Justice Harry A. Blackmun (1908 – 1999)

…speaks about his impressions of state institutions dating back to the Pennhurst case.
Video Source: Library of Congress

Interviewer: In the same term, there are a number of cases, actually, over the course of several terms that involve Pennhurst State School. The first one in the 1980 term was about the Developmentally Disabled Assistance and Bill of Rights Act and whether it created any sort of substantive right to treatment.

Then in OT 1981, a case called Youngberg vs Romeo, the question was whether a retarded inmate at Pennhurst had any right to care or treatment. And then several terms later in another case again called Pennhurst versus Halderman, the question was about the 11th Amendment and how it affected the right of a federal court to follow rules of state law. Do you remember this line of litigation and anything about this period?

Blackmun: Generally, yes, I do remember it and the difficulties that it occasioned for us at the time. I suppose I was one of those who was more or less in favor of expanding federal power through these cases and… but I was disturbed… It really went back for me personally to Jackson against Indiana, I'm not sure about that first name, about…

Interviewer: …1972 case…

Blackmun: Yes, where… Whether a court, any court, could put a person away for a while until he was cured and do so without going through formal commitment procedures. And I like the opinion in that case that is the result of it. We held that this improper that if a court was going to put a person aside that way, it had to do it through regular procedures to protect him. He just couldn't be placed in limbo that way. And I think this line of cases is more or less related to that and, hence, I was maybe influenced by the decision in that old case.

Interviewer: Did you have any contact with institutions for the mentally retarded?

Blackmun: Yes. When I was with Mayo's we did, of course. We had our own… Well, any large medical institution will run into cases that involve mental instability, mental retardation, or the various levels of insanity, I suppose.

Interviewer: And what was the quality of these institutions? I mean, maybe the way I should put the question is, early in your time on the court, you often had a lot of faith in these institutions, based on your experience at Mayo's. Pennhurst was clearly an institution that had a lot of problems, and I'm wondering whether you became more aggressive about your posture toward these institutions later in your time on the court.

Blackmun: Well, some of those institutions, of course, were just sad examples of placing people away and something that was unworthy of this country, at least as far as I was concerned. And I think we did a little bit in increasing standards for mental institutions. I used to visit a few of them and was appalled on occasion by what I saw.

Interviewer: What would you see?

Blackmun: Well, the first part, of course, is inescapable. One could see situations of patients with very obvious mental disturbance. You could just tell it by looking at them or by what they said to you. That is something that is just inherent in the cases.

But the thing that was disturbing was the care or lack of care that was given to a lot of these people. In effect, I saw situations where they were treated like animals, put in a cage and left there, and with all that followed from it. I didn't like it very well, and that isn't the way we treat human beings, or should.