Harry A. Blackmun: The Outsider Justice

414 Pages·2008·2.76 MB·English

by  Tinsley Yarbrough

Harry A. Blackmun
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Harry A. Blackmun
The Outsider Justice
Tinsley E. Yarbrough
1
2008
3
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Library of Congress Cataloging-in-Publication Data
Yarbrough, Tinsley E., 1941–
Harry A. Blackmun : the outsider justice / Tinsley E. Yarbrough.
p. cm.
Includes bibliographical references.
ISBN 978-0-19-514123-8
1. Blackmun, Harry A. (Harry Andrew), 1908–1999.
2. Judges—United States—Biography.
3. United States. Supreme Court—Biography. I. Title.
KF8745.B555Y37 2007
347.73'2634—dc22
[B] 2007011750
9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
To Mary Alice
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Preface
Asked late in life to describe his feelings on fi rst taking a seat on the
Supreme Court, one of the nation’s most powerful and infl uential
institutions, Justice Harry Andrew Blackmun gave a surprising response.
“I don’t know how it affects other people,” he confessed, “but I think there
is a feeling of [being] almost desperate . . . wondering whether one is quali-
fi ed to be there. After all, this is the end of the line. I well remember going
into the robing room and the then-justices were lined up, and there were
Hugo L. Black and William O. Douglas and William J. Brennan, Jr. and
John Harlan, and . . . I asked myself, ‘What am I doing here?’ ”1
Examining the record he compiled during nearly a quarter century
on the high bench, many of Justice Blackmun’s critics wondered the same
thing. In many ways, his life was the typical American success story. Raised
in the humble Dayton’s Bluff section on the east side of St. Paul, Minnesota,
the future justice compiled an outstanding high school record. Despite
working many hours at a host of jobs to supplement a tuition scholar-
ship, he graduated summa cum laude from Harvard College in 1929 and
completed his law studies at Harvard in 1932, at the height of the Depres-
sion. After clerking eighteen months for John B. Sanborn, a distinguished
judge of the U.S. Court of Appeals for the Eighth Circuit, Blackmun took
a position with a leading Minneapolis fi rm, becoming a junior partner in
1939 and general partner in 1943. An undergraduate mathematics major
who originally considered a career in medicine rather than law, he served
in1950–59 as resident counsel at Rochester, Minnesota’s famed Mayo Clinic.
In 1959, Judge Sanborn took senior status on the Eighth Circuit, but only
after getting some assurance from the Eisenhower administration that his
former clerk would be his replacement. In 1970, after eleven years on the
appeals bench, Blackmun was elevated by Richard Nixon to the Supreme
Court, where he would serve for twenty-four years. As the author of
Roe v. Wade (1973), which Blackmun often said would be etched on his
tombstone, the justice became one of the most familiar and controversial
members of the Burger and Rehnquist Courts, basking in the adulation of
pro-choice admirers, a target of outrage among critics, who compared Roe
to the infamous Dred Scott decision denying citizenship to African Ameri-
cans, and excoriated Blackmun for condoning “baby killers.”
Without his association with that spectacularly controversial ruling
and its progeny, however, Justice Blackmun arguably would have achieved
little prominence as a justice. Even with the Roe connection, one might
seriously question whether he is a worthy choice for a judicial biography,
at least by the usual standards used to select such subjects. The copious
case summaries that he personally dictated to secretaries prior to hearing
oral argument in cases clearly refl ected a fi rm grasp of doctrinal issues
confronting the Court, as did his detailed accounts for his clerks of the
justices’ conference discussions of argued cases. But Blackmun left the
drafting of his opinions and their doctrinal content largely to his clerks,
and though he meticulously edited their efforts, he seemed more alert to
grammatical and spelling errors the opinions might contain than to the
substantive arguments they embraced.
In fact, and no doubt to his clerks’ tremendous relief, Justice Blackmun
was most likely to assume the initiative in drafting opinions for narrow tax
and related cases that his clerks, and those in other chambers, considered
the “dogs” of the Court’s docket, but that the former tax and estate lawyer
still found fascinating. It is thus hardly surprising that in a recent survey of
lawyers, judges, and prelaw students, only the students ranked Blackmun
among the “great” justices—and they were doubtless infl uenced more by
his association with Roe than by familiarity with his entire record.2
Preface
viii
Of course, some justices—most notably, perhaps, Blackmun’s senior
colleague William J. Brennan Jr.—achieve reputations as outstanding jurists
not on the basis of a distinctive constitutional philosophy, but as a result
of their skill at marshaling majorities. For Brennan, “fi ve” (as in 5–4
majority) was the most important word in the legal lexicon. To obtain
that vote, he not only regu larly called on his consummate people skills to
negotiate the result he desired, but was also entirely willing to manipulate
constitutional doctrine towardthat end. Blackmun, who spent much of
each day cloistered in the Court’s library, had neither the personality nor
the talent for such maneuvering.
As a jurisprudential giant or gifted Court tactician, then, Justice Black-
mun hardly qualifi es for biographical treatment. The very feelings of self-
doubt and inadequacy that plagued his ascent to the Court, however, make
him a fascinating subject for exploration. No justice has been more closely
associated with empathy for society’s “outsiders” or “little people,” those den-
izens of that “other world out there,” to whom Blackmun so sympathetically
referred in his judicial opinions. His colleagues could focus, if they wished,
on legal doctrine; he would keep his eye fi rmly on the human dimension of
cases and the Court’s impact on real people. Blackmun’s feelings on that score
have been attributed to a variety of factors, including a growing awareness of
social injustices to which he was regularly exposed as a justice, his defensive-
ness about Roe and the rulings it spawned, and his growing estrangement
from his boyhood friend Warren Burger and the chief justice’s conservative
stance on social issues facing the Court. But Blackmun’s concern for “little
people” also arguably refl ected in considerable part his own self-image as
an outsider. During the extensive oral history that he conducted with the
justice, former clerk Harold Koh asked Blackmun how he had developed an
affi nity for “the little people” and “the outsiders,” about whom the justice
not only wrote in his opinions, but had even referred to during his Senate
confi rmation testimony. “Well,” Blackmun replied, “I suppose growing up as
I did there on the east side of St. Paul the people I knew were people of not
great infl uence politically or by wealth or otherwise. They lived on the other
side of town. And naturally I probably had empathy for them.”3
The justice might well have added that he considered himself one
of society’s outsiders. Blackmun grew up in a household plagued with
fi nancial instability. His father, a constant disappointment to his only
Preface
ix