Blackmun: Union--and Equal Justice

In his memorabilia-filled office at the U.S. Supreme Court, Justice Harry A. Blackmun displayed on one shelf a small cube of clear plastic containing a swatch of torn fabric. It was a memento from when a bullet had crashed through his apartment window, ripping into a chair. It also seemed an acknowledgment of the bitter controversy that followed the justice like a shadow from the moment, in January 1973, when he published his opinion for the court in Roe vs. Wade, establishing a woman’s right to obtain an abortion. Remembering Blackmun, commentators will emphasize that he is marked indelibly as the author of Roe. Because of that unsought act of authorship, Blackmun will live on either as the preeminent champion of women’s rights or as the countenencer of a profound moral wrong--depending on one’s perspective.

To focus on Roe, however, to think of it as the full measure of this justice, important though it is, would be to miss both the essence of his jurisprudence and his place in the history of the modern court. Beyond Roe, Blackmun leaves a remarkable legacy in at least two respects. First, he stands as the most empathetic justice in recent times, the justice most appreciative that legal cases arise from the unseen anguish of real people, whom the law can either soothe or inflame.

Blackmun was sometimes mocked for this. When he began a dissenting opinion “Poor Joshua!” in a case where the court relieved a state child-welfare agency of liability after it failed to protect a young boy from violent parental abuse, Blackmun’s critics had a field day. But he was the justice most likely to weave silken threads of compassion across the gap between what is law and what is just--and that is an inclination sadly foreign to the current court.

Second, Blackmun’s 23-year tenure as justice serves as a remarkable example both of how dramatically a person can change while serving on the Supreme Court and of how dramatically the court can change around him. When President Richard M. Nixon appointed Blackmun to the court in 1970, he was a federal appellate judge with a solid conservative reputation--the kind of law-and-order man Nixon wanted. On arrival at the court, Blackmun was dubbed the “Minnesota Twin”--a reference to the home state he shared with conservative Chief Justice Warren E. Burger, a fellow Nixon appointee, whose lead Blackmun was expected slavishly to follow.

Year by year, Blackmun increasingly surprised. By the time he retired in 1994, he was the court’s leading liberal voice, a passionate advocate for the rights of women, gays and minorities, and a champion of civil liberties generally and of federal power over the conservative doctrine of “states’ rights.” Nowhere was Blackmun’s evolution more evident than in the area of capital punishment. In 1972, he could find no constitutional basis for attacking the death penalty; in 1994, he declared the death penalty unconstitutional in every case.

Many have proposed explanations for Blackmun’s apparent transformation. The most popular theory ascribes his emergence as a liberal to an extreme defensiveness of his Roe opinion in the face of harsh and sometimes ridiculing criticism. According to this theory, Blackmun turned left as he distanced himself from Roe’s conservative critics on the court while bonding with liberal Justices Thurgood Marshall and William J. Brennan Jr., whose support for Roe was unwavering.

But to anyone who spent time with Blackmun, or even visited his office, the primary reason lies elsewhere. One great pleasure of having served as one of Blackmun’s law clerks was his tradition of having former clerks meet him for breakfast at the court. When thinking about the arc of Blackmun’s career, I always return to one particular breakfast a few years ago.

Blackmun had recently finished reading “Killer Angels,” the historical novel about the Civil War battle of Gettysburg, in which the Union decisively stemmed the onrushing tide of the Confederacy. Our discussion that morning focused on the fight at Little Round Top, where Col. Joshua L. Chamberlain rallied his regiment, the 20th Maine, held his ground against overwhelming odds and saved the Union forces from certain defeat. As I looked across the table at Blackmun, his eyes were brimming with emotion at the recollection of Chamberlain’s courage and commitment to the Union and its ideals of freedom and equality.

Walking upstairs to Blackmun’s chambers, I went into his office. Behind his desk hung the sword of one of his grandfathers, who had fought for the North. In a corner stood a small shrine to Abraham Lincoln: framed quotations; a silhouette; and documents bearing the signature of the president who had preserved the nation. Along the side wall was the stand-up desk of John Sanborn, a judge for whom the justice had clerked a half-century before, and whose father was a Civil War hero.

To me, the emotions at breakfast, the office decor, these reflected the very core of the justice. Born in Illinois, raised in Minnesota, Blackmun was among the last of a generation now passing that had known and spoken with those who risked their lives in the war that freed the slaves and enshrined in the Constitution the words “equal protection of the laws.” The spirit of that struggle, a deep, almost romantic, belief in the idea of the United States as a single nation committed to broad principles of moral governance, fairly radiated from the man.

Seen in the light of his abiding belief in the republicanism of Lincoln, Blackmun’s emergence as a liberal force on the modern court was all but preordained. If there is a single issue that has defined the enterprise of the modern court, it is the issue of race and the dismantling of Jim Crow in the aftermath of Brown vs. Board of Education. On this matter, and on the full spectrum of related matters--from states’ rights to voting rights to the death penalty (a primarily Southern phenomena)--Blackmun, the “Union” man, could go only one way.

So it was that Blackmun defended affirmative action in Bakke, declaring, “to get beyond racism, we must first take account of race,” and wondered, in 1989, whether the court’s conservative majority “still believes that race discrimination . . . is a problem in our society, or even remembers that it ever was,” and argued in one of his most important dissents that the Georgia death-penalty system was unconstitutionally biased against blacks.

In many respects, the court’s agenda has not changed--as the national schism over race and states’ rights haunts us still. And when it does, Blackmun’s voice, though now stilled, will speak on through his opinions. For a man who wanted most to be thought of as a diligent toiler in the vineyards, that is a fine legacy indeed.