Often in Dissent, Blackmun Was ‘Voice for the Outsider’ : Supreme Court: Justice slowly evolved from Nixon appointee to liberal who spoke out for the ‘underdog.’

Sometimes, a justice speaks most clearly when he speaks only for himself.

Last year, for example, the Supreme Court, on an 8-1 vote, ruled that U.S. authorities could seize boatloads of Haitians fleeing their homeland and return them without permitting them to explain why they run.

The lone dissenter was Justice Harry A. Blackmun, who announced his retirement Wednesday.

“The refugees attempting to escape from Haiti do not claim a right of admission to this country . . ,” Blackmun wrote. “They demand only that the United States, land of refugees and guardians of freedom, cease forcibly driving them back to detention, abuse and death. That is a modest plea. . . . We should not close our ears to it.”

More so than any other current justice, Blackmun was determined that the “modest pleas” of the downtrodden would not go unheard.

“What we are losing is a voice for the outsider,” said Yale University law professor Harold Koh, who was a clerk for Blackmun in 1981. “These kinds of cases touched his heart. In his view, the special role of the judge was to protect the underdog.”

This was not a role that anyone would have predicted for Blackmun 60 years ago when he began a career as a tax and estate lawyer in his hometown of St. Paul, Minn. Later, he left his law practice to take an even more comfortable job as general counsel for the Mayo Clinic in Rochester, Minn.

A lifelong Republican, he subsequently won an appointment to the U.S. 8th Circuit Court of Appeals in 1959. He was 61 years old when then-President Richard Nixon, in search of a safe and solid Republican judge, nominated him to the Supreme Court in 1970.

To the surprise of nearly everyone, the quiet Minnesota justice slowly transformed himself into an outspoken liberal and a champion of justice and fairness. In recent years, as fellow liberals retired and conservatives took control of the court, Blackmun spoke most often in dissent.

“Nothing could be more contrary to contemporary standards of decency, or more shocking to the conscience, than to execute someone who is actually innocent,” Blackmun said in a somber voice that echoed through the courtroom last year during arguments in a Texas death penalty case. By a slim majority, his colleagues ruled that the inmate appealing the sentence could be put to death without a last-minute chance to present new evidence indicating that he was not guilty of the crime.

Obviously upset, Blackmun chose to read his dissent aloud. “The execution of a person who can show that he is innocent comes perilously close to simple murder,” he concluded.

Four years earlier, he sounded off when the conservative majority dismissed a lawsuit filed on behalf of an abused child whose plight was ignored by child-custody workers. The boy, Joshua Deshaney, then suffered a nearly fatal beating from his father.

The high court ruled, however, that the Constitution did not protect the child’s welfare in that kind of situation.

“Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly and intemperate father and abandoned by (child-custody workers) who placed him in a dangerous situation,” he wrote. “It is sad commentary upon American life and constitutional principles--so full of late of patriotic fervor and proud proclamations about ‘liberty and justice for all’--that this child, Joshua Deshaney, now is assigned to live out the remainder of his life profoundly retarded.”

No one would point to Blackmun as among the court’s best lawyers or legal analysts. His opinions, though thick with facts and background, often failed to explain their conclusion convincingly.

Indeed, some of Blackmun’s outbursts, such as the “poor Joshua” comment, were mocked by other justices. Yet when a case involved real people and real problems, Blackmun often grasped the issue with more force than his more intellectually powerful colleagues.

“He could connect with the ordinary people and take an interest in their problems. That’s what motivated him,” said Georgetown University law professor Chai Feldblum, also a former Blackmun clerk. “He wanted the court to remain as the strong protector of civil rights and human rights for all people.”

In 1986, Blackmun spoke for the dissenters when the court upheld a Georgia law that made sex between homosexuals a crime. The majority said the Constitution did not create a right to engage in sodomy, a comment that angered Blackmun.

“This case is about . . . the right most valued by civilized men, namely, the right to be let alone,” Blackmun said, quoting an earlier opinion by Justice Louis D. Brandeis.

University of North Carolina law professor Molly McUsic said Blackmun will be best remembered for his opinions on a woman’s right to privacy and reproductive freedom.

“He thought it was the court’s role to stop government interference in people’s private lives,” said McUsic, who was a clerk for Blackmun in 1992.

And of course, Blackmun was not always on the losing end. His best known opinion for the 7-2 majority in Roe vs. Wade in 1973 held that the Constitution protects a woman’s right to choose abortion.

He also spoke out strongly in 1991 against employers who set “fetal protection policies” to exclude women from their manufacturing plants. These rules typically applied to all women who could not prove that they were sterile.

“An employer may take into account only the woman’s ability to do her job,” Blackmun wrote for a 6-3 majority. “Fertile women . . . can participate in the manufacture of batteries as efficiently as anyone else.”

While employers must warn women about possible dangers, “decisions about the welfare of future children . . . are hers to make,” he wrote.

His role in Roe vs. Wade earned Blackmun one other distinction as well: He is the justice receiving the most hate mail.

“I remember him showing us a Christmas card that read: ‘Merry Christmas. I hope this is your last one,’ ” McUsic said.

Asked about the Roe vs. Wade decision during a White House news conference Wednesday, Blackmun replied directly: “I think it was right in 1973, and I think it was right today. I think it’s a step that had to be taken as we go down the road toward the full emancipation of women.”

President Clinton praised Blackmun. “He is a good man who has earned the respect and gratitude of every one of his fellow countrymen and women,” he said.

Modest to the end, Blackmun quickly offered a rejoinder. “Mr. President, you’ve been generous, far too generous in your remarks. There are those who don’t agree with you.”

He also had a ready response when asked why he was retiring this year. “Why now? 85 is pretty old,” he said.