A passionate voice bids farewell.

On April 6, 1994, after almost 24 years on the Supreme Court, Justice Harry Blackmun announced that he was retiring at the end of this Term. As the media assessed his career on the bench, two features were widely noted: He was the author of Roe v. Wade,(1) and during his time on the Court he shifted dramatically from being a very conservative Justice to being its most liberal member.(2)

Justice Blackmun was the staunchest supporter of abortion rights on the Court, having written the majority vote in Roe and having voted in a pro-choice manner in every abortion case since. Yet this could hardly have been predicted when Blackmun joined the Supreme Court in 1970. He was appointed by President Richard Nixon only after two Southern conservatives, Clement P. Haynesworth, Jr., and G. Harrold Carswell, had been rejected by the Senate for the seat vacated due to the retirement of Justice Abe Fortas.

In his first years on the Court, Justice Blackmun was a solid conservative vote. Indeed, he and Chief Justice Warren Burger, who also hailed from Minnesota and who joined the Court at about the same time as Blackmun, were called the "Minnesota Twins" because of their almost constant alignment in decisions.(3) Justice Blackmun's initial conservatism is clearly reflected in his early opinions.

For example, in the famous Pentagon Papers case, New York Times v. United States, the Court ruled unconstitutional a prior restraint on the publication of a history of U.S. involvement in the Vietnam War.(4) Justice Blackmun wrote an angry dissent in which he declared:

I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiations with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.(5)

Another example of Justice Blackmun's initial conservatism was in Coben v. California,(6) where the Court, in an eloquent opinion by Justice John Harlan, held that a boy could not be punished for carrying into a courthouse a jacket that said, "F __ the Draft." Justice Blackmun, again in an angry dissent, wrote: "Cohen's absurd and immature antic ... was mainly conduct and little speech ... [T]his Court's agonizing over First Amendment values seems misplaced and unnecessary."(7)

Over the years that followed, Justice Blackmun became steadily more liberal. In many areas, he repudiated positions taken earlier. For instance, early in his career on the Court, he belittled the idea of flag desecration as a form of protected expression.(8) But more than a decade later, he voted that laws prohibiting flagburning violate the First Amendment.(9)

Even more dramatically, in the early 1970s, Justice Blackmun argued that the Supreme Court should not use the Eighth Amendment to limit the states' ability to impose the death penalty. In Furman v. Georgia, Justice Blackmun joined the other Nixon appointees--Chief Justice Burger and Justices Lewis Powell and William Rehnquist--in dissenting from the Court's conclusion that the death penalty is cruel and unusual punishment where the jury has untrammeled discretion in imposing the sentence.(10)

Although he expressed personal misgivings about capital punishment, Justice Blackmun said that the issue is solely for the legislature and "should not be taken over by the judiciary in the modern guise of an Eighth Amendment issue."(11)

Two decades later, in 1994, Justice Blackmun declared that "there is little doubt now that Furman's essential holding is correct."(12) In fact, Justice Blackmun announced that he now believes that the death penalty violates the Eighth Amendment and that he would vote to invalidate all death sentences during his remaining tenure on the Court.

From this day forward, I no longer shall tinker with the machinery of death.... Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its constitutional deficiencies.(13)

Mental Evolution

Clearly, Justice Blackmun's shift to the left is not an illusion created by the rest of the Court's changing around him. There is no doubt that Harry Blackmun changed greatly during his time on the Court. Indeed, it is difficult to think of any other Justice who changed as much while on the bench.

Perhaps historians and psychobiographers will someday offer theories for this transformation. Perhaps it is simply that Harry Blackmun is an extremely intelligent man--a summa cum laude graduate of Harvard University and a graduate of Harvard Law School with a distinguished record as a private practitioner and as a federal court of appeals judge--who constantly reflected on his role and his views. This process caused him to see and appreciate the critical role the Supreme Court plays in protecting those whose interests are otherwise ignored in society.

As time went by, Justice Blackmun became an increasingly passionate voice on the Court. In an institution where prose is often leaden and stilted, his eloquent voice cried out for the Court to be concerned for the poor, for abused children, for women, for gays and lesbians, for racial minorities--for those U.S. society all too often neglects. Above all, this is how Justice Blackmun should best be remembered and what will most be missed with his retirement.

Examples of this voice abound. One of Justice Blackmun's most important contributions to constitutional law was in decisions holding that commercial speech is protected by the First Amendment. The initial ruling was Justice Blackmun's majority opinion in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, which held that advertising prescription drug prices was protected by the First Amendment.(14)

Justice Blackmun justified the result less on the basis of First Amendment doctrine than in human terms:

Those whom the suppression of prescription drug information hits the hardest are the poor, the sick and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn ... where their scarce dollars are best spent.... [I]nformation as to who is charging what ... could mean the alleviation of physical pain or the enjoyment of basic necessities.(15)

One of his most famous and eloquent opinions was a dissent in DeShaney v. Winnebago County Department of Social Services, where the Court held that the local government did not violate the Constitution when it ignored complaints of child abuse that ultimately caused a four-year-old boy to suffer severe, irreversible brain damage.(16) Justice Blackmun spoke passionately:

Like the antebellum judges who denied relief to fugitive slaves, the Court claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging.

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents...who knew or learned what was going on, and yet did essentially nothing.... [I]t is a 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.(17)

A Vote for Autonomy

A central theme in Justice Blackmun's decisions was the need to protect individual autonomy from government intrusions. His commitment to abortion rights is one example. Another is his strong dissent in Bowers v. Hardwick, where the Court, by a 5 to 4 decision, held that the right to privacy does not include a right to engage in private homosexual activity.(18)

[T]his case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone...."(19)

I can only hope that the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do.(20)

In the United States today, perhaps no group is more powerless and vulnerable than those on death row. In case after case, the Supreme Court has narrowed the constitutional and procedural protections for capital defendants. With the retirement of anti-death-penalty Justices William Brennan and Thurgood Marshall, Justice Blackmun emerged as the leading dissenting voice on a pro-death-penalty Court.

Last year, for example, he wrote a stirring dissent in Herrera v. Collins.(21) The Court in Herrera appeared to hold, 5 to 4, that the Constitution is not violated by executing an innocent person so long as there

is not another specific constitutional violation. Justice Blackmun lamented: "Nothing could be more contrary to contemporary standards of decency, or more shocking to the conscience, than to execute someone who is actually innocent.... The execution of a person who can show that he is innocent comes perilously close to simple murder."(22)

For many of the Justices, constitutional law is seemingly about abstract doctrines in an endless stream of appellate cases. But Harry Blackmun saw the human impact of Court decisions. His was a voice for caring and for respecting the humanity and dignity of every individual. His was a voice for a better, more decent government and society.

People who have clerked for Justice Blackmun all describe a man of unfailing kindness and decency, a tireless worker who cared about every detail and often even checked the accuracy of his law clerks' footnotes. These traits are reflected in his legacy to the Court: a large body of carefully written, impeccably researched opinions, often expressed with deep conviction and a real sense of caring. With this legacy, he is likely to be regarded as one of the great Justices in U.S. history.

Notes

(1)410 U.S. 113 (1973).

(2)David G. Sarage, Often in Minority, Blackmun Was 'Voice for the Outside,' L.A. TIMES, Apr. 7, 1994, at 1, 14.

(3)Harry Kalven, Jr., Foreword: Even When a Nation Is at War, 85 HARV. L. REV. 3, 7 (1971).

(4)403 U.S. 713 (1971).

(5)Id. at 763 (Blackmun, J., dissenting).

(6)403 U.S. 15 (1971).

(7)Id. at 27 (Blackmun, J., dissenting).

(8)Smith v. Goguen, 415 U.S. 566, 590-604 (1974).

(9)United States v. Eichman, 110 S. Ct. 2404 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989).

(10)408 U.S. 238 (1972).

(11)Id. at 410 (Blackmun, J., dissenting).

(12)Callins v. Collins, 114 S. Ct. 1127, 1131 (1994) (Blackmun, J., dissenting from the denial of certiorari).

(13)Id. at 1130.

(14)425 U.S. 748 (1976).

(15)Id. at 763-64.

(16)489 U.S. 189 (1989).

(17)Id. at 212-13 (Blackmun, J., dissenting).

(18)478 U.S. 186 (1986).

(19)Id. at 199.

(20)Id. at 214 (Blackmun, J., dissenting).

(21)113 S. Ct. 853 (1993).

(22)Id. at 876, 884 (Blackmun, J., dissenting).