The Legacy of Justice Brennan

My friend and colleague, Stephen Rohde, has written a book review of the long- awaited biography of one of my legal heroes, William Brennan.  In my opinion, Justice Brennan was one of the greatest Supreme Court justices in our history.  No justice since Brennan left the Court in 1990 (soon followed by Thurgood Marshall), has come anywhere close to having such an expansive view of civil liberties, civil rights and criminal justice, and, equally important, the strategic brilliance in fashioning majorities to support that view.  Steve's review was published in the Los Angeles Daily Journal, and he was kind enough to allow me to post it here:
 
 The Legacy of Justice William J. Brennan Jr.

“Justice Brennan: Liberal Champion,” by Seth Stern  and Stephen Wermiel,Houghton Mifflin Harcourt, Boston/New York 2010, 674 pages,  $35.00.

By Stephen F.  Rohde

On the occasion of his 91st birthday, less than three  months before his death in July 1997, Justice William J. Brennan Jr. wrote: “If  I have drawn one lesson in my 90 years, it is this:  'To strike another blow for  freedom allows a man to walk a little taller and raise his head a little higher.  And while he can, he must.’”

In their comprehensive new biography, “Justice Brennan:  Liberal Champion,” based on more than 60 recorded interviews with Brennan and  unprecedented access to his papers and law clerks, Seth Stern, reporter for the Congressional Quarterly, and Stephen Wermiel, Supreme Court reporter for the Wall Street Journal, conclude that Brennan is “perhaps the most influential justice of the entire twentieth century.”

“Brennan interpreted the Constitution expansively to broaden rights as well as create new ones for minorities, women, the poor, and  the press,” the authors observe.  Brennan himself would have taken exception to the notion that he “created new rights,” preferring to see his task as “finding” rights within the capacious terms of the Constitution, which for him had no “static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current  needs.”

According to Stern and Wermiel, Brennan’s decisions “helped open the doors of the country’s courthouses to citizens seeking redress  from their government and ensured that votes would count equally on Election  Day.”  While Brennan’s 34 years on the High Court would have a profound impact on a wide array of legal and constitutional issues, which the authors explore in clear and accessible terms, his most lasting legacy can be seen in the areas of racial equality, the First Amendment and the death penalty.  [Read more after the break]


Surveying Brennan’s decisions in the field of racial equality, the authors conclude that in the wake of Brown v. Board of Education, decided two years before he joined the Court, “perhaps no justice deserves more  credit for advancing the cause of the civil rights movement during the first  half of the 1960s than Brennan.” 
His opinions “helped protect the NAACP and sit-in demonstrators, curbed the use of libel suits as a method of intimidating the press, and providing greater access to appeals in the federal courts.”  In doing so, Brennan “sent a clear signal to lower courts that the law could no longer be employed as a bludgeon against the civil rights movement.”

Brennan’s landmark opinion in New York Times v. Sullivan had a lasting impact on freedom of speech and freedom of the  press.  In March 1960, a group of southern ministers and several celebrities signed a full page ad in the New York Times soliciting contributions for the “Committee to Defend Martin Luther King and the Struggle for Freedom in the  South.”  While the ad contained some minor factual errors and did  not identify any southern officials by name, L.B. Sullivan, a city commissioner  in Montgomery, Ala., took offense, filed a libel suit and won a $500,000 jury verdict.  Other similar suits were filed and the Times was facing  millions of dollars in potential damages, which not only threatened the paper’s very survival but the willingness of other media organizations to cover the civil rights movement itself.  Despite the fact that libelous statements had long been  considered beyond the protection of the First Amendment, all of the justices saw  the danger to freedom of the press if government officials could punish  newspapers through such huge verdicts, at least where there was no evidence of  intentional falsehoods.

Chief Justice Earl Warren assigned the opinion to Brennan, who generated eight drafts in the less than two months. The unanimous decision was announced on March 9, 1964, reversing the judgment and declaring “a  profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include  vehement, caustic, and sometimes unpleasantly sharp attacks on government and  public officials.”  According to Stern and Wermiel, Brennan’s opinion stands “as one of the strongest defenses of freedom of speech ever by the Court, recognizing that even erroneous and reputation-damaging speech are part of the  price the country must pay to facilitate the free exchange of ideas in a  democracy.”

Whereas Brennan’s interpretation of the Constitution in  the area of free speech and free press would carry the day while he was still on the Court, his equally principled view that the death penalty was unconstitutional
would not.  On April 2, 1976, Brennan told his colleagues that from that day forward he would never vote to sustain a death  sentence.  In a remarkable 1,841 cases upholding the death penalty,  Brennan, joined
each time by Justice Thurgood Marshall, would file a dissent, noting his view that “the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth amendments.”
Brennan’s thinking on the death penalty began to shift 14 years earlier when Justice Arthur Goldberg circulated a research memo that condemned as “barbaric and inhuman the deliberate institutionalized taking of  human life by the state.”  In 1971, he wrote a stinging dissent accusing the  majority of the Court of “an unguided, unbridled, unreviewable exercise of naked power.”  He came to see state killing as a violation of human dignity, the basic premise on which he built “everything under the Constitution.”  In June 1972, as  the Court ruled 5-4 in Furman v. Georgia that the death penalty was cruel and unusual punishment, Brennan may well have believed that his views had  prevailed, but a mere four years later, in Gregg v. Georgia, the Court reinstated the death penalty.  Dissenting, Brennan quoted Albert Camus:  “Justice of this kind is obviously no less shocking than the crime itself, and the new  'official’ murder, far from offering redress for the offense committed against  society, adds instead a second defilement to the first.”

Brennan will be remembered for developing an expansive view of the Constitution as a barrier against unwarranted government actions  that invade the province of individual rights.  In 1985, during the Reagan  administration, Attorney General Ed Meese insisted that the Constitution was bound by the “original intent” of the men who wrote it and criticized the  Supreme Court for “a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren  Court.”  Brennan responded at a symposium at Georgetown University arguing that attempting to “find legitimacy in fidelity” to the intentions of the Framers was “little more  than arrogance cloaked as humility.”  It is arrogant,” Brennan said, “to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary
questions.”  He insisted that “the ultimate question must be:  What do the words of the text mean in our time?” 

This impressive biography sets Brennan’s accomplishments  in the context of his personal history, his marriage and children, his service on the New Jersey Supreme Court, his relationship with his fellow justices and his
commitment to the rule of law.  In 1966, Chief Justice Warren offered this tribute to his close friend and
ally:  “In the entire history of the Court, it would be difficult to name another justice who wrote more important opinions in his first ten years than has he.  As a colleague, he leaves nothing to be desired. Friendly  and
buoyant in spirit, a prodigious worker and a master craftsman, he is a unifying influence on the bench and in the conference room.” 

Brennan would serve until 1991, completing 34 terms on  the Court.  Looking back, he considered his opinion in the little known case of Goldberg v. Kelly as perhaps the proudest achievement of his entire  tenure on the Court.  New  York had terminated welfare benefits to John Kelly, a disabled African-American homeless welfare recipient, without notice and an opportunity to be heard.  Brennan accumulated a majority of the Court to hold  that in such circumstances welfare recipients were entitled to written notice, a  hearing
before an impartial decision maker, the right to bring a lawyer and cross examine witnesses, and the right to a written ruling providing reasons for the decision. Brennan would later say that “Goldberg can be seen as  injecting passion into a system whose abstract rationality had led it  astray.”
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Stephen F. Rohde is a constitutional lawyer in Los  Angeles and author of American Words of Freedom and Freedom of  Assembly.