Harry A. Blackmun

After the first argument in December 1971, Burger assigned him the abortion cases, and the assignment consumed two full terms. A first, narrow draft circulated in May 1972; the Court ordered reargument instead, and Blackmun spent two weeks of the summer recess where he had always gone to learn, in the Mayo Clinic's medical library, a Rochester paper reporting at the time that he worked there almost every day. The opinion that emerged on January 22, 1973, spoke for seven justices. 'We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy,' it began, 'of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.' Its holding made him one of the most consequential and most attacked judges in American history: the right of privacy, 'whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.'

Roe v. Wade remade his life. The mail came at once and never stopped, and he kept it, box after box of it, now open with the rest of his papers at the Library of Congress. On the last day of February 1985 a bullet came through the window of his Arlington apartment while his wife Dorothy sat in the room; the FBI studied the threatening letters, and the justice issued a statement of two sentences and went back to work. His clerks remembered the burden carried without ceremony: breakfast with his clerk team every morning, and the same unhurried interest in everyone in the building, guards and cafeteria workers included.

The rest of the docket showed his range and his oddities. Flood v. Kuhn (1972) preserved baseball's antitrust exemption beneath the most famous throat-clearing in the reports, an ode that begins with the New York Nine defeating the Knickerbockers '23 to 1 on Hoboken's Elysian Fields June 19, 1846,' and pauses to name half the Hall of Fame. Bates v. State Bar of Arizona (1977) let lawyers advertise, on the ground that 'commercial speech serves individual and societal interests in assuring informed and reliable decisionmaking.' And in the federalism wars he occupied, for nine years, the exact hinge: his was the fifth vote that created the states'-rights rule of National League of Cities in 1976, and his was the fifth vote that destroyed it in 1985, in an opinion he wrote himself, Garcia v. San Antonio, over the dissent whose prophecy of reversal became the Rehnquist (§100) chapter's story.

What the whole country could see by the late 1980s, the numbers now confirm. In DeShaney v. Winnebago County (1989), when the Court held that a state owed no constitutional duty to a boy beaten into profound disability by the father its caseworkers kept documenting, Blackmun's dissent abandoned the measured register entirely: 'Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing.' In Webster (1989), with Roe's majority crumbling, he closed: 'For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.' In Casey (1992), after the center held, he counted honestly: 'I am 83 years old. I cannot remain on this Court forever'; between the joint opinion's approach and the Chief Justice's, he wrote, 'the distance is but a single vote.' And in his final spring he extended Batson to sex discrimination in jury selection, J.E.B. v. Alabama (1994), the old tax lawyer finishing as the Court's voice for the excluded.

The death penalty closed the longest of his arguments with himself. In Furman v. Georgia (1972) he had voted to uphold the statutes while confessing, in his dissent, a personal 'distaste, antipathy, and, indeed, abhorrence, for the death penalty'; restraint, he then believed, bound the judge to enforce what the man deplored. Twenty-two years later, on February 22, 1994, in Callins v. Collins, the restraint ran out: 'From this day forward, I no longer shall tinker with the machinery of death,' he wrote, dissenting alone from a routine denial of review; two decades of tinkering had convinced him 'that the death penalty experiment has failed.' Scalia (§103) answered in a concurrence of cold scorn, observing that Blackmun had chosen 'one of the less brutal of the murders that regularly come before us' for his announcement rather than a child-murder petition on the same docket. Both opinions are in the reports; the argument between them is not over.

The Supreme Court Database states his journey as no other justice's. His career averages look centrist, a 51.8 percent liberal share against a 49.2 baseline, fourteenth of the modern thirty-three; the averages are the flattened middle of the steepest line in the data. His gap ran from 13.9 points below the docket baseline in his early terms to 18.6 above it in his last ones: a drift of 32.4 points, the largest of the twenty-seven justices with a measurable record, first by either yardstick the site keeps, and real on every test. The decomposition gives 26.5 points to the justice's own leftward movement and 6.0 to a bench moving right beneath him; he and his Court passed each other going opposite directions. And one number survives the whole story: across 1,633 divided cases, his closest colleague of the entire career remains Warren Burger, at 70.7 percent. The friendship died; the ledger, which counts everything and forgets nothing, still files them together. On the eighth pass through this program's oldest question, Blackmun is the outermost answer: the man who moved the most.

He announced his retirement at the White House on April 6, 1994, and the ceremony was pure Blackmun. The President quoted the line he had offered at his confirmation: 'I've been called liberal and conservative. Labels are deceiving. I call them as I see them.' Asked about Roe, he said, 'I think it was right in 1973, and I think it was right today.' Of the whole career: 'It's been a great ride.' Stephen G. Breyer (§108) was confirmed to the seat that summer. Retirement held one last performance: in the 1997 film Amistad he played Justice Joseph Story (§18), a sitting of the Court by other means. He broke his hip in a fall in February 1999, and died of complications on March 4, at ninety. Rehnquist's memorial counted more than 350 opinions for the Court; the President reached for Micah: he did justice, and he loved mercy. He is buried at Arlington National Cemetery, and everything else he kept, the diaries, the report cards, the drafts, the letters, half a million items by the Library's own count, is open to any citizen at the Library of Congress: one of the fullest self-records a justice has ever left, from a man who could compress eighty years of friendship into two words.