Harry Blackmun’s journey from right to center to left creates a compelling, complex legacy—one that is beautifully captured both in real-life jurisprudence and on the Saint Paul stage.
Drawing rave reviews and enthusiastic audiences at the History Center in downtown Saint Paul, Courting Harry—the play exploring the relationship between two of the city’s most illustrious sons, Supreme Court Justice Harry Blackmun and Chief Justice Warren Burger—is drawing to a close after a highly successful run.
Devised by Minneapolis-born playwright Lee Blessing, the production is based on the 2005 book Becoming Justice Blackmun by Pulitzer Prize-winning journalist and former New York Times Supreme Court reporter Linda Greenhouse. The book and play draw directly from Blackmun’s personal papers, which were opened to public scrutiny in 2004—just five years after his death in 1999. This was an unusually brief restriction compared to the lengthy lockups typically dictated by passing jurists.
To kick off the revival, Blessing and Greenhouse recently joined Senior Federal District Court Judge John Tunheim of Minneapolis for a panel discussion at the History Center. It was one of several featured programs, including a roundtable with several of Justice Blackmun’s former law clerks.
The 80-minute, no-intermission performance traces the interactions between the two boyhood pals from St. Paul’s Dayton’s Bluff neighborhood overlooking the Mississippi River. It follows them through their tenures as federal appellate judges and into their ensuing 17 years as colleagues on the Supreme Court, spanning Blackmun’s 24-year service from 1970 to 1994.
The two-man play portrays a very warm early friendship that became so deeply frayed in later years that the jurists barely spoke. Blackmun, who decades earlier had served as the best man at Burger’s wedding, became so estranged that he did not even attend the Chief Justice’s funeral in 1995.
The Play’s the Thing
While the personal relationship between the two jurists forms the dramatic backbone of the play, it also frames their work together on the High Court. They operated in virtual lockstep during their early years before drifting sharply apart. As Chief Justice Burger remained steadfast as the anchor of the court’s conservative wing, Blackmun famously shifted from his initial conservative moorings to become a reliable voice within the liberal wing.
At the center of the narrative is Blackmun’s authorship of the 1973 decision in Roe v. Wade, which established a woman’s constitutional right to abortion and included the Chief Justice in the 7-2 majority.
The legacy of that ruling is well-known, as is its ultimate overturning four years ago by the High Court in Dobbs v. Jackson Women’s Health Organization. The Roe case was so high-profile that Blackmun remarked upon his retirement in 1994 that his authorship of the decision would prominently define his epitaph. He was right; news reports of his passing in 1999 focused invariably on his role in the case, which dominated legal, political, and social dialogues for nearly half a century.
However, his monumental role in Roe should not obscure a number of other groundbreaking decisions issued during his judicial career. That career included 11 years on the U.S. Court of Appeals for the Eighth Circuit in St. Louis, a lengthy tenure in private practice with the Dorsey law firm in Minneapolis, and a highly regarded stint as in-house counsel for the Mayo Clinic in Rochester during the 1950s.
President Richard Nixon ultimately nominated Blackmun to the Supreme Court at the urging of Burger, following two unsuccessful attempts by the Nixon administration to seat conservative Southern nominees. The conclusion of Courting Harry provides an opportune occasion to review a handful of the other landmark decisions Blackmun shaped during his years on the High Court.
Majority Matters
Justice Blackmun’s authorship of majority rulings for the Court spanned a vast array of subjects ranging from antitrust law to consumer rights and scientific evidence.
Flood v. Kuhn (1972)
In 1972, Blackmun wrote the majority opinion in Flood v. Kuhn, which upheld Major League Baseball’s traditional “reserve clause”—a provision preventing players from moving between teams without their club’s consent. The decision rejected a claim that the clause violated federal antitrust law.
Blackmun, a profound baseball devotee, based his decision on a 1922 Supreme Court ruling that held baseball did not constitute “interstate commerce.” He famously concluded that while the original precedent was “unrealistic, inconsistent, [and] illogical,” it should nonetheless be upheld to avoid systemic confusion.
The ruling proved to be a pyrrhic victory for baseball management. Within a few years, independent labor arbitrators effectively dismantled the contract restrictions, ushering in the modern era of free agency and soaring professional sports salaries. A parallel restriction in professional football was similarly struck down in Minneapolis by Federal District Court Judge Earl Larson in the 1975 case Mackey v. NFL.
Virginia Pharmacy (1976) and Bates v. Arizona (1977)
In a pair of related cases, Justice Blackmun authored decisions that fundamentally benefited consumers by expanding First Amendment protections to commercial speech:
-
In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), he held that state regulations prohibiting the advertising of pharmaceutical drug prices violated the First Amendment.
-
He applied the exact same rationale a year later in Bates v. State Bar of Arizona (1977), ruling that states could not prohibit lawyers from advertising their fees to the public—a decision vehemently opposed by Chief Justice Burger.
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
To fend off the proliferation of “junk science” in federal trials, Blackmun established crucial ground rules for expert witness testimony. He ruled that trial judges must carefully act as “gatekeepers,” assessing the scientific plausibility and relevance of proposed expert testimony before allowing it into evidence. This Daubert standard has since been adopted, with slight modifications, across many state court systems, including Minnesota’s.
Dissenting Decisions
Justice Blackmun was not always in the majority. As he moved toward the court’s liberal wing while the rest of the tribunal shifted right, he penned several powerful dissents that tested his judicial conscience.
Cohen v. Cowles Media Co. (1991)
This prominent Minnesota case arose after two Twin Cities daily newspapers published the identity of Dan Cohen, a Republican political operative, despite their reporters having promised him anonymity in exchange for a campaign leak. The Supreme Court ruled 5-4 that the First Amendment does not shield the press from general breach-of-contract liability.
Blackmun fiercely dissented, joined by two colleagues, arguing that newspapers should not be legally punished for publishing truthful information regarding a political campaign on a matter of clear public concern.
DeShaney v. Winnebago County (1989)
In a heart-wrenching case involving a young boy named Joshua who suffered catastrophic abuse, the court majority ruled that local child protection authorities in Wisconsin could not be held constitutionally liable for failing to intervene. Objecting to the majority’s refusal to let the lawsuit proceed, Blackmun expressed his profound grief for the child, evocatively beginning his dissent with a phrase that echoed through legal circles:
“Poor Joshua!”
Callins v. Collins (1994)
In one of his final opinions before retiring at age 85, Blackmun issued a zealous disavowal of capital punishment. Though he had historically supported the death penalty—including dissenting in the landmark 1972 Furman v. Georgia case that temporarily struck down existing capital statutes—he gave a permanent boost to the anti-execution movement with a memorable proclamation:
“From this day forward, I no longer shall tinker with the machinery of death.”
An Enduring Legacy
Within five months of that final dissent, Blackmun concluded his extraordinary 24-year term on the tribunal. He had traveled a remarkable path: from the intimate friend and judicial ally of his childhood chum Chief Justice Burger—when the pair was known affectionately as the conservative “Minnesota Twins”—to a fierce defender of civil liberties and one of the most liberal voices on the bench.
His evolution set the stage for his successor, Justice Stephen Breyer, who expanded upon that judicial posture during his own subsequent three decades on a court that continued its rightward shift. Harry Blackmun’s journey from right to center to left creates a compelling, complex legacy—one that is beautifully captured both in real-life jurisprudence and on the Saint Paul stage.
