William J. Brennan: Children, This Is What a Progressive Justice Looked Like

>I first laid eyes on William J. Brennan in late 1991, when he came back to the Supreme Court to move the admission of a family member to the Court's Bar. Brennan had been off the Court for a year.  He'd been slowed by multiple strokes and had to be helped to his feet. But it didn't matter--the moment I saw him, I expected him to leap onto a chair and begin singing "Frosted Lucky Charms, they're magically delicious!"


Something about this dapper little man charmed both friend and foe alike. On that day in 1991, Chief Justice William H. Rehnquist greeted Brennan's return to the Court with tears in his eyes, even though much of Brennan's latter career had been devoted to blocking Rehnquist's plans for conservative ascendancy. 

There will be few tears in conservative eyes at Brennan's absence (he died in 1997) when the Supreme Court takes the bench Monday for its October 2010 term. To conservatives, Brennan was a sinister smiling Svengali who corrupted conservatives like Harry Blackmun.  Progressives, by contrast, still mourn the intellectual powerhouse behind most of the Court's finest hours during the 35 of his service as a Justice.  

A generation has come to maturity that has never, in fact, seen a true liberal Justice.  Moderate figures like Stephen Breyer and Ruth Bader Ginsburg are now the Court's "liberal wing." Those who want to understand the glory and the contradictions of a true progressive jurist should buy the first full-length biography, Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel.

Brennan's opinions are the basis of many areas not only of American law but of our very culture. His apportionment decisions--requiring districts drawn on the rule of "one person, one vote"-- have brought increased democracy to state legislatures; his criminal justice decisions still govern the procedures followed by every law enforcement agency in the country; and his opinions on free speech and press--most notably New York Times v. Sullivan--are the very basis of American press freedom. When he died in 1997, I wrote in The Washington Post that his grave at Arlington might fittingly bear the same epitaph as Christopher Wren's in London--Lector, si monumentam requiris, circumspice ("Reader, if you seek his memorial, look around you").  

In this long-awaited biography (co-author Wermiel was designated by Brennan before his death for exclusive access to his papers), Stern and Wermiel take us behind the leprechaun image to show the pain and ambivalence that marked this outwardly joyous Justice's career.  They do not deny the power of Brennan's tiny presence: "Displaying the physical intimacy of a professional politician, he became famous for his handshake, known as the 'Brennan Grip,'" they write. Probably no one else alive could have greeted the formidable Justice John Marshall Harlan by throwing an arm over his shoulders and saying, "Hiya, Johnny Boy, how're you doing?" 

But as the authors note, the smiling exterior disguised an intensely private inner man. "He never told you anything about himself," one of his friends from private law practice in New Jersey recalled. His private life was filled with heartache, most particularly including the prolonged alcoholism and long painful illness of his first wife Marjory. He never amassed a personal fortune, and could not afford a home in Washington until he had served on the Court for more than 25 years. He succeeded in marshalling majorities for his opinions throughout his tenure, but felt growing isolation and frustration in his later years on the bench.

Privately, too, Brennan was far from the liberal ideologue his foes imagined. Certainly the idea of an "activist judge" who arrived in his chambers in 1956 with a liberal agenda has no foundation in fact. Brennan was a solid Chamber of Commerce Republican lawyer.  A champion of free expression, he despised sexually explicit publications. A protector of press freedom, he reviled reporters. A solid pro-choice vote, he was appalled at the very idea of abortion.  He publicly opposed McCarthyism even before his appointment, but caved ignominiously when the red-baiters targeted one of his clerks. He was a staunch foe of segregation and racism, but hired his first African American clerk only in his last term (his sudden retirement deprived the young woman of her chance to serve). His decisions supported gender equality, but he was uncomfortable with professional women, had to be in essence blackmailed before he would hire a female clerk, and was so grudging in his greeting of the Court's first female Justice, Sandra Day O'Connor, that he gave up any chance of influencing her vote.

Stern and Wermiel record that, despite his stellar success in practice, state jurisprudence, and on the Court, Brennan never lost the anxious sense of being an outsider. The son of an Irish immigrant, he served for most of his career as the Court's only Catholic. (It's a mark of how society has changed that today Catholics form the Court's establishment--there are six, appointed by presidents of both parties.) It was perhaps this sensitivity that fueled his sympathy for outsiders who came before the Court. But I sense that it was also his very skill at representing clients that led to his evolution into what the authors call a liberal champion. Practicing lawyers care deeply for facts; they must deal not only with doctrinal results but with the consequences for real parties.

Certainly the durability of Brennan's legacy owes more to his lawyerly skills than to ideology.  Conservatives who frothed to overturn his landmark cases have shrunk from doing so when they had the chance--opinions like New York Times v. Sullivan and Baker v. Carr may or may not be "right," but they are well crafted so that lawyers and lower courts can apply them to new facts. Casting them aside for the intemperate generalities of a Scalia or a Thomas is often, even for their conservative allies, an unappealing prospect. 

As we look back on his tenure, even hardened liberals have to realize that there will never be another William J. Brennan. It is not only that such large spirits are rare; it is that the historical moment of that kind of liberalism has passed. Brennan took to the bench in the midst of a prolonged constitutional crisis over desegregation. A significant number of states were tightly run apartheid regimes, with all-white electorates and kangaroo courts. As a Justice, Brennan was eager to uphold Congress's commerce and civil-rights enforcement powers, favored federal jurisdiction over lawsuits by individuals against government, and showed little solicitude for state legislatures and courts.   

But these seem more like a practical lawyer's responses to unique circumstances than a well-formulated nationalistic jurisprudence. Brennan's own philosophy bore little relation to any "constitutional theory" put forth by my colleagues in academic law. The closest he came to enunciating a vision was his insistence that American law must embody a notion he called "human dignity." Scholars like Raoul Berger and Leonard Levy scorned this idea because it is not in the Constitution's text. But Brennan defended it as arising out of the needs of a constitutional system. "If the interaction of this justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve," he said in 1986.

It's a simple idea: The individual, rich or poor, powerful or weak, is worthy of respect from government. That value lives on, and we can hope for Justices who will carry it forward in a way that responds to today's challenges as creatively as Brennan responded to his. Stern and Wermiel write that in his speeches Brennan frequently drew on the final scene of Cathleen ní Houlihan, the Irish nationalist play by W.B. Yeats, in which the soul of Ireland visits a family hearth in the guise of a old woman.  After she walks away, another guest arrives and is asked whether he saw an old woman on the path.  "I did not," he said. "But I saw a young girl, and she had the walk of a queen."

We live in a grim time: prisoners with hoods, barbed wire and camps, ever-expanding surveillance, seemingly endless war against enemies within and without. Powerful voices cry for mass deportations, stripping of citizenship, even religious war and precious view voices answer them. Yeats would recognize our time: the best lack all conviction while the worst are full of passionate intensity.  

Yet the idea of dignity is as hard to kill as a Brennan opinion. She can make a "liberal" out of anyone who is willing to listen with open mind to the stories of the outsider. We can't know when or how, but her hour will come round again. 
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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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