Brennan, William Joseph, Jr. (b. Newark, N.J., 25 Apr. 1906; d. Arlington, Va., 24 July 1997; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1956–1990. Justice Brennan played a singular role in the constitutional revolution of the past two generations. The architect of many of the Warren Court's landmark decisions in the late 1950s and 1960s, he subsequently emerged as the leading proponent on the Burger and Rehnquist Courts of giving the Constitution a broad construction to promote individual liberty and equality. He continued up through his retirement in 1990 to engineer significant extensions of constitutional doctrine in some areas, while in others writing in passionate dissent against decisions he viewed as undermining the Warren Court's legacy. Brennan's judicial philosophy remains the subject of spirited controversy, but his supporters and critics agree that he ranks as one of the great justices in the nation's history.

Brennan, an Irish‐Catholic Democrat, was appointed to the Court by President Dwight D. Eisenhower, a Republican, in the midst of Eisenhower's 1956 reelection campaign. Although Eisenhower in later years viewed his selection of Brennan as one of his worst mistakes, Brennan's performance should not have come as a surprise. The second of eight children born to parents who had immigrated to the United States in the 1890s, Brennan grew up in a struggling middle‐class family and was a firsthand witness to suffering and social unrest in Newark, New Jersey. By his own account, the most influential person in Brennan's life was his father, a coal shoveler in a local brewery who later became a prominent labor leader and municipal reformer. The elder Brennan passed on his activist social philosophy to his son and inspired him to achieve excellence. William junior was an honors graduate of the Wharton School of the University of Pennsylvania and ranked high in his class at Harvard Law School, which he completed through scholarships and odd jobs after his father's death.

Brennan practiced law with a prominent New Jersey firm in the 1930s. He joined the army during World War II, served as a labor troubleshooter for the undersecretary of war, and was awarded the Legion of Merit. Brennan returned to private practice after the war, was a leader of the New Jersey court reform movement in the late 1940s, and within a three‐year period progressed through the state judiciary from the trial bench to the state supreme court. He advocated the rights of criminal defendants and, in speeches around the state, bluntly compared McCarthy‐era excesses to the Salem witch trials (see Communism and Cold War). (Senator McCarthy cast the lone dissenting vote when the Senate subsequently confirmed President Eisenhower's nomination of Brennan.)

Notwithstanding his junior rank, Brennan quickly became one of the Supreme Court's most influential members. He authored a forceful restatement of federal judicial supremacy in Cooper v. Aaron (1958), the Court's response to Southern “massive resistance” to desegregation orders. His opinion in Baker v. Carr (1962) opened the door to the “reapportionment revolution” of the 1960s and 1970s and the rule of “one person, one vote” in legislative districting; Chief Justice Earl Warren later described the decision as the most important of his tenure. And in New York Times Co. v. Sullivan (1964), Brennan led the Court in extending the protections of the First and Fourteenth Amendments to criticism of public officials, imposing sharp restrictions in libel cases to promote “the principle that debate on public issues should be uninhibited, robust, and wide‐open” (p. 270). Brennan repeated this pathbreaking performance in numerous other areas—authoring eminent opinions that, for example, restricted loyalty oaths and government regulation of pornography, recognized a broad freedom of association, supported curbs on prayer in public schools, and expanded the availability of habeas corpus and other federal judicial remedies for constitutional violations. (See Assembly and Association, Citizenship, Freedom of.)

Several factors account for Brennan's early prominence on the Court. He quickly joined what was oft‐described as the Court's “liberal” wing, which, after Justice Arthur Goldberg's appointment to the Court in 1962, commanded a solid majority receptive to expansive claims of individual rights and federal powers. At the same time, Brennan frequently took a more cautious approach than his liberal colleagues; indeed, an analysis of voting patterns shows he was squarely at the Warren Court's center and the justice least likely to be in dissent. Brennan tended more than others to avoid absolutes in favor of a “balancing” of competing interests, which in turn put him in a better position to forge majority consensus.

For example, Brennan in the Sullivan case rejected the view of Justices Hugo Black, William O. Douglas, and Arthur Goldberg that criticism of public officials' conduct should be absolutely immune from libel suits under the First Amendment, instead fashioning a privilege for such criticism that could be overcome through proof of “actual malice,” which he defined as deliberate or reckless disregard of the truth. Similarly, Brennan's opinion in Schmerber v. California (1966) held, over the dissents of Chief Justice Warren and Justices Black, Douglas, and Abe Fortas, that the Fifth Amendment's privilege against self‐incrimination applies only to “testimonial” or otherwise “communicative” evidence and thus does not prohibit the forcible extraction of blood samples from suspected drunk drivers.

Brennan's pivotal position also resulted from his superb personal, tactical, and intellectual abilities. Although he disparaged references to his role as a “coalition builder,” the historical record demonstrates otherwise. As Chief Justice Warren said of Brennan, “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” (Warren, “Mr. Justice Brennan,” Harvard Law Review 80 [November 1966]: 1–2). Brennan became Warren's closest colleague; the two met weekly before court conferences to discuss cases and plan strategy. Frequently, a majority would agree on an outcome while fragmenting on the appropriate analysis; in these situations Warren repeatedly turned to Brennan to build a decisional framework for the Court's result. Brennan's opinions were scholarly and closely reasoned; he displayed remarkable patience and skill in revising his drafts to accommodate his colleague's concerns and thereby reach a (sometimes fragile) majority consensus.

These abilities served Brennan well as the composition of the Court began to change at the end of the 1960s and into the 1970s. Although Brennan found himself in the minority with increasing frequency, he continued to play a significant leadership role on the Burger Court (and, to a lesser extent, on the Rehnquist Court until his retirement because of declining health in 1990). He authored several opinions recognizing broad remedies against municipalities and federal, state, and local officials for violations of federal law. Brennan was similarly influential in the First Amendment area. His opinions in Elrod v. Burns (1976) and Rutan v. Republican Party of Illinois (1990) sharply curtailed patronage practices as infringing the freedom of political association; Texas v. Johnson (1989) and United States v. Eichman (1990) invalidated, on identical 5‐to‐4 votes, laws that made it a crime to desecrate the U.S. flag. The opinions in the latter two cases, joined by two appointees of Ronald Reagan, were vintage Brennan, emphasizing in Johnson the “special place reserved for the flag in this Nation” while underscoring the rights of political protest: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents” (p. 420). Brennan similarly continued to attract occasional majorities to his views on the strict separation of church and state (see Religion).

Perhaps Brennan's greatest achievements in these later years were in the equal protection area. He successfully advocated heightened judicial scrutiny of gender‐based classifications in Craig v. Boren (1976) and became the Court's most vocal advocate of gender equality, openly supporting the proposed Equal Rights Amendment. He similarly played a major role in sustaining the constitutionality of affirmative action measures designed to counteract the societal effects of past racial and ethnic discrimination.

Nevertheless, Brennan frequently was in caustic dissent, particularly in cases involving those suspected or convicted of crime. His isolation from the Court became most pronounced on the death penalty, which Brennan (along with Justice Thurgood Marshall) believed in all instances to be cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments (see Capital Punishment). His dissents railed against what he viewed to be the brutality of the death penalty, the arbitrariness by which it was administered, and its use against minorities, youth, and the retarded.

Brennan's critics argue that, perhaps more than any other justice, he epitomized an unrestrained federal judiciary that had arrogated unto itself ultimate control over virtually every facet of daily life, thus demeaning the right of citizens to govern themselves through representative democracy (see Judicial Self‐Restraint). Judges like Brennan, the argument continues, frequently exercise this power on the basis of their own policy preferences rather than the language or original intent of any particular constitutional provision.

Brennan commented in the South Texas Law Review (1986) that such arguments are “little more than arrogance cloaked as humility.” He maintained that the Constitution, as amended by the Bill of Rights and the Reconstruction Era Amendments, is fundamentally a charter embodying “a sparkling vision of the supremacy of the human dignity of every individual”; the Court's duty is to protect this value as “transcendent, beyond the reach of temporary political majorities.” In doing so, the Court's interpretation and application of the Constitution's broadly worded guarantees must constantly evolve. “Current Justices read the Constitution in the only way that we can: as twentieth‐century Americans. … [T]he genius of the Constitution rests not in any 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” (pp. 433, 435–438).

One of the most notable examples of the way Brennan applied these principles, occasionally in conflict with justices who otherwise shared his philosophy, was in the area of government benefits. The Fifth and Fourteenth Amendments provide that a person's “property” cannot be deprived without due process of law. In the twentieth century a variety of relationships with government arose that in no sense could be described as traditional property—welfare, subsidies, tax exemptions, licenses, grants, and other forms of public benefits. Brennan's opinion in Goldberg v. Kelly (1970), which analogized welfare to property for constitutional purposes, launched what has been called the “modern procedural due process revolution” by requiring fair procedures for granting and revoking government benefits, even though such benefits are not themselves constitutionally required. Brennan authored other landmark opinions holding that such benefits cannot be administered in ways that would penalize the exercise of constitutional rights; for example, Shapiro v. Thompson (1969) held, over the dissents of Chief Justice Warren and Justice Black, that laws requiring lengthy residence as a condition of welfare assistance unconstitutionally burden citizens' rights of interstate movement.

Brennan's theory of an evolving Constitution is further illustrated by his efforts to curb government intrusions on individual “privacy”—a word nowhere mentioned in the Constitution. His opinion in Eisenstadt v. Baird (1972), which struck down a law making it a crime to give contraceptives to unmarried women, emphasized that the unwritten “right to privacy” protects “the decision whether to bear or beget a child” (p. 453). His reasoning provided the foundation for the Court's curb on abortion regulations the following year in Roe v. Wade (1973). Brennan also stressed privacy rights in his dissents from court decisions upholding increasingly sophisticated police investigative techniques, periodically invoking the horrors of the totalitarian technological society portrayed in George Orwell's 1984.

A leading advocate of a strong federal judiciary, Brennan nevertheless urged others to move even further in protecting individual rights. His opinion in Katzenbach v. Morgan (1966) recognized a broad congressional authority under section 5 of the Fourteenth Amendment to extend constitutional guarantees beyond the lines drawn in court decisions. United Steelworkers v. Weber (1979) upheld voluntary affirmative action programs in the private sector. And as he increasingly found himself in dissent, Brennan in the mid‐1970s began calling on state courts to “step into the breach” by interpreting their own state constitutions more expansively than the federal Constitution was currently being construed. In opinions, articles, and speeches he urged, with increasing success, that state courts should “thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms” (Brennan, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 [January 1977]: 489, 503). It is an ironic comment on the man and his changing times that Brennan, a former state supreme court justice who cemented his place in history as an architect of federal judicial supremacy, emerged late in his career as a leading advocate of independent state judiciaries (see State Constitutions and Individual Rights).

Bibliography

Hunter R. Clark , Justice Brennan: The Great Conciliator (1995).
Hunter R. Clark , In Memoriam: William J. Brennan, Jr., Harvard Law Review 111 (November 1997): 1–50.
Peter Irons , Brennan vs. Rehnquist: The Battle for the Constitution (1994).
E. Joshua Rosenkranz and Bernard Schwartz, eds., Reason and Passion: Justice Brennan's Enduring Influence (1997).
Bernard Schwartz , Super Chief: Earl Warren and His Supreme Court—A Judicial Biography (1983).

Charles G. Curtis, Jr., and and Shirley S. Abrahamson

BRENNAN, WILLIAM JOSEPH, JR.

William Joseph Brennan Jr. was the first Roman Catholic appointed to the Supreme Court; he served as associate justice of the Court from 1956 to 1990. His unshakable belief in the Constitution as the guardian of individual rights and liberties garnered both respect and criticism.

Brennan was born April 25, 1906, in Newark, New Jersey. He was the second of eight children of William Joseph Brennan and Agnes McDermott Brennan, Irish immigrants who settled in Newark in the 1890s. His father worked as a coal shoveler in a brewery and, according to Brennan, was the most influential person in Brennan's life. He was also a labor leader and municipal reformer who imbued Brennan with a profound social conscience and an affinity for activism.

Brennan received his early education in Newark public schools, and attended the Wharton School of Finance and Commerce, at the University of Pennsylvania, where he received his bachelor of science degree, cum laude, in 1928. He earned a scholarship to Harvard University Law School, where he studied under felix frankfurter, who would later be his colleague on the Supreme Court. Brennan graduated near the top of his class in 1931.

He began his legal career in 1932 with the Newark law firm of Pitney, Hardin, and Skinner. The firm later added Brennan as a partner and became Pitney, Hardin, Ward, and Brennan. He specialized in labor law and showed a unique talent for successfully negotiating employer-employee disputes. During world war ii, Brennan served in the U.S. Army and eventually became the labor branch chief, Civilian Personnel Division of Army Ordnance. He rose to the rank of colonel and was awarded the Legion of Merit for services to the Army and Army Air Forces procurement programs.

After his army service, Brennan returned to private practice, counseling large manufacturing corporations on labor matters. In 1949, he was tapped by New Jersey's Republican governor to serve on the state's superior court. Assigned to the appellate division, he distinguished himself by implementing reforms that relieved congestion in the court calendar. He was appointed to the New Jersey Supreme Court, and took his seat on March 24, 1952. While there, he helped institute a pretrial conference system that shortened and simplified trials and encouraged settlements, resulting in fewer and speedier trials.

Brennan had served only four years on the New Jersey Supreme Court when, to the surprise of everyone, including Brennan, President dwight d. eisenhower nominated him to serve on the U.S. Supreme Court. Eisenhower, a Republican, would later regard his appointment of the liberal Democrat as one of his worst mistakes, along with his earlier appointment of Chief Justice earl warren. Together, Brennan and Warren led the Court into an unprecedented era of judicial activism that was anathema to conservatives like Eisenhower.

Brennan quickly established himself as a staunch supporter of the rights and liberties guaranteed by the Constitution. He insisted that the bill of rights applies to all U.S. citizens, whether of the lowest or the highest stature. Brennan invited controversy with his view that the Constitution's guarantees must be constantly evolving. Said Brennan, "The genius of the Constitution rests not in any 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."

"Law cannot stand apart from the social changes around it."
—William Brennan Jr.

Brennan's broad interpretation of the Constitution put him at odds with more conservative court members who construe the Constitution as narrowly as possible and attempted to ascertain the original intent of the drafters. Conservatives believe that if a right or freedom is not clearly conferred by the Constitution or by judicial precedent, it is not the job of the Court

to try to find it there. They place the burden on the individual to show that the right or protection sought exists. Conversely, like-minded liberals (and Brennan was one) approach a case by asking whether anything in the Bill of Rights explicitly prevents the Court from finding that the right or protection exists, and they look to the government to prove that the right does not exist. Ironically, when a case involves the use of government power, the opposing groups tend to adopt each other's philosophy: conservatives ask whether anything in the law prevents the exercise of the power, and liberals ask whether the power is explicitly allowed by the Constitution or some other statute.

In spite of his single-minded determination to read the Constitution as broadly as possible, Brennan often acted as a mediator between the liberal and conservative wings of the Court. A warm and charming man who was universally well liked, he used his formidable intellectual and technical skills in tandem with his innate diplomacy to build coalitions on some of the most divisive issues of the time. "You cannot dislike this man on a personal level, no matter how destructive he's been to the values you hold dear," declared Charles J. Cooper, assistant attorney general under President ronald reagan and an ideological archenemy of Brennan. Brennan was respected by friends and adversaries alike. In fact, although he was a lifelong Democrat, his appointments to the judiciary were recommended by conservative Republicans.

It is impossible to overstate the effect Brennan had on the law of the land from 1960 to 1990. He was the architect of pivotal decisions that shaped U.S. life during those years, including Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, a 1972 decision that struck down a law prohibiting the distribution of contraceptives to unmarried women. Brennan recognized a constitutional "right to privacy" protecting "the decision whether to bear or beget a child." His reasoning in Eisenstadt became the foundation for roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that removed many barriers to legal abortions.

Early in his career Brennan wrote the majority opinion in baker v. carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), which allowed federal courts to hear challenges to legislative apportionment and paved the way for later Supreme Court cases establishing the concept of one person, one vote. In new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), Brennan wrote that the first amendment protects the press from libel suits brought by public officials, unless actual malice is proved. He extended the fifth amendment right against self-incrimination to prohibit mandatory registration of Communist party members in Albertson v. Subversive Activities Control Board (382 U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d 165 [1965]).

Brennan found that the Constitution prohibits unequal treatment based on race, age, or gender, in a number of decisions, including in re win ship (establishing use of the reasonable doubt standard for juveniles); frontiero v. richardson (extending constitutional scrutiny to gender-based classifications); and Craig v. Boren (declaring that gender-based classifications are unconstitutional unless they are substantially related to the achievement of an important government objective) (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]; Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]; and Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 [1976]).

Brennan was a strong believer that affirmative action was a way to remedy past discrimination, and he wrote numerous opinions on the subject. In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984), the Court held that it is lawful for employers to adopt voluntary affirmative action programs that are race conscious. Brennan wrote the opinion that upheld limited preferential treatment on the job for women and minorities in Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), and found in United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987), that a one-black-for-one-white promotions quota did not violate the Constitution. Finally, in one of his last opinions on affirmative action, Brennan wrote that the Constitution permits preferential treatment of minorities in the awarding of FCC broadcast licenses (Metro Broadcasting v. FCC, 497 U.S. 547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 [1990]).

Brennan was an adamant defender of free expression even for the most reprehensible words or acts. In texas v. johnson (491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]) and in United States v. Eichman (496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 [1990]), he wrote opinions invalidating statutes that banned flag desecration, on the grounds that they violated the First Amendment. Although recognizing the "special place reserved for the flag in this Nation," he stated, "we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents" (Johnson).

He was also an ardent defender of the rights of children, declaring that we must teach young people "that our Constitution is a living reality, not parchment preserved under glass." He was appalled by cases in which the Court seemed to hold that the Bill of Rights does not apply to schoolchildren, and wrote in one dissent that the majority's decision had given school officials the license to act as "thought police" and taught the students "to discount important principles of our government as mere platitudes" (Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 285, 290, 108 S. Ct. 562, 577, 580, 98 L. Ed. 2d 592 [1988]).

Brennan earned the highest praise as well as the harshest criticism from his opinions in cases involving the rights of the accused. He stead-fastly opposed the use of capital punishment, labeling it state-sanctioned killing, and in one of his final decisions on the Court, he voted against an execution by the state of Virginia. Taking human life, he said, "is God's work, not man's." When that statement was dismissed as mere sentimentality, he replied, "The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity…. The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded." Brennan's critics pointed out that his opposition to the death penalty did not seem in harmony with his support of women's right to abortion, which some consider "state-sanctioned killing."

Brennan passionately defended the protections afforded by the Fourth Amendment's prohibition of unreasonable searches and seizures. His interpretation of the amendment helped establish the exclusionary rule, which holds that any evidence obtained illegally is tainted and cannot be used against the accused. During the 1980s, the Supreme Court recognized a growing number of exceptions to the

rule, prompting Brennan to redouble his efforts to bolster its strength. His advocacy of the rights of criminal defendants brought him sharp criticism, particularly from the media, which often portrayed him as a libertarian who supported the rights of criminals while ignoring those of victims. In a radio interview in 1987, Brennan became uncharacteristically agitated when asked, "Why do you let some of those creeps go? They do such bad things, and on a technicality, you let them go." Brennan replied sharply,

You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They're not. We are what we are because we have those guarantees, and this Court exists to see that they are faithfully enforced. These guarantees have to be sustained—even though the immediate result is to help out some very unpleasant person. They're there to protect all of us.

Citing advancing age and health concerns, Brennan retired from the Court in July 1990, after 34 years as an associate justice. He was replaced by Associate Justice david h. souter. Although he eventually slowed his pace considerably, he continued to be sought as a speaker and used every opportunity to carry on his campaign for individual rights and liberties.

During his tenure on the Supreme Court, Brennan wrote almost 1,600 opinions, many of which have had a significant impact on the American justice system. In 1995, as a tribute to Brennan's legacy, a number of former law clerks, along with family and friends created the Brennan Center. The center, which is housed at New York University's School of Law, pursues an ambitious agenda of litigation, teaching, research, and advocacy in public policy areas, including democracy, poverty, and criminal justice. Brennan died on July 24, 1997, in Arlington, Virginia.

further readings

Brennan Center for Justice. Available online at <www.brennancenter.org> (accessed June 19, 2003).

cross-references

Freedom of the Press; Freedom of Speech; Judicial Review; Warren Court.

William Joseph Brennan, Jr. 1906–97, associate justice of the U.S. Supreme Court (1956–90), b. Newark, N.J. After receiving his law degree from Harvard, he practiced law in Newark. He served as a New Jersey superior court judge (1949–50), appellate division judge (1950–52), and state supreme court justice (1952–56). In 1956 President Eisenhower appointed him to succeed Sherman Minton on the Supreme Court. Brennan became noted as a supporter of individual liberties and guarantees of justice to the poor and as an effective deal-maker and strategist in the Warren court. In the last two decades of his long service, he was a liberal stalwart among increasingly conservative colleagues; many of his 1,360 opinions were dissents.

Bibliography: See biography by S. Stern and S. Wermiel (2010).