Obituary: Harry Blackmun

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The Independent Culture
HARRY BLACKMUN was perhaps the most striking example of an increasingly common figure on the modern United States Supreme Court - a justice chosen in the belief he is a safe conservative, but who over his career on the bench moves steadily to the court's liberal wing.

Blackmun was selected by President Richard Nixon on 14 April 1970, after the Democrat-controlled Senate had rejected two earlier nominees to fill the seat vacated by Justice Abe Fortas, who had resigned under pressure almost a year earlier. At that time Nixon did not hide his desire to create a more right-wing court after the libertarian activism of the Earl Warren era.

Warren Burger, Blackmun's childhood friend from Minneapolis and a proven conservative jurist, had just been elevated to Chief Justice, and the Republican President wanted another "strict constructionist" - i.e. a judge who follows the narrowest interpretation of the constitution - to seal the desired new complexion of the court. Blackmun, a cautious federal appellate judge, seemed to fit the bill perfectly. On 12 May 1970 he was sworn in, the 98th man to sit on the highest bench in the land.

But within three years he had earned himself a place in history by writing the landmark Roe v Wade ruling which for the first time confirmed a woman's right to have an abortion. With the passing years, the "conservative" emerged as the most liberal voice on the high court. In 1992, two years before he retired at the age of 86, it was his casting vote which preserved the abortion ruling by a 5-4 margin. And, almost at the very end of his tenure, Blackmun took the most unusual step for a sitting justice of making public his position on a burning issue of the day, in this case his opposition to capital punishment under all circumstances.

Had Nixon and his advisers looked a little closer, they might have predicted what would happen. Blackmun's political leanings might have seemed Republican. But his ancestry, largely German and devoutly Methodist, suggested caution and humanity. Minnesota, the state in which he grew up, has always been one of the most progressive and tolerant in the US. While his closest friend at elementary school, a colleague on the local newspaper round and lifelong tennis partner might have been Warren Burger, Blackmun never hid his sympathy for Hubert Humphrey, elected Mayor of Minneapolis in 1945, and later US Senator, Vice-President, and the unsuccessful Democratic opponent of Nixon in the 1968 race for the White House.

Humphrey, it is said, was at least as responsible as Burger for the appointment in 1959 of Blackmun, then general counsel for the Mayo Clinic in Rochester, Minnesota, as a federal judge on the eighth circuit of the US Court of Appeals, seated in St Louis, Missouri. Blackmun's judgements, covering a swathe of the Midwest from North Dakota as far south as Arkansas, also gave a taste of what was to come. Though he was regarded as conservative on matters of crime, and considered a supporter of capital punishment, he was liberal on other matters. Among his appellate rulings were that the Communist Party be allowed on the Minnesota state ballot, that the leather strap be banned as a punishment in Arkansas jails, and that the state speed desegregation in its schools.

The new associate justice of the Supreme Court therefore had given clues as to what he might be about. And as with other justices before and since, Blackmun found his elevation a liberating experience. The appointment after all was for life. A justice might be picked by a President, but thereafter his only duty is to the law and his own conscience, not to a patron or political party. Slowly, Blackmun's personal philosophy became clear, as a dogged defender of civil rights, and a firm believer in the separation of church and state. By the late 1980s, he and Thurgood Marshall were the most reliable liberal standard-bearers on the court. By 1993 he was the sole dissenter to a court ruling denying asylum hearings to refugees from Haiti.

Abortion however is the issue for which he will be ever remembered. The 1973 opinion, which occupied Blackmun for a full year, argued that the constitution protected "a right of personal privacy" that in turn covered a woman's right to end a pregnancy. Backed by a 7-2 vote, the ruling put an end to the criminal punishment for abortion which still applied in many states. But the outcome led directly to America's impassioned anti-abortion movement, and an emotive, sometimes violent, national debate which persists to this day.

He was the victim of hate mail and death threats. "Butcher of Dachau, murderer, Pontius Pilate, King Herod - you name it, I've been called it," Blackmun said later. As the court moved steadily rightward under the current Chief Justice William Rehnquist, abortion rights came under mounting threat. The 5-4 vote in 1992 just held the line however, and today, thanks to the appointment by President Clinton of the liberals Ruth Bader Ginsburg and Stephen Breyer to the court, its position seems more secure than for many years.

Controversy did not sit naturally on Harry Blackmun's shoulders. He was a modest, quiet man, with a wry and understated humour. He was meticulous of habit, of the sternest integrity, possessed of an encyclopaedic memory and a Stakhanovite work ethic. But he never lost sight of the real-life, practical impact law-making had on ordinary people. Hence perhaps his inner struggle over capital punishment.

On the Eighth Circuit he would generally uphold the death penalty. But later his views changed, especially as capital punishment became more widely applied from the mid-1980s on. In a soft-spoken, deeply moving television interview, Blackmun spoke of the anguish of the hasty conference calls in which the justices had to decide appeals from convicts due to die within hours. Long dubious of the deterrent effects of capital punishment, he had, he said, become convinced that it was wrong under all circumstances. Few minds were changed by his conversion. But that he acknowledged it in public exemplified the honesty and dignity of one of the most distinguished American jurists of his generation.

Rupert Cornwell

Harry Andrew Blackmun, judge: born Nashville, Illinois 12 November 1908; Associate Justice of the US Supreme Court 1970-94; married 1941 Dorothy Clark (three daughters); died Arlington, Virginia 4 March 1999.

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