceded it was a difficult decision to write, not the least because of the seemingly absolute convictions that the abortion controversy inspires. But he would observe upon his retirement, "It's a step that had to be taken . . . toward the full emancipation of women."
"Every decision and every dissent was firmly grounded in the Constitution he revered and his uncanny feel for the human element that lies just beneath the surface of all serious legal argument," President Clinton said of Blackmun yesterday.
For all the passion he penned and inspired, the slight, unassuming man was somewhat detached. Fellow Minnesotan Garrison Keillor called him "the shy person's justice." On days when significant cases would draw large crowds to the white marble court building, Blackmun could occasionally be spotted standing alone at the top of the steps.
He would sometimes joshingly call himself "Ol' No. 3" because he was nominated by Richard M. Nixon after that 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 chum of then-Chief Justice Warren E. Burger, was confirmed without opposition.
The thought, "What am I doing here," often crossed his mind, Blackmun once said, a comment that reflected the humility he brought to the job. "He did not come from an elite background," said Beth R. Heifetz, a former law clerk who became a personal friend. "He worked his way through Harvard by delivering milk and doing other odd jobs. And he never moved far away from the boy from Minnesota."
In terms of his legal approach, however, Blackmun 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 slowly, Blackmun broke ranks.
He bristled at all the talk about his ideological shift and contended it was not he who changed: "The court changed." And indeed it did.
When he joined the bench in 1970, it was still entrenched in the legacy of Chief Justice Earl Warren (1953-69), broadly interpreting individual rights, shielding criminal defendants, supporting the underdog. With liberal bulwarks such as William J. Brennan, William O. Douglas and Thurgood Marshall, Blackmun easily slipped into a role on the right. But over time his ideology evolved and the court eventually was transformed by eight subsequent appointments by Republican presidents.
Blackmun found his voice at its most poignant when he wrote about society's victims. 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 him, Blackmun wrote 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."
He was most ardent commenting on personal liberties. When the Supreme Court in 1986 said the Constitution's right to privacy does not protect private consensual homosexual conduct between two adults, Blackmun wrote of "the right to be let alone."
In his dissent, he said the fact that: "individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a nation as diverse as ours, that there may be many 'right' ways of conducting those relationships. ... "
Two months before he announced his retirement in April 1994, Blackmun, who had 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 worried about the "little people," he said, who had no angels on their shoulders. Rather than consider the litigants who came to the court in the abstract, he was attuned to people as individuals. But he could be 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.
He and his opinions could elicit equally impassioned reactions from people. He received tens of thousands of letters over the years on the abortion ruling, plenty of it hate mail, including from people who called him "nothing but a low-down scum," "a murderer."
After his retirement, he continued to come daily to the court and keep up his tradition of having 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 and a statement from the court said his death was the result of complications following the surgery.
The Abortion Decision
Never has one justice been so exclusively tied to a single ruling. That's because Roe v. Wade wasn't just Blackmun's biggest opinion during his near-quarter century. It was the court's. Like the 1954 Brown v. Board of Education, the decision led to seismic social changes. Before Roe legalized abortion nationwide on Jan. 22, 1973, hundreds of thousands of women had to break the law to end a pregnancy, and there was, of course, no movement to protect the unborn.
Writing the opinion was "both difficult and elusive," Blackmun told his colleagues as he circulated his final drafts in January 1973. He relied on the medical knowledge he gained at the Mayo Clinic, where he had been a resident counsel (1950-59) and included a long analysis of the state of obstetrics in America.
He opened the opinion recognizing divisions in society: One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."
As a constitutional matter, there was no specific wording in the Bill of Rights or any prior court decision that he could specifically rely on. His rationale rested chiefly on the Fourteenth Amendment's concept of personal liberty. He said that was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Blackmun also drew strength from the fact that the court or individual justices had found the roots of a general right to privacy in other contexts. It could be discovered in the First Amendment's right of association, the Fourth Amendment's protection against unreasonable searches and seizures and the Fifth Amendment's guarantee against self-incrimination.
Then he got down to the practicalities of abortion regulation. Blackmun said states had an interest "in safeguarding health, in maintaining medical standards, and in protecting potential life." He established a trimester scheme for when states could get involved in an abortion decision, tied to the progression of a pregnancy.
In the first trimester, he wrote, the state had no sufficiently compelling interest that would allow it to interfere with a woman's abortion choice. In the second trimester, however, the state's interest was such that it could enforce regulations geared toward the health of the mother and medical safety, requiring, for example, that abortions be performed at a hospital.
In the critical third trimester, when a fetus is presumed to be able to live on its own, state's interest can be sufficiently compelling to forbid abortion, he wrote, except when necessary to protect the life of the mother.
Blackmun had prepared himself for the institutional consequence of the ruling, but he hadn't quite calculated what it would mean for him personally.
Yesterday, one of his clerks that term, Randall P. Bezanson, now a professor at the University of Iowa, said soon after the ruling, he and the justice were traveling to Iowa, where Blackmun was scheduled to give a speech. "As we drove from the hotel to the conference center," Bezanson recalled, "there were a few people with pickets, protesting Roe, and he realized for the first time that a political protest could be directed at him. That was the first time he understood the consequences in personal terms." After that, the hate mail came in sacks.
Almost 20 years later, in 1992, the Supreme Court narrowly upheld the abortion right. As a key three-justice plurality wrote an opinion affirming Roe v. Wade, they said, "Some of us as individuals find abortion offensive to our most basic principles or morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."
Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter, who made up the critical bloc that joined Blackmun and fellow liberal Justice John Paul Stevens to uphold abortion rights, observed that for nearly two decades people had arranged their lives based on the idea that abortion is available if contraception fails. There was no going back, they said.
But the court abandoned the trimester approach and said the test should be whether a state regulation puts an "undue burden" on a woman seeking an abortion. Blackmun said at the time, mindful of the political pressures that were on the court by the Ronald Reagan and then George Bush administrations to overturn abortion rights, "Just when so many expected the darkness to fall, the flame has grown bright. ... While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election."
Blackmun was born on Nov. 12, 1908, in Nashville, Illinois. He grew up in St. Paul, where his father owned a grocery and hardware store. He received a scholarship to Harvard College, majored in mathematics and graduated with honors in 1929. He graduated from Harvard Law School in 1932. Drawn both to medicine and the law, he became resident counsel at the Mayo Clinic in Rochester, Minn., in 1950, after working first for a Minneapolis firm, specializing in tax and estate planning.
President Dwight D. Eisenhower, upon the recommendation of then-Sen. Hubert H. Humphrey of Minnesota, appointed him to the U.S. Court of Appeals for the 8th Circuit in November 1959. In 1970, President Nixon chose Blackmun to replace Abe Fortas.
Beyond abortion, Blackmun was instrumental in developing the court's rationale on commercial speech, saying that advertising is entitled to First Amendment protection close to that traditionally allowed political speech. "Advertising, however tasteless and excessive it sometimes may seem," he wrote in 1976, "is nonetheless dissemination of information. ... "
He also adopted a broad reading of anti-discrimination law. Reacting in 1989 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."
As the majority voted to curtail the avenues available to state Death Row prisoners, he accused his brethren of "creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights." That most likely did not represent the tough voice of law-and-order that Nixon wanted when he appointed Blackmun. Off the bench, Blackmun had a mischevious side and was adept at mimicking other justices and playing small jokes. He also brought the finest musicians to the court through spring concerts. In 1997, three years after he retired, he played a cameo role in the movie, "Amistad," assuming the role of Justice Joseph Story and reading a Supreme Court decision allowing African mutineers to be freed.
The end came with the fractured hip and subsequent surgery. But true to form, when he was still in intensive care last week, Blackmun told an assistant he was feeling good enough to do some work. "Why don't you bring some mail by," he was said to have asked. "I think I can crank out a few letters."
Blackmun is survived by his wife, Dorothy, three daughters, Nancy, Sally and Susan, and five grandchildren.
Staff reporters Thomas Edsall, Chuck Babington and Ben White contributed to this report.
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