Brennan, William J., Jr. (1906–1997) (Update 2)

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BRENNAN, WILLIAM J., JR. (1906–1997) (Update 2)

William Joseph Brennan, Jr., was born to Irish immigrant parents in Newark, New Jersey in 1906. He was graduated near the top of his class at Harvard Law School in 1931, without taking the sole constitutional law course offered at that time. After practicing labor law for a hometown firm, Brennan accepted an appointment to the New Jersey Superior Court in 1949 and was elevated three years later to the state Supreme Court. In October 1956, President dwight d. eisenhower offered Brennan a recess appointment to the U.S. Supreme Court, partly because the two men shared a concern about the practical workings of the justice system, and partly because Eisenhower thought appointment of a Catholic Democrat would aid his reelection campaign that year. Brennan served as an Associate Justice until July 20, 1990, a period just shy of thirty-four years spanning parts of five different decades. During this period Brennan wrote over 500 majority opinions articulating the law of the land.

Generally regarded today as among the handful of greatest jurists ever to grace the Court, Brennan had an almost unparalleled impact on our constitutional jurisprudence. His influence is partly attributable to his lengthy service during a period of tremendous political, social, and cultural transformation; as oliver wendell holmes, jr. , once said, "A great man represents … a strategic point in the campaign of history, and part of his greatness consists in his being there." But it takes a great and focused man to seize the moment and make his mark. Brennan did so in two ways. First, through opinions both voluminous and visionary, he significantly reconstructed the architecture of constitutional doctrine respecting political and civil rights. Second, he developed and sustained a progressive methodological approach to interpreting the grand rights-protective phrases of the Constitution, an approach which, although criticized and contested, must be grappled with by subsequent Justices and serious students of the Constitution.

One testament to the doctrinal and social significance of Brennan's jurisprudence is that he often gave differing answers when asked to identify his most important constitutional decision. Perhaps most frequently, he would cite baker v. carr (1962) and its legacy for legislative reapportionment. Previously, the Court had refused to consider claims that unequally populated legislative voting districts violate the Constitution. As Justice felix frank-furter had explained in colegrove v. green (1946), such controversies concern "matters that bring courts into immediate and active relations with party contests," and "courts ought not to enter this political thicket." In Baker, however, Brennan rejected this reasoning and recognized the justiciability of a claim that the malapportionment of the Tennessee General Assembly violated the rights of voters to equal protection of the laws "by virtue of the debasement of their votes." Brennan's opinion for the Court paved the way for reynolds v. sims (1964) and its progeny, articulating the now-familiar constitutional principle of one person, one vote, which some claim revolutionized politics in various parts of the country. This principle became a constitutional axiom of democratic governance; spawned further judicial protections against more subtle forms of racial or political vote-dilution; and helped to energize Congress to protect voting rights through federal legislation.

At other times, Brennan would identify new york times v. sullivan (1964) as his most significant judicial contribution. At issue in Sullivan was Alabama's libel law, which permitted a public official to recover damages for defamatory statements unless the speaker could prove that her pronouncements were true. According to existing case law, libelous statements lacked first amendment protection and were therefore subject to plenary state regulation. But Brennan rejected this settled doctrine and held that "libel can claim no talismanic immunity from constitutional limitations." For Brennan, the First Amendment reflected a "profound national commitment to the principle that the debate on public issues should be uninhibited, robust, and wide-open," and this commitment was undermined by holding persons who criticize public officials to a rigorous "test of truth." Brennan observed that "erroneous statement is inevitable in free debate, and must be protected if the freedoms of expression are to have the 'breathing space' that they 'need … to survive.' " Even false speech about public officials, Brennan concluded, should be immune from libel claims for damages unless uttered "with knowledge that it was false or with reckless disregard of whether it was false or not." Application of this so-called "actual malice" standard for libel has since been broadened to protect an array of speakers contributing to a rich public debate on matters of public import.

On still other occasions, Brennan would identify goldberg v. kelly (1970) as his signature achievement on the Court. Previously, the Court had defined the "liberty" and "property" interests protected by the due process clauses by reference to common law principles. If government took someone's property or invaded her liberty as defined by the common law, due process required some sort of hearing; but no hearing was required for deprivations of public benefits, such as public employment, a license, or welfare. This doctrine seemed increasingly formalistic with the twentieth-century expansion of government employment and largesse. While more and more people grew increasingly dependent on such forms of "new property," prevailing doctrine did not protect against even the most arbitrary withdrawal of governmental benefits. But Goldberg dramatically redefined the scope of the interests protected by the due process clauses. Apparently moved by the tragedy of a family incorrectly cut off from its lifeline, Brennan recognized that "much of the existing wealth in this country takes the form of rights that do not fall within traditional common law concepts of property"; so, it is "realistic today to regard welfare entitlements as more like property than a 'gratuity.' " As a result, Goldberg held, a state may not terminate public assistance benefits without affording the recipient an evidentiary hearing prior to termination. Brennan's opinion, which envisioned a humanization of bureaucracy, launched a new era in the extension of due process rights. In subsequent decisions the Court extended Goldberg to grant due process protection to the termination of public employment, the termination of food stamps, the revocation of parole, the suspension of drivers' licenses, and many similar governmental actions.

Brennan wrote landmark opinions for the Court on many other important issues as well. With respect to equal protection rights, Brennan was heavily involved in the post–brown v. board of education (1954) efforts to enforce integrationist remedies to combat entrenched racial school segregation. For example, in green v. county school board (1968), Brennan rejected the "freedom of choice" plans used to forestall desegregation in the South; in keyes v. school district no. 1 of denver (1973), he articulated a doctrinal rule more relevant for northern school systems establishing a rebuttable presumption that intentional segregation in part of a system infects the whole; and in cooper v. aaron (1958), he drafted the per curiam opinion proclaiming judicial supremacy in constitutional interpretation and denouncing Southern political resistance to the dictates of Brown. Brennan laid the foundation for two decades of ardent support for affirmative action programs in his plurality opinion in regents of university of california v. bakke (1978), culminating in his short-lived decision in metro broadcasting v. fcc (1990) holding that federal affirmative action programs need not be subjected to the strictest judicial scrutiny. In frontiero v. richardson (1973) and craig v. boren (1976), Brennan led the Court to subject sex-based classifications to a demanding form of "intermediate" judicial scrutiny. With respect to First Amendment rights, Brennan was the architect of the modern overbreadth doctrine in naacp v. button (1963) and the modern vagueness doctrine in keyishian v. board of regents (1967). At the end of his career he preserved the core meaning of the First Amendment by authoring the controversial 5–4 decisions in Texas v. Johnson (1989) and United States v. Eichman (1990), which extended constitutional protection to flag desecration as an act of political protest. In the realm of criminal justice, Brennan's doctrinal legacy includes not only individually important decisions such as fay v. noia (1963) concerning the scope of the writ of habeas corpus, but also his successful drive for "selective" incorporation doctrine that made most of the bill of rights applicable to the states, and consequently part of our national political consciousness. Other landmark cases protecting an array of individual's rights include sherbert v. verner (1963) (religious liberty), katzen-bach v. morgan (1966) (Congress's fourteenth amendment, section 5 power), shapiro v. thompson (1969) (right to travel), in re winship (1970) (beyond reasonable doubt requirement), bivens v. six unknown named agents (1971) (constitutional remedies), and penn central transportation co. v. new york city (1978) (regulatory takings). Brennan was also instrumental in drafting the per curiam opinions in brandenburg v. ohio (1969) (freedom of speech), and buckley v. valeo (1976) (campaign finance reform).

These opinions exemplify Brennan's wide-ranging influence over the contemporary constitutional landscape not only for their discrete holdings, but for their articulation of sophisticated doctrinal frameworks that inevitably shaped the presentation and consideration of later cases. Once described as a "virtuoso of doctrine," Brennan carefully crafted tests, rules, and standards of review, and embedded them through repetition to the point where, as Justice david h. souter foretold when he eulogized Brennan, future Justices "in subject after subject of the national law … will either accept the inheritance of his thinking, or … will have to face him squarely and make good on [their] challenge to him."

Brennan's doctrinal architecture is all the more impressive and formidable because it reflects a coherent and heart-felt substantive vision of the Constitution's grand design: the protection of human dignity. Brennan himself explained that, "As augmented by the Bill of Rights and the Civil War Amendments, this [constitutional] text is a sparkling vision of the supremacy of the human dignity of every individual." This vision explains Brennan's appreciation of Baker and its progeny's insistence on fair and participatory governance; he observed that "[r]ecognition of the principle of 'one person, one vote' as a constitutional principle redeems the promise of self-governance by affirming the essential dignity of every citizen in the right to equal participation in the democratic process." Dignity also requires that governments treat individuals with regularity, decency, and respect; these themes emerged throughout Brennan's opinions regarding equality, due process, and criminal justice. Perhaps moved by his own experiences with oppressed laborers and the poor during the Great Depression, Brennan wrote eloquently about the Constitution's proper concern with marginalized individuals for whom the promise of America had yet to be redeemed. And when he finally retired from judicial service, he explained, "It is my hope that the Court during my years of service has built a legacy of interpreting the Constitution and federal laws to make them responsive to the needs of the people whom they were intended to benefit and protect."

One reason for Brennan's remarkable success at translating his substantive visions into constitutional law was his ability to forge case-specific majority coalitions comprised of Justices with differing ideological and methodological views. Brennan was a pragmatic visionary, strategically determining in each case just how far to push his view of the law. He deployed his Irish charm, wit, and winning personality to establish relationships of mutual enjoyment and respect with his associates. But people-skills alone cannot account for his success at forging consensus among colleagues, who themselves were too strong-minded and independent to be cajoled in important cases. Rather, Brennan frequently bridged differences among his colleagues through careful foresight, drafting opinions tactically to accommodate their expected and expressed concerns. As Brennan vividly illustrated to every new set of law clerks by waggling his hand with five fingers extended, he constantly focused on the fact that it takes five agreeing Justices to make precedent. Thus he was frequently willing to compromise his own views somewhat in order to preserve an opinion of the Court, securing the optimal from within the possible.

This accommodationist strategy was rarely needed during the warren court era, particularly between 1962 when Justice Felix Frankfurter was replaced by Justice arthur j. goldberg and 1969 when Chief Justice earl warren retired. While the Warren Court's product was shaped by several minds, Brennan frequently crafted the language and rules that transformed principles into law. During the subsequent burger court era, Brennan became the leader of a fluctuating group of Justices, never a secure majority, who struggled on an issue-by-issue basis to maintain and sometimes even extend the Warren Court legacy. During this period, and even later on the more conservative rehnquist court, Brennan's savvy coalition-building efforts led to some surprising liberal victories. These ranged from plyler v. doe (1982), a 5–4 decision invalidating a Texas law denying a free public education to children of illegal immigrants, to Metro Broadcasting, Brennan's final majority opinion before retirement, a 5–4 decision upholding a race-conscious affirmative action program designed to enhance speaker diversity in broadcasting. Moreover, Brennan also worked hard behind the scenes to influence the opinions of his colleagues in cases of enduring significance. For example, in griswold v. connecticut (1965), he convinced Justice william o. douglas to rest the invalidation of a law restricting access to birth control on more expansive right of privacy grounds rather than narrower freedom of association grounds. And in Bakke, he influenced Justice lewis f. powell to include in his controlling separate opinion an affirmance of race-consciousness as one nondispositive factor in higher education admissions. Thus Brennan used his considerable powers of persuasion, as well as strategic sensitivity, to control outcomes and shape doctrines even on a divided and oft-divisive Court.

In several areas of the law, Brennan was unable to halt the step-by-step dismantling by the Burger and Rehnquist Courts of his earlier doctrinal structures. For example, in cases such as wainwright v. sykes (1977) and Teague v. Lane (1989), the Court severely restricted the availability of the writ of habeas corpus as a means of challenging state criminal procedures. In cases such as mccleskey v. kemp (1987), the Court began to retreat from its earlier promises of stringent judicial enforcement of racial equality. And in Gregg v. Georgia (1976) and its progeny, the Court definitively rejected Brennan's claim that capital punishment necessarily constitutes cruel and unusual punishment. In these realms, when Brennan's efforts to form and maintain coalitions failed, he frequently resorted to rigorous and spirited dissent calculated variously to chide his colleagues, prompt congressional reactions, embolden lower courts, and plant the seeds for a future Court turn-about. Indeed, in the death penalty context he eschewed his general accommodationist stance and, along with Justice thurgood marshall, stubbornly adhered to his "view that the death penalty is in all circumstances cruel and unusual punishment," well after the Court had rejected this extreme position. Brennan marginalized himself in this line of cases, and some have suggested that his refusal to wield his consensus-building skills cost him the opportunity to temper the Court's systematic rollback of procedural protections to death-sentenced defendants over the last decade of his tenure.

Brennan's impact on modern constitutional discourse extends beyond the substantive to the methodological. Brennan developed, practiced, and claimed legitimacy for the interpretive principle of a " living constitution." This principle entails two commitments. First, constitutional interpretation involves a purposive or functional inquiry: A judge should reflect on the values and ideals underlying the constitutional text; consider how those ideals interact with the practical world; and shape doctrine to best attain those values. Second, given this purposive inquiry, the Constitution's operationalized meaning should change as the needs and demands of society change. As Brennan once explained: "The burden of judicial interpretation is to translate the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.… For 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 and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time." For judges to make up new constitutional principles is illegitimate, he conceded, but for judges to adapt old principles to changing conditions is both appropriate and necessary.

Brennan's methodological approach has generated significant controversy, in part because of the apparent subjectivity in this distinction between making up new principles and adapting old ones. The commonplace charge of judicial activism is misplaced; as evidenced by the Rehnquist Court's recent rulings concerning state sovereignty and affirmative action, Justices with very different interpretive commitments frequently trump democratic decisions as well. The more serious charge is that, in the process of discerning the values underlying the Constitution's grand structure and vague rights-protective provisions, Brennan inevitably read his own personal values and ideals into the text. While conceding that constitutional interpretation can never be a mechanical enterprise, Brennan's critics accused him of straying too far from the anchors of textual plain meaning and the original intent of the Framers such that he essentially remade the Constitution in his own image. As Justice antonin scalia has proclaimed, Brennan's approach would measure the validity of democratic decisions "against each Justice's assessment of what is fair and just." Brennan did not shy from such a charge. He candidly defended the importance and indeed necessity of operationalizing the Constitution's broad purposes and ideals in a contemporary context, although he recognized that this translation was necessarily a somewhat subjective exercise. He vehemently denied, however, that his jurisprudence merely imposed his personal value judgments into the Constitution; he viewed himself as interpreting through the lens of modern context the judgments already embedded there. Whether this view is accurate and, more generally, whether implementation of a "living Constitution" fulfills or ignores the duty of fidelity to the design of the Framers are the methodological questions that frame the central controversy in constitutional jurisprudence today. Brennan is thus the archetype of a compelling conception of judging in a modern constitutional democracy.

Upon his retirement, Brennan was at ease with the possibility that many of his specific contributions to constitutional law would be supplanted in the future. The commitments he articulated and rules he crafted were, to his mind, the best possible answers to the particular questions of his time. But given changing societal conditions, technologies, and bureaucratic structures, and his belief that society's view of human dignity "will never cease to evolve," he expected that both the questions and answers of tomorrow would leave those of today behind. Thus, while many of his doctrines will surely survive and influence legal dispositions for generations, others will just as surely be overruled or become irrelevant. But upon his death in 1997 he would have been proud enough of his legacy if future Justices would embrace his commitment to the evolving nature of constitutional meaning, and agree with his view that "the progress of the law depends on a dialogue between heart and head."

Evan H. Caminker

(see also: Constitutional History, 1945–1961; Constitutional History, 1961–1977; Constitutional History, 1977–1985; Constitutional History, 1980–1989.)


Blasi, Vincent 1982 The Burger Court: The Counter-Revolution That Wasn't. New Haven, Conn.: Yale University Press.

Brennan, William J., Jr. 1986 The Constitution of the United States: Contemporary Ratification. South Texas Law Review 27:433–445.

——1988 Reason, Passion, and "The Progress of the Law." Cardozo Law Review 10:3–23.

Clark, Hunter R. 1995 Justice Brennan: The Great Conciliator. New York: Birch Lane Press.

Rosenkranz, E. Joshua and Schwartz, Bernard, eds. 1997 Reason and Passion: Justice Brennan's Enduring Influence. New York: W. W. Norton & Company.

Schwartz, Bernard 1994 "Brennan vs. Rehnquist"—Mirror Images in Constitutional Construction. Oklahoma City University Law Review 19:213–250.

Symposium 1990 A Tribute to Justice William J. Brennan, Jr. Harvard Law Review 104:1–39.

——1997 In Memoriam: William J. Brennan, Jr. Harvard Law Review 111:1–50.

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Brennan, William J., Jr. (1906–1997) (Update 2)

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