July 2000 

Remembering Justice Blackmun

by Kent A. Gernander

I met Harry Blackmun in 1994, shortly after his retirement from the United States Supreme Court. The occasion was a reception and dinner in his honor hosted by the Minnesota State Bar Association. During the reception, I was introduced to him as a lawyer from Winona. He brightened at the mention of Winona, recalling the years he spent in Rochester, as a partner with the Dorsey law firm, as counsel to the Mayo Clinic, and later as an 8th Circuit judge.

He inquired about a prominent Winona family for whom he had done legal work. I knew the family and knew of his legal work for them. After some reminiscing, I was unable to resist telling him that I had handled a legal matter for the family, involving a trust he created, and I wondered if he shared my view that it violated the rule against perpetuities. Without hesitation, he acknowledged that it did and asked if it caused any problems. I was able to assure him that it caused no trouble, and he laughed as he explained the mistake to his wife, Dorothy. Law students struggling to understand this arcane rule could, I thought, take some comfort in knowing that even a future Supreme Court justice could violate it.

After dinner, Justice Blackmun spoke on a subject that weighed heavily on his mind and conscience -- the Supreme Court’s recent capital punishment decisions. Harry Blackmun, it should be remembered, was appointed to the Court by Richard Nixon after the Senate had rejected as unqualified the President’s initial "strict constructionist" nominees, Clement Haynesworth and G. Harrold Carswell. During his early years on the Court, Justice Blackmun did little to disassociate himself from the conservative bloc headed by his fellow Minnesotan, Chief Justice Warren Burger. Even in the controversial Roe v. Wade decision, viewed by some as "liberal," Justice Blackmun wrote for a Court majority of seven (including Chief Justice Burger) and the controlling principle of the decision -- that citizens enjoy a right of privacy protected by the Constitution against government intrusion -- is fundamentally conservative.

In death penalty cases, Justice Blackmun voted with the majority of the Court, upholding capital punishment even though he personally "doubted its moral, social, and constitutional legitimacy." For more than 20 years, he later said, he "struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor." Over time, he came to doubt that capital punishment could be meted out fairly and consistently. His dissents from decisions upholding death sentences became more frequent. He lamented: "There is, of course, something distasteful and absurd in the very project of parsing this lexicon of death. But as long as we are in the death business, we shall be in the parsing business as well." Finally, in his 1994 dissent in Callins v. Collins, he asserted:

The death penalty has been abolished in more than 100 nations, 30 of them in the last decade. No European nation imposes capital punishment. Canada has not had an execution since 1962, Mexico since 1937. China accounts for two-thirds of the world’s reported executions; it is followed by Iran, Saudi Arabia, Congo, and the United States.

In the United States, executions have increased dramatically in the last quarter-century. Since 1976 there have been 632 executions, with 341 in the last five years and 98 in 1999. There were 3,652 inmates on death row on January 1, 2000. Nearly 40 percent of those executed in the United States between 1976 and 1999 were black; in 1999, 89 percent of the executions involved white victims. Since 1973, over 80 people have been released from death row with evidence of their innocence. Illinois recently declared a moratorium on executions after investigations indicated more of its condemned prisoners were exonerated than executed, over half its capital sentences were reversed on appeal, and the capital punishment process was tainted by bias, error and incompetence. The President has been asked to declare a moratorium on federal executions, and legislation has been introduced in Congress to abolish the death penalty for federal crimes.

In March of this year, the Minnesota Senate approved funds to place a bust of Justice Blackmun, who died in 1999, outside the entrance to the Minnesota Supreme Court chamber. The measure was removed from a House appropriations bill; opponents cited Justice Blackmun’s Roe v. Wade opinion as a reason to deny him a place of honor in the Capitol. The measure died in a conference committee as the Legislature reached adjournment.

Kent A. Gernander is president of the MSBA. A general practice and trial lawyer in the Winona firm of Streater & Murphy, P.A., he is a graduate of Harvard College and of the University of Minnesota Law School.