Justice Brennan

Book by Seth Stern and Stephen Wermiel; Boston/New York, Houghton Mifflin Harcourt, 2010, 674 pp.

If you are a political progressive who did not live through the 1960s, it may surprise you to hear that for a few years during that decade, the Supreme Court had a rock-solid liberal majority on most issues. The liberal coalition fell apart almost as soon as Richard Nixon was elected in 1968. Thanks to a confluence of retirements, resignations, and death from 1969 through 1971, Nixon replaced four Justices, changing the complexion of that institution overnight and ushering in a wave of judicial conservatism that continues to this day.

One of the Justices who comprised that liberal majority was William J. Brennan, Jr., the subject of a solid new biography by Seth Stern and Stephen Wermiel. Brennan remains the judicial hero of legal progressives and liberals who want the Court to expansively interpret the Constitution to protect the rights of dissenters and racial minorities, and to preserve individual privacy and due process. Brennan was not only one of the intellectual leaders of the Court's liberal wing, through the force of his persuasive personality, he knew how to build 5-4 majorities, famously showing his young law clerks the five fingers of his outstretched hand in emphasizing that the "rule of five" was the most important rule in constitutional law. And, in crafting decisions, he knew how to drop footnotes or language in his analysis that he could exploit years later in further expanding the law in other areas.

Brennan served on the Court for 34 years, one of the longest tenures in Supreme Court history. He joined the Court when it was in the process of striking down racial discrimination in education and other governmental institutions. He left the Court during its shift to the right, when Presidents Reagan and Bush Sr. grew loyal to the right-wing Federalist Society, which wants to roll back the liberal Warren Court precedents.

Serving on the Court from 1956 through 1990, Brennan was appointed by a Republican and replaced by a Republican. Court appointments are often unpredictable. They used to be, anyway. President Eisenhower was said to regret the Brennan appointment once Brennan staked out liberal positions on the Court. To everyone's surprise, Brennan's replacement, David Souter, turned out to be the heir to the Brennan legacy, prompting Republican presidents to appoint more reliable conservatives ever since, including reactionaries like Clarence Thomas and Samuel Alito. The sad irony is that while Republicans focus on the federal courts and insist on appointing so-called "strict constructionist" conservatives, Democrats are not responding in kind. While Presidents Clinton and Obama have appointed qualified liberals to the Court, they do not share Brennan's broad constitutional vision of a living Constitution. The most we can hope for in recent Democratic appointees is that they adhere to the precedents that preserve individual liberties. Brennan went beyond any technocratic approach to decisionmaking. He made law.

The authors write, "Little in his career as a corporate labor lawyer and New Jersey state judge suggested that William Brennan would emerge as perhaps the most influential justice of the entire twentieth century. No one could have predicted that Brennan would become the most forceful and effective liberal ever to serve on the Court. In fact, few if any of the eight men who served as president during his tenure could claim to have had such a wide-ranging and lasting impact. Brennan interpreted the Constitution expansively to broaden rights as well as create new ones for minorities, women, the poor, and the press. His decisions helped open the doors of the country's courthouses to citizens seeking redress from their government and ensured that their votes would count equally on Election Day. Behind the scenes, he quietly helped craft a constitutional right to privacy, including access to abortion, and bolstered the rights of criminal defendants. In the process, he came to embody an assertive vision for the courts in which judges aggressively tackled the nation's most complicated and divisive social problems."

It's worth considering how only five Supreme Court Justices can alter domestic policy against majoritarian preferences. But that is a necessary consequence of constitutional decisionmaking. It also explains mainstream society's fierce opposition to the Court's rulings against racial discrimination and in favor of abortion rights. The upside is that the Supreme Court is the only branch of government that has to provide a written explanation for its decisions. It cannot get away with bland pronouncements. The Court has to adhere to the facts of a particular case and rely on legal precedents to support its reasoning. It's easy to call shenanigans on the Supreme Court when it issues a badly-reasoned opinion. For that reason entire books have been published about individual cases. Yet, in many ways, the Supreme Court still operates behind closed doors. Any book about the Court notes how the Justices meet weekly in a closed conference room to discuss the current crop of cases and how they are going to decide them. The Justices do not reveal what they discussed during these meetings and their law clerks are not allowed in the room. When a Justice dies and his or her papers are donated to a law school or some other public institution, legal scholars salivate over the prospect of reading the Justice's personal papers that may provide insight into cases decided 30 years ago.

Behind the Scenes

Most Supreme Court biographies over the last several decades have benefitted from access to these private papers. This is one of those books. While Justices do not shy away from issuing dissenting opinions, the reader has no way of knowing the often difficult process that produced the final result. The private papers often shed light on the internal deliberations, in-fighting, horse-trading, and log-rolling that transpires behind the scenes. In order to gain a five-vote majority, the Justice assigned to the opinion may have to delete or revise sections of the opinion to mollify a fence-sitting Justice. This is catnip for Supreme Court junkies, who love to read about the personality conflicts and intellectual bloodbaths that the Justices try to paper over in issuing formal rulings. These backstories sometimes make the Supreme Court look more like Congress than the ivory tower institution that the Justices wish to portray. Brennan gave his biographers access to his private "term histories" that summarized the Court's business and the authors also had access to draft opinions and internal memoranda among the Justices. Books like this are a far cry from the dry judicial biographies of yesteryear.

Brennan met regularly with Chief Justice Earl Warren in private and he guided the other Justices who wrote the opinions that define American life today, including Roe v. Wade, the 1973 ruling that guaranteed the right to abortion. Brennan is also the Justice who preserved the right to criticize public officials without fear of a libel lawsuit, ruling that only falsehoods made with actual malice fall outside the First Amendment's protection. As much as anything else, the New York Times v. Sullivan ruling in 1964 was responsible for the aggressive investigative journalism that followed, including the Watergate coverage and other efforts to expose government malfeasance. Brennan's language in that decision could easily serve as the subtitle for the First Amendment's speech protections: "[W]e consider this case against the background of 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."

The authors do not really tell us what made Brennan tick. While Brennan made himself available for interviews with the authors and gave them access to his private papers, there is no extended psychoanalysis about Brennan's worldviews that led him to lead the revolution in expanding individual rights. The best explanation for Brennan's constitutional philosophy is that he was one of the rare men of his generation who genuinely sympathized with the underdog and distrusted governmental authority, even in times of war and national unrest. While Brennan was not a political radical by any means, his rulings often sided with radicals, such as Gregory Johnson, who burned the American flag at the 1984 Republican National Convention. Brennan's majority decision in Texas v. Johnson (1989) held that laws prohibiting flag desecration violate the First Amendment. While as an attorney and judge, Brennan certainly did not starve, he read into the Due Process Clause a requirement that the government must provide the poor with certain procedural protections before it revokes their welfare benefits.

Yet Brennan's jurisprudence did not always reflect his private views. While he championed the rights of women and made it more difficult for the government to discriminate against them, he was quite hesitant to hire female law clerks, and nervous about female Supreme Court Justices. While he stood firm against government harassment of leftists, in the mid-1960s he actually revoked his offer of a coveted clerkship to a standout law school graduate because of his leftist activism.

Supreme Court Justices As Political Scientists

The polarized political climate today almost guarantees that a William Brennan would not be nominated to the Court anytime soon. These days, Supreme Court appointments turn into an extended national dialogue over the Court's direction and the nominee's background. While President Obama is a former constitutional law professor who probably embraced the opportunity to appoint Supreme Court Justices prior to the 2008 election, his choices, Sonia Sotomayor and Elena Kagan, are center-liberals, not Justices in the Brennan mold. These days, modern presidents cannot expend too much political capital on judicial appointments that will tie up the U.S. Senate and possibly lead to filibuster.

That's too bad. The values expressed by Justice Brennan are worth fighting for. The authors suggest that this would be a very different country if Brennan's majority decisions were instead dissents. Had Justices Scalia, Thomas, Alito, and Roberts (the conservative faction on today's Supreme Court) held the majority during the Brennan years, it is quite likely the Bill of Rights would be as flaccid as it was prior to FDR's appointments in the 1930s. Yet, had the conservatives reigned in the Warren Court years, their rulings would not technically be incorrect, at least in terms of the text of the Constitution.

The reason for this is that there is no right or wrong way to interpret the Constitution. That document does not express a preference for strict constructionist or expansive liberal philosophy. The Constitution is simply a set of rules and principles, many of them vague and open-ended and subject to interpretation. The Justices certainly review the language of the Constitution in deciding cases, but they also make decisions in light of their own view of the Constitution's purpose and how the relevant provisions—be it the First Amendment, the Fourth Amendment's protections against unreasonable search and seizure, or the Due Process Clause—play against competing constitutional values. In my view, Supreme Court Justices are glorified political scientists. This is not a bad thing. It's the only way they can do their job.

By way of illustration, consider the First Amendment. The free speech and assembly clauses of the First Amendment read as follows: "Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Yet, these few words have produced volumes of case law as the courts have grappled with how this language applies to every conceivable factual situation, from incitement to riot to whistleblowing in government offices to the legality of campaign contributions to street corner protests.

Since the First Amendment is written in absolute language and the courts decided a long time ago that society could not function if speech rights trumped everything else, judges deal with this by treating the First Amendment as an aspirational statement. In real-life application, the First Amendment is considered in the context of competing interests: the interest in someone speaking out weighed against the interest of the government in maintaining order and stability.

This balancing test applies in every First Amendment scenario that I can think of. In some instances, the government interest in order and stability wins every time, such as when someone is arrested for insider trading at the stock exchange or conspiracy to commit murder. Technically, the insider trading scheme involves speech and the conspiracy involves an association with other people. But society does not want insider trading or murders and the value of that speech or association is quite low, so the First Amendment has no application. At the other end of the spectrum, the government has almost no authority to tell the media what to write or to shut down the newspapers because of what the media is reporting. A rare exception to these "prior restraints" is national security.

The grey area is where the First Amendment gets sticky. It's the grey areas where judges get to impose their own values. Conservatives like to accuse liberal judges of imposing their will on society. But all judges have to do this. It's the only way to interpret the First Amendment, and all the other provisions of the Bill of Rights, for that matter, each of which speak in generalities.

If judges interpret the Bill of Rights in light of various balancing tests in which the courts weigh individual liberties against the government's interest in stability and order, then the only way a judge can do her job is to play the role of political scientist. This is because the judge has to decide how society should function and how it shouldn't.

A well-known example of this was Texas v. Johnson, one of Brennan's final First Amendment rulings. Through a bare 5-4 majority, the Court ruled that laws against political flag burning violate the First Amendment. You might think this would be an easy case. Why should the government care if someone wants to burn the flag, so long as no one else gets hurt? Yet this 5-4 decision produced a passionate dissenting opinion about patriotism and old-fashioned values surrounding respect for the flag and the veterans who died in its name. Another example is any number of the due process cases that came before the Supreme Court in the 1970s, when the Court began protecting the rights of the individual against arbitrary governmental action. These cases necessarily required the Court to apply complicated balancing tests in resolving when the interests of governmental efficiency outweighed the rights of individuals who relied on governmental benefits. There are no right answers to these questions. It all depends on which Justices are sitting on the Court when these issues are brought to their attention.

Brennan's Influence

As a survey of American legal history from the 1950s through the early 1990s, this book highlights the difference that one Supreme Court Justice can make, and why it matters when the presidential campaigns degenerate into trivial issues. Maybe the president cannot significantly alter the U.S. economic system or foreign policy, but the consequences of one or two Supreme Court appointments can last for decades.

The authors do not mention this, but a good example of Brennan's longlasting influence surfaces in the current crop of same-sex marriage cases. In 1973, Brennan wrote the majority opinion in Department of Agriculture v. Moreno, also known as the "hippie food stamps case," holding that Congress could not exempt from that entitlement any recipients who were not living together. Recognizing this exemption as a thinly-veiled attack against hippie communes, Brennan held that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Typical Brennan language. In 1996, six years after Brennan's retirement, a very different Supreme Court adopted that language in striking down a public referendum in Colorado that made it illegal to pass laws protecting gays and lesbians from discrimination. That case, Romer v. Evans, is now the predicate for modern court rulings protecting the right of same-sex marriage. Brennan never had the opportunity to rule on same-sex marriage, but, consistent with his practice in other cases, he must have known that his language in the hippie food stamps case would survive his death and protect some other unpopular social group. Is there any greater legacy for a Supreme Court Justice?

Z

Stephen Bergstein is a constitutional lawyer living in upstate New York.