Blackmun, Harry A.

Blackmun wrote the 7-2 majority decision in the controversial abortion case, Roe v. Wade (1973). In twenty-four years on the Supreme Court, he left his mark on disparate constitutional disputes involving federalism, criminal law, commercial speech, and the rights of aliens.

Blackmun was raised in St. Paul, Minnesota, leaving to take his undergraduate and law degrees at Harvard University in 1929 and 1932, respectively. He had a lifelong interest in medicine and was general counsel to the Mayo Clinic in Minnesota from 1950 to 1959. In 1959 President Dwight D. Eisenhower appointed him to the U.S. Court of Appeals for the Eighth Circuit. He was President Richard M. Nixon’s third choice for a position on the Supreme Court, winning confirmation as a justice after the unsuccessful nominations of Clement Haynsworth, Jr., and G. Harrold Carswell.[case]Roe v. Wade[Roe v. Wade];Blackmun, Harry A.[Blackmun, Harry A.]Nixon, Richard M.;nominations to the Court[case]Roe v. Wade[Roe v. Wade];Blackmun, Harry A.[Blackmun, Harry A.]

On the Court

Many thought that Blackmun would reinforce Nixon’s drive to move the Court in a more conservative direction than had characterized it since the 1950’s. Initially this proved to be the case, with Blackmun generally voting to support governmental authority in criminal justice and free speech matters. He voted to support the death penalty in Furman v. Georgia[case]Furman v. Georgia[Furman v. Georgia] (1972) and again in Gregg v. Georgia[case]Gregg v. Georgia[Gregg v. Georgia] (1976) despite personal discomfort with the practice. His personal views did not crystallize into firm opposition to capital punishmentCapital punishment;Blackmun, Harry A.[Blackmun, Harry A.] until late in his career. He dissented in New York Times Co. v. United States[case]New York Times Co. v. United States[New York Times Co. v. United States] (1971), siding with the Nixon administration in its efforts to prevent publication of the Pentagon Papers. He also dissented in Cohen v. California[case]Cohen v. California[Cohen v. California] (1971), siding with the state in its effort to curb vulgar and offensive speech. However, in Bates v. State Bar of Arizona[case]Bates v. State Bar of Arizona[Bates v. State Bar of Arizona] (1977), BlackmunAdvertising of lawyers;Blackmun, Harry A.[Blackmun, Harry A.] wrote the majority decision striking down legal ethics guidelines that prevented lawyers from advertising their services. In addition to its First Amendment implications, the case in essence ended the claim of the U.S. legal profession to the relatively unrestricted power of self-regulation.

Harry A. Blackmun

(Library of Congress)

Despite his early sympathy with the general police power of the state, Blackmun’s most renowned shift away from this view also came early in his Court career. In Roe v. Wade[case]Roe v. Wade[Roe v. Wade];Blackmun, Harry A.[Blackmun, Harry A.] (1973), Blackmun relied on the putative right to privacy implied by the Fourteenth Amendment’s due process clause to support a woman’s right to abortion absent state interference (except in matters relating to maternal health) in the first trimester of pregnancy. Blackmun constructed his decision at least partially around research he had conducted at the Mayo Clinic in the summer of 1972. He later characterized the decision as a landmark in the drive to emancipate women.

Later in his career, Blackmun passionately dissented in the case of Webster v. Reproductive Health Services[case]Webster v. Reproductive Health Services[Webster v. Reproductive Health Services];Blackmun, Harry A.[Blackmun, Harry A.] (1989), in which, he claimed, the Court had allowed the government to intrude improperly on what he believed to be the freedom of women to control their bodies. In Planned Parenthood of Southeastern Pennsylvania v. Casey[case]Planned Parenthood of Southeastern Pennsylvania v. Casey[Planned Parenthood of Southeastern Pennsylvania v. Casey];Blackmun, Harry A.[Blackmun, Harry A.] (1992), Blackmun, dissenting in part, openly lamented what he claimed to be the dangers to individual liberty that would follow his retirement if one more anti-Roe justice were appointed to a Court narrowly divided on the abortion issue. In Bowers v. Hardwick[case]Bowers v. Hardwick[Bowers v. Hardwick] (1986), Blackmun wrote a stinging dissent from the Court’s refusal to extend the right to privacy to homosexual sodomy. Blackmun claimed that the fundamental “right to be let alone” was under assault in the case and that the majority’s understanding of privacy and other constitutional issues was cramped.

Blackmun’s concern for individual rights also manifested itself early on in his majority opinion in Graham v. Richardson[case]Graham v. Richardson[Graham v. Richardson] (1971), holding alienage to be a suspect classification under the Fourteenth Amendment. By so holding, the Court made any governmental classifications based on alienage subject to the highest level of judicial scrutiny. He generally supported the rights of aliens against state discrimination in subsequent alienage cases.

In Regents of the University of California v. Bakke[case]Regents of the University of California v. Bakke[Regents of the University of California v. Bakke];Blackmun, Harry A.[Blackmun, Harry A.] (1978), Blackmun voted against the application of strict scrutiny to racial classifications that are not stigmatizing, thus in effect, casting a vote in favor of governmentally sponsored affirmative action.

In general, by the 1980’s, Blackmun had firmly joined the Court’s liberal camp, often voting with Justices William J. Brennan, Jr., and Thurgood Marshall. He opposed prayer in public schools on establishment clause grounds. In Garcia v. San Antonio Metropolitan Transit Authority[case]Garcia v. San Antonio Metropolitan Transit Authority[Garcia v. San Antonio Metropolitan Transit Authority] (1985), Blackmun reinforced the Court’s dominant interpretation of the commerce clause, writing the majority opinion that eliminated virtually all judicial limitations on Congress’s power under this clause. The decision allowed federal economic regulation of areas in which state jurisdiction had traditionally been supreme. Many observers argued that this opinion later effectively overturned by United States v. Lopez (1995) rendered federalism largely inoperable.

Constitutional Philosophy

Blackmun’s steady shift from moderate conservatism to judicial liberalism, conjoined with his largely pragmatic, nontheoretical approach to issues, makes it difficult to characterize his constitutional philosophy. Blackmun has been viewed as a centrist blessed with the virtue of moderation and a judicial activist bent on reinterpreting the Constitution to suit his own views. How he is characterized often varies with the constitutional philosophy of the person making the characterization.

Blackmun, Harry A. Summary