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
