Brennan, William J., Jr. (1906–)

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William Joseph Brennan, Jr., was appointed an Associate Justice of the United States Supreme Court in October 1956. He quickly became, in both an intellectual and statistical sense, the center of gravity of what commentators have come to call the warren court, dissenting less than any other Justice, and fashioning many of that Court's most important opinions.

He came to the Court with more past judicial experience than any of his colleagues. For seven years he had been a New Jersey state judge, beginning his career at the trial level and rapidly advancing to the New Jersey Supreme Court. He had also been prominent in the movement to reform the antiquated New Jersey court system. He understood and cared about the practical workings of the justice system, and this concern was to prove important in the development of his constitutional perspective.

Brennan was a committed civil libertarian who believed in "providing freedom and equality of rights and opportunities, in a realistic and not merely formal sense, to all the people of this nation." He considered courts to be the particular guardians of constitutional rights. "[T]he soul of a government of laws," he once wrote, "is the judicial function, and that function can only exist if adjudication is understood by our people to be, as it is, the essentially disinterested, rational and deliberate element of our society." For Brennan, the judicial function demanded a continual effort to translate constitutional values into general doctrinal formulations. This emphasis on doctrine distinguished Brennan from his colleague william o. douglas, who was an equally committed civil libertarian.

Brennan viewed courts as the last resort of the politically disfranchised and the politically powerless. Constitutional litigation was for him "a form of political expression"; it was often, he wrote in naacp v. button (1963), "the sole practicable avenue open to a minority to petition for redress of grievances." Litigation was thus an alternative, perhaps the only alternative, to social violence. For these reasons he seized every opportunity to enlarge litigants' access to federal courts. Exemplary is his opinion in baker v. carr (1962), which held that the issue of unequal legislative representation was justiciable in federal court, and which Chief Justice earl warren called "the most important case that we decided in my time." In opinion after opinion Brennan worked to open the doors of the federal courthouse, and to make available such federal judicial remedies for violations of the Constitution as habeas corpus, injunctions, declaratory judgments, and damages. In later years Brennan dissented vigorously as many of these opinions were cut back by the burger court.

Because he believed that "the ultimate protection of individual freedom is found in judicial enforcement" of constitutional rights, Brennan did not flinch from the exercise of judicial power. When the time came, for example, to accelerate the all deliberate speed with which brown v. board of education (1955) had ordered the nation's public schools to be desegregated, Brennan, in green v. new kent county school board (1968), shattered the facsade of southern "freedom-of-choice" plans and wrote that racial discrimination must end "now" and "be eliminated root and branch." In keyes v. school district #1 of denver (1973) Brennan took the lead in applying the requirement of Brown to northern school districts, and in cases like frontiero v. richardson (1973) and craig v. boren (1976) he played a major role in causing gender classifications to be subjected to substantial scrutiny under the equal protection clause of the fourteenth amendment.

Brennan was a nationalist. He believed in the power of Congress to define and protect civil rights and to govern the national economy unrestrained by concerns of state sovereignty. He disapproved of state regulations that interfered with interstate commerce. He favored the judicial imposition of national, constitutional values onto local decision-making processes. He believed, for example, that federal courts should fully incorporate almost all the guarantees of the bill of rights into the Fourteenth Amendment, and enforce them against the states. He dissented often and forcefully against the "federalist" leanings of the Burger Court. To Brennan the primary purpose of "the federal system's diffusion of governmental power" was to secure "individual freedom."

In his most enduring opinions, Brennan brought a unique and characteristic analysis to bear on the question of constitutional rights. Instead of inquiring into the power of government to regulate rights, he would instead focus on the manner in which the government's regulation actually functioned. The implications of this shift in focus were profound. They are perhaps most visible in the area of first amendment adjudication.

To appreciate Brennan's contribution to First Amendmentjurisprudence, it must be remembered that the Court to which Brennan was appointed was still reverberating from the effects of the constitutional crisis of the 1930s. It was, for example, groping for a means of reconciling judicial protection of First Amendment freedoms with the deep respect for majoritarian decision making that was the legacy of the Court's confrontation with President franklin d. roosevelt's New Deal. At the time Brennan joined the Court, the Justices were embroiled in a vigorous but ultimately unproductive debate as to whether First Amendment freedoms were "absolutes" or whether they should be "weighed" against competing government interests in regulation. (See absolutism; balancing tests.) Both sides of the debate viewed government interests and individual rights as locked in an indissoluble and paralyzing conflict. Brennan's lasting contribution was to push the Court beyond this debate and to create a form of analysis in which this conflict receded from view. The essence of Brennan's approach was a precise and persistent focus on the processes and procedures through which government sought to regulate First Amendment freedoms.

Justice Brennan first used this approach in his second term on the Court in the modest but seminal case of speiser v. randall (1958). The case involved a California law which denied certain tax exemptions to those who refused to execute an oath stating that they did "not advocate the overthrow of the United States or of the State of California by force of violence or other unlawful means." Significantly, Brennan did not approach the case in terms of an "absolute" right to engage in such advocacy. Nor did he inquire into California's "interests" in controlling such speech; he was willing to assume that California could deny tax exemptions to those who had engaged in proscribed speech.

Brennan focused his analysis instead on the procedures used to determine which taxpayers to penalize. He interpreted the California scheme as placing on taxpayers the burden of demonstrating that they had not engaged in unlawful speech. This procedure was unconstitutional, Brennan concluded, because it created too great a danger that lawful speech would be adversely affected. "The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding—inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens."

By focusing on the manner in which California had regulated speech, rather than on its power to do so, Brennan was led to inquire into the actual, practical effects of the regulatory scheme. He thus shifted the focus of judicial inquiry away from the particular speech of the litigant, and toward the impact of the legislation, as concretely embedded in its procedural setting, on concededly legitimate speech. This change in focus was central to Brennan's First Amendment jurisprudence, and it was the foundation of many of the Warren Court's innovations in this area. It had, for example, obvious relevance for the procedures used by government to regulate unprotected forms of speech like obscenity. Brennan spelled out these implications in a series of influential obscenity decisions that demonstrated the substantive impact of such nominally procedural isses as burden of proof and the nature and timing of judicial hearings.

Brennan's form of inquiry also led to a careful scrutiny of the vagueness of government regulations of speech. Prior to Speiser the issue of "vagueness" was primarily conceived in terms of the rather weak notice requirements of the due process clause. But Brennan's analysis offered a strict, new, and specifically First Amendment rationale for the doctrine. As Brennan explained in keyi-shian v. board of regents (1967), a case involving a New York law prohibiting public school teachers from uttering "seditious" words, "[w]hen one must guess what conduct or utterance may lose him his position, one necessarily will 'steer far wider of the unlawful zone."'

Brennan's focus on the practical impact of regulation also led him to the conclusion that the separation of legitimate from illegitimate speech had to be accomplished with "precision" and by legislation incapable of application to legitimate speech. As Brennan wrote in Button, First Amendment freedoms are "delicate and vulnerable," and "the threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." In Button Brennan coined the term overbreadth to capture this requirement that First Amendment regulations be narrowly tailored, and the term and the requirement have since become doctrinal instruments of major significance.

The framework of analysis developed by Brennan not only dominated the First Amendment jurisprudence of the Warren Court; it remained influential with the Burger Court that succeeded it. Its prominence was in large measure due to its apparent accommodation of government interests in regulation, if only the government could formulate its regulation more narrowly or more precisely. This accommodation, however, was in some respects illusory. The exact degree of constitutionally mandated precision or clarity was never specified, and the psychological assumptions that underlay the approach were not susceptible to empirical verification. As a result the requirements of clarity and precision could without explicit justification be loosened to uphold some government regulations, or tightened to strike down others. The indirection at the heart of this approach thus left it vulnerable to manipulation.

The approach was at its most compelling, therefore, when it was fused with an underlying substantive vision of the First Amendment. An illustration is the opinion which is Brennan's masterpiece, new york times company v. sullivan (1964). At issue in Sullivan was the Alabama law of libel, which permitted a public official to recover damages for defamatory statements unless the speaker could prove that the statements were true. With reasoning similar to that in Speiser and Button, Brennan concluded that Alabama's allocation of the burden of proof was unconstitutional, because it "dampens the vigor and limits the variety of public debate" by inducing "self-censorship."

In Sullivan, however, Brennan took the unusual and penetrating step of lifting this analysis from its procedural setting and applying it to the substantive standards required by the First Amendment. Noting that the central purpose of the First Amendment was "the principle that debate on public issues should be uninhibited, robust, and wide-open," Brennan concluded that this purpose would be undermined if those who criticized public officials were subject to "any test of truth." He noted that an "erroneous statement is inevitable in free debate, and [it] must be protected if the freedoms of expression are to have the 'breathing space' that they 'need…to survive.' The need for "breathing space" led Brennan to conclude that speech about public officials had to be constitutionally protected unless uttered with "actual malice"; that is, uttered "with knowledge that it was false or with reckless disregard of whether it was false or not." The actual malice standard thus incorporated into the substantive law of the First Amendment the insights Brennan had accumulated as a result of his prior focus on the process of regulation. The result, as alexander meiklejohn was moved to proclaim, was "an occasion for dancing in the streets."

Although Brennan's focus on process rather than power is most apparent in First Amendment opinions, it also pervades his entire approach to constitutional law. In Speiser, for example, California had argued that since a tax exemption was not a right but a privilege bestowed at the pleasure of the state, it could also be withdrawn by the state for any reason. The so-called right-privilege distinction had a venerable judicial pedigree, and was supported by Supreme Court precedents as recent as Barsky v. Board of Regents (1954). Brennan, however, brought a fresh perspective to bear on this argument, for he was concerned not with California's power to withdraw the privilege but with the manner in which it did so. From this perspective the right-privilege distinction was beside the point.

Brennan repeatedly attacked the right-privilege distinction, and many of his most important opinions, contributing to or originating major lines of doctrinal development, were predicated upon its rejection. Examples include sherbert v. verner (1963), which resuscitated the doctrine of "unconstitutional conditions" as applied to the denial of unemployment compensation; shapiro v. thompson (1969), which created the fundamental rights strand of equal protection analysis and applied it to durational residency requirements for welfare recipients; and goldberg v. kelly (1970), which for the first time applied the protections of procedural due process to the recipients of government entitlements such as welfare benefits.

Brennan's focus on process deeply influenced both the Warren and the Burger courts. As the welfare state increased in complexity, Brennan's approach provided the basis for flexible yet far-reaching judicial review of government action. We can recognize the consequences of this approach in the shape of modern constitutional inquiry, with its characteristic scrutiny into whether government has acted through appropriate procedures and in a manner not unduly burdening the exercise of constitutional rights.

It is noteworthy that the results of this scrutiny depend upon an apprehension of the actual impact of government action. In later years Brennan's views on this subject were informed by a compassion and empathy that were not always shared by his colleagues. With the advent of the Burger Court, Brennan increasingly became a dissenter. His dissents, like his majority opinions, tended to be careful and lawyerly, without the eloquence or sting that mark the most memorable examples of the genre. Often, however, both Brennan and the majority were writing within doctrinal frameworks that Brennan himself had helped to create. His success in redefining the major questions of constitutional law is the measure of his achievement.

Robert C. Post


Brennan, William Joseph, Jr. 1969 Convocation Address. Notre Dame Lawyer 44:1029–1033.

——1981 Justice Thurgood Marshall: Advocate for Human Need in American Jurisprudence. Maryland Law Review 40: 390–397.

Heck, Edward V. 1980 Justice Brennan and the Heyday of Warren Court Liberalism. Santa Clara Law Review 20:841–887.

Hutchinson, Dennis J. 1983 Hail to the Chief: Earl Warren and the Supreme Court. Michigan Law Review 81:922–930.

Kalven, Harry, Jr. 1964 The New York Times Case: A Note on "The Central Meaning of the First Amendment." Supreme Court Review 1964:191–221.

Levy, Leonard W., ed. 1972 The Supreme Court under Earl Warren. New York: Quadrangle Books.

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Brennan, William J., Jr. (1906–)

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