Blackmun and Burger: Old friends, old enemies

Harry Blackmun's mother warned him this would happen.

When Blackmun was nominated to the U.S. Supreme Court in 1970, Mrs. Theo Blackmun suggested that his lifelong friendship with fellow St. Paulite Warren Burger would change. Harry protested that their years of comity wouldn't allow that.

Mother knew best. By the time Chief Justice Warren Burger retired in 1986, he and Harry Blackmun barely were speaking to each other.

"The relationship between Harry Blackmun and Warren Burger was complex, multilayered, encrusted with a lifetime of shared experiences and mutual expectations," wrote journalist Linda Greenhouse in "Becoming Justice Blackmun," her account of the Minnesota jurist. "And its dissolution was equally complex."

Greenhouse's book is the basis for "Courting Harry," a new play by Lee Blessing that opened Saturday at History Theatre in St. Paul. Joel Sass directs actors Nathaniel Fuller and Clyde Lund as Burger and Blackmun.

"Their relationship was one of the longest friendships I've ever heard of," said Blessing. "But as grown men they had always worked at a distance and there was not a lot of pressure. The court became a crucible to test their friendship, and it pushed them apart."

Blackmun's papers were released five years after his death, at age 90, in 1999 and Greenhouse, then the New York Times Supreme Court reporter, was given early access to write three articles that she expanded into her book.

History Theatre chose this time slot to produce the play because it coincides with the 40th anniversary of the Roe vs. Wade abortion decision.

Even though Blackmun wrote the historic opinion, Greenhouse pointed out that the court had voted 7-2.

"It was not his personal project," she said. "He took the heat, though, and it became part of his persona."

Blackmun and Burger grew up in St. Paul's Dayton's Bluff neighborhood and were friends from kindergarten. When finances and the difficulty of Harvard Law School had Blackmun in a funk, Burger bucked up his mate in a letter: "I have no end of admiration for you, for your courage and for your determination and fighting spirit that has taken you to the top."

Years later, Blackmun returned the kind feelings: "I do not need to tell you what your friendship and confidence have meant to me over half a century," he wrote in 1967.

Both men considered themselves modestly conservative and Republican, but the paths each took to the court say something interesting about their ambitions, their sense of competition and ideologies. Burger was political, and went to Washington when he was 46 to serve in the Eisenhower administration. He never lived in Minnesota again. Blackmun considered his decade as counsel at the Mayo Clinic to be the happiest period of his life. After accepting appointment to the Eighth Circuit Court of Appeals in 1959, he kept his home in Rochester.

There is truth to the conventional wisdom that Burger retained his conservatism through his time on the court while Blackmun became more liberal — and thus they grew apart. But there is more to it.

Burger had an agenda and expectations for Blackmun when the chief justice recommended his old friend for the high court in 1969. It was not a foolish expectation, Greenhouse said, and in the beginning of his term, Blackmun voted with Burger more often than not. But Blackmun was 60 years old when he joined the court — proud, intelligent and the beneficiary of much experience and education. He looked at the world differently from Burger; it was only a matter of time until their visions collided. Burger could seem overbearing and autocratic. Blackmun, Greenhouse writes, was thin-skinned and occasionally took umbrage where none was necessary.

Blackmun found himself at the center of many crucial decisions over his 24-year stay on the court. Abortion, executive privilege during Watergate, affirmative action and the death penalty were issues that helped define the Burger court. As a playwright, Blessing was overwhelmed so he pared away at his script and considered Blackmun's story on the personal terms of his relationship with Burger.

"I realized that I had to get rid of everything in this play that is not focused on their friendship," Blessing said. "That ordered what facts could go where, and the script became leaner and more efficient."

"One thing that jumped out at me," Greenhouse said. "Blackmun kept a chronology of important events in his journal and when Burger died [June 25, 1995], he took note of it tersely, 'WEB dies.' "

The best of friends had become stubborn foes.