William J. Brennan Jr

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William J. Brennan Jr.

William J. Brennan, Jr. (1906-1997) served on the U.S. Supreme Court for 34 years, starting in 1956. During this time he consistently championed libertarian rulings and an expanded interpretation of the Bill of Rights and the Civil War amendments.

Born in New Jersey in 1906, a magna cum laude graduate of the University of Pennsylvania, William J. Brennan, Jr. was a scholarship student at Harvard's School of Law. His legal career had taken him to the New Jersey Supreme Court when he was nominated to the U.S. Supreme Court by President Dwight Eisenhower in 1956. After an initial recess appointment, the Democrat, Roman Catholic jurist was Senate-confirmed with the single dissenting vote of Joseph R. McCarthy of Wisconsin.

Professor Felix Frankfurter had always admonished his students not to be unduly swayed by professorial advocacy, that their guiding motto should be "think for yourself." Years thereafter, when he served with one of those students, William Brennan, Frankfurter asked whimsically whether it was really necessary for Brennan to have taken his former teacher's admonition so literally. Indeed, Justice Brennan struck out on his own, with a creativity and diligence that won him a "near great" rating by the Court's observers. But President Eisenhower, who had sent him to the Court, was only slightly less irked by and disenchanted with Brennan's evolving record than with Chief Justice Earl Warren's (whose opinions Brennan joined in most instances). When Eisenhower was asked later if he had made any mistakes while he had been president, he replied: "Yes, two and they are both sitting on the Supreme Court." "Both" referred to Warren and Brennan.

By inclination less of a judicial activist than Warren at the outset, and given to more careful, more communicatively-reasoned, expression, Brennan became a predictable member of the Court's libertarian wing. His abiding dedication to the freedoms of the First Amendment, notably those of speech and press, soon saw him assigned some of the leading libertarian opinions of the Warren Court era. Thus, he authored the tribunal's significant and unanimous judgment in The New York Times Libel Case of 1964, which established that a public official, in order to recover damages for a publication criticizing his official conduct, would have to show "actual malice" on the part of its publisher. Extolling the "uninhibited, robust, and wide-open" nature of debate on public issues, Brennan held that "libel can claim no talismanic immunity from onstitutional limitations, " that it must be "measured by standards that satisfy the First Amendment."

Justice Brennan, who served on the Court for three decades, continued to champion a generously expansive interpretation of the Bill of Rights and the Civil War amendments. In many ways he became the heir-apparent to Justice William O. Douglas's jurisprudence and his votes, especially after the latter's retirement from the bench in 1975. Together with Justice Thurgood Marshall, Brennan thus evolved into the leading libertarian activist on the (Warren) Burger court after 1969. In that role he continued to be the tribunal's foremost expert on, for example, the vexatious line between freedom of artistic expression and proscribable obscenity (predictably finding himself among the minority of four who dissented from the contentious 1973 decisions that accorded generous leeway to the states in judging what is obscene).

Probably the most devout member of the Court, Brennan's principled and consistent championing of the free exercise of religion and an absolute separation of church and state rendered him the high tribunal's leading anti-establishmentarian. Thus, his 70-page concurring opinion in Abington School District v. Schempp and Murray v. Curlett (1963) held unconstitutional state-mandated bible reading and reciting the Lord's Prayer in public schools. Likewise, his impassioned dissenting opinions in such accommodationist holdings as Roemer v. Maryland Public Works Board (1976) and Tilton v. Richardson (1971) represented his creed that under the Constitution the state must resolutely stay out of the church and the church must resolutely stay out of the state.

Even more prominently, and equally consistently, Justice Brennan became watchdog and advocate on the egalitarian front, particularly in matters of race and gender. Joined almost always by Justice Thurgood Marshall and usually, although not always, by Justices Byron R. White and Harry A. Blackman, he more often than not succeeded in finding a fifth vote to provide victory for claims of invidious discrimination. This position went to the extent of embracing racial quotas, giving rise to allegations of support of reverse discrimination. Hence, he marshalled Justice Powell's vote and his authorship of that part of the famed Bakke opinion (1978) that sanctioned affirmative action by constitutionalizing resort to considerations of race as a "plus" in educational admissions. And in 1979, in what may well be the most clear-cut case of judicial legislating on behalf of remedial/compensatory race-conscious policies, he spoke for a five-member majority in Steelworkers v. Weber and gained Justice Potter Stewart's support. This decision, in the face of precise and express statutory language and patent congressional intent to the contrary, sanctioned racial quotas in employment, overridingly on the basis of what Brennan frankly termed the "spirit" rather than the "letter" of title VII of the Civil Rights Act of 1964.

Perhaps, however, Justice Brennan will be best remembered for his precedent-shattering opinion for a six to two Court in Baker v. Carr in 1962. There, over lengthy, bitter dissenting opinions by Justices Frankfurter and Harlan, Brennan was joined by Chief Justice Warren and Justices Black, Douglas, Clark, and Stewart. The majority opinion held that aggrieved individuals had a constitutionally guaranteed right to come to the judicial branch to scrutinize allegedly discriminatory legislative apportionment by the states. The decision, which set into motion a revolution in electoral districting, was a fitting tribute to the judicial resourcefulness and perseverance of its self-effacing yet determined author. It was in keeping with his frequent warning that "the interest of the government is not that it shall win a case, but that Justice shall be done"

In Brown v. Hartlage (1982), Justice Brennan's ruling found that a state corrupt practices act violated the First Amendment's freedom of speech guarantee when it was applied to a political candidate's campaign promise. One of Brennan's last major decisions was in Texas v. Johnson (1989), which found a state statute criminalizing the desecration of religious objects was in violation of freedom of speech when it was used against a person who had set the American flag on fire as a political statement.

In 1990, Justice Brennan retired from the Supreme Court, as did his fellow Justice, Thurgood Marshall. Their departure left many court watchers anxious that the Supreme Court was losing two "liberal" justices, and would assume a more "conservative" tone. In particular, many lamented the loss of Justice Brennan's gift for seeing the Constitution as a living document, thus enabling him to foresee the impact of one decision on many other elements of constitutional law. In ABA Journal Laurence H. Tribe wrote, "Justice Brennan did not view cases in isolation from one another. Rather, he saw them as building materials with which a constitutional vision could be elaborated. He appreciated deeply the interconnectedness of the constitutional edifice." Also, many cited Justice Brennan's special capacity to rally his fellow justices behind a deicision, even in his later years when the Supreme Court assumed a more conservative tone.

After Brennan died in a nursing home in Arlington, Virginia, on July 24, 1997, Attorney General Janet Reno said he "stood up for people who had no voice. He devoted his long, rich life to helping the American justice system live up to its ideals." His intellect and charisma made him one of the most influential jurists in America's history.

Further Reading

In the wake of Justice Brennan's 1990 retirement, many periodicals profiled his career, and numerous biographies were written and planned. The February, 1991 ABA Journal gave a thorough overview of his career. Two books written shortly after Brennan's retirement were, Justice Brennan: The Great Conciliator (1995), by Hunter R. Clark, and Landmark Justice: The Influence of William J. Brennan on America's Communities (1991) by Charles Haar and Jerold Kayden. A major article is Stephen J. Friedman's "William J. Brennan" in Leon Friedman and Fred L. Israel, editors, The Justices of the United States Supreme Court, 1789-1978 (1980). See also Stephen J. Friedman, William J. Brennan, Jr.: An Affair with Freedom (1967), which includes an article and several appreciations published in the Harvard Law Review (1966). Justice Brennan's opinions offer a rich fare in themselves. Generally, see Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2d ed. (1985). □

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