Two Reviews of The Play about Justice Harry Blackmun

May 3, 2013

Anna Lee and Ross Bronfenbrenner are students at Macalester College in St. Paul, Minnesota. 

Catering to Its Audience

I don’t remember when I began to recognize the importance of Roe v. Wade. Until high school, I had deemed the issue of abortion removed from my everyday life. I had just begun dating boys, fully maturing into a woman, and grasping my self-identity. Abortion couldn’t seep into my already-complicated thoughts. If one had asked about my stance on abortion, I simply would’ve said, “I don’t know” or “I’m never going to be knocked up, so it doesn’t matter!”

I boldly assume that Harry Blackmun’s daughter, Sally, had thought the same way before her unexpected pregnancy. She left Skidmore, married her boyfriend, but soon after miscarried. As a parent, Justice Blackmun must have wanted to help his daughter regain her life, or any other women in similar situations. Courting Harry—a play produced by the History Theatre in St. Paul, Minnesota—presents Blackmun’s inner conflict as he asked for his family’s advice and, very notably, grew weary of his childhood best friend, Warren E. Burger. Though not without its problems, I believe the play delivers its essential messages well.

Courting Harry dedicates considerable amount of its playtime to portraying the slow deterioration of the friendship between the two Minnesotan Justices. Harry Blackmun and Warren E. Burger grew up together in Dayton’s Bluff, a working-class neighborhood in St. Paul. The two differed from each other since childhood: Burger stood taller, casted a quite aggressive aura, and fiercely aspired for power, while Blackmun projected his intellect with “Minnesota nice” and scholarly disposition. Yet, they remained best friends, and Burger’s influence on Blackmun’s appointment cannot be disputed. Later, as Justices on the Court, Burger wanted his Ivy League friend to champion his pompous stature, and Blackmun did so his first few years. But that was to change.

At the play’s crescendo moment, the Justice asks his female family members their opinions on abortion. Blackmun’s wife and daughters respond emotionally, and it leaves the Justice overwhelmed. Blackmun could either overlook the complications with which a lot of women are left, or author an opinion that will undoubtedly change the political-social dynamics of America. But none of these seem to matter to Blackmun. Although the play never explicitly expresses his actual concerns, it strongly suggests that his love for his little girl trumps any legal obligation he has sworn to follow.

Such humanistic portrayal not only places Blackmun on a higher pedestal as the protagonist, but it also idolizes him with very little qualification. It did not take long to notice the overwhelming political leaning of the audience with its cheers and boos. The actors actually said their lines with seemingly pre-orchestrated pauses for the audience’s reactions. Plus, the History Theatre announced its partnership with Planned Parenthood. Certain groups of people, given their beliefs and interest, may frequent a history theatre in St. Paul more so than others, but the production of the play should have strived for less partisan atmosphere. I went hoping to gain a more analytic insight into Blackmun’s role in Roe, like the tensions between Blackmun and the eight other Justices and his thoughts behind the opinion’s focus on women’s right to privacy. All I really took from the play were Blackmun’s inner struggles with his daughter and his childhood best friend, and it confirmed his automatic celebrity status among present liberals in his hometown.

While I almost always agree with the liberal Justices on Supreme Court cases and identify as a Democrat, and while I agree with Blackmun’s opinion of the Court on Roe, I am just uncomfortable with the liberals’ unfair portrayal of the conservatives and inclination toward self-aggrandizement. Sure, a play is just a play, and people pay to celebrate their culture. But its message can and should offer fodder for different ways of thinking; it should encourage people to cultivate complex views. Courting Harry simply fails to do so. It caters too much to the political leanings of the audience.

The American public continues to debate on Blackmun’s ruling in 1973, and no side is willing to back down. Actually, the conflict has exacerbated with growing partisanship. So instead of blocking out the opposition, recognizing it while respectfully asserting one’s own view may foster what America claims to be: a democratic society with diversity of thought. Unfortunately, that might never happen given today’s culture.

-Anna Lee


To the Victors Go the Histories

New York Senator William L. Marcy once said, “To the victors go the spoils.” In the recent production of Courting Harry at the History Theatre in Saint Paul, to the victors they went. Centered on the narrative of two local Minnesotans, Courting Harry tells the story of the rise of two Justices of the Supreme Court. Chief Justice Warren Burger and Associate Justice Harry Blackmun grew up together on the east side of St. Paul. Framed within the context of the primary sources that Blackmun left behind in the form of letters and memos, Courting Harry tells the story of two childhood friends who each took wildly different routes to their seats on the bench.

Chief Justice Burger, both on stage and in reality, looked the part. A graduate of the local William Mitchell College of Law in Saint Paul, President Eisenhower appointed Burger to the position of Assistant Attorney General in 1952. Fueled by his well-lauded charisma and social graces, Burger quickly rose up the judicial ladder and was pegged by Richard Nixon to replace Chief Justice Earl Warren in 1969. Blackmun, on the other hand, had the credentials, but lacked the charm. A graduate of Harvard Law School, he spent several years working for the Mayo Clinic in Minnesota before somewhat reluctantly accepting the nomination for a federal judgeship. In 1970, he was confirmed to the Supreme Court by a 94-0 vote.

Early in the play, the two Justices break the fourth wall by speaking directly to the audience. Justice Burger asks, “Who here knows that Blackmun wrote the opinion of the Court on Roe v. Wade?” Every hand in the theatre went up, accompanied by scattered applause and the occasional yell of support. The play, it seems, hardly informed the audience of anything it didn’t already know. In fact, at times, it appeared that the actors on stage were merely pandering to their captive audience, coaxing out every possible clap and cheer for decisions and ideas that were decades old. Ensemble portrayals of conservative Justices were politely chuckled at and their antics easily turned into caricature.

To the victors go the spoils, it seems, and to the victors go the histories. In discussing the performance with a group of my peers, we struggled with the notion of the mere existence of this play. Why, we asked, was this the topic being presented at the History Theatre? Surely there’s a different story we can tell that doesn’t center on two white men and only the most elite, well-documented legal minds of our time. Without a doubt, we thought, there must be another narrative that could have not only informed, but challenged the beliefs of those in the audience.

But herein lies the difficulty in presenting law outside of its natural home. In order to unlock the often esoteric language of the law, one must concede some narratives in favor of others. Instead of the intricacies and complexities of law, it seems that to be suitable for a wider audience, the larger, less refined stories make their way to the forefront. Courting Harry was certainly a theatrical achievement. The show was fast-paced, witty, and sharp, and the dialogue between the two Justices highlighted their likeable, if flawed characters. Each ensemble member played multiple roles and shifted tactfully between supporting the leads, fading neatly into the background as necessary. The sets were engaging, the narrative was both thorough and surprising, and the audience saw the friendship between Burger and Blackmun artfully grow and fade over the course of ninety minutes. As a piece of theater, it was successful. As a representation of the way law affects our lives, however, it may reveal something else.

I left the theater with an uncomfortable feeling. As one of the few young adults in the audience, I certainly was in the minority in terms of the crowd shuffling out. Ideologically, however, as evidenced by the ample clapping and cheering, we all aligned nicely with one another. I was comfortable with my place in the majority. I agreed with the decisions in the cases that the play highlighted, and while I didn’t clap and yell at every mention, I certainly agreed with those who did. It seems that the law that afternoon unified and solidified the faithful. Rather than presenting the right to privacy and its development through the Court as a debate to be framed in its own context, Courting Harry presented itself as a sort of victory march. Parading out the characters that would go on to establish the bastion of the decisions that the audience clearly championed , Courting Harry was a tribute, rather than analysis, an homage as opposed to a study.

Even as a supporter of the rights established by Griswold, Roe, and Casey, I left Courting Harry unsure if I believed that it had shaped how I saw law functioning in society today. Courting Harry was sponsored by two of the major law firms in the Twin Cities (Dorsey and Whitney &  Foley and Mansfield), as well as by the local chapter of Planned Parenthood. In history and in law, to the victors go the spoils. If you’re on the winning side, do you really need a parade?

Ross Bronfenbrenner