The Political Philosopher Beneath the Robes

Justice Brennan: Liberal Champion misses the secret of his vision.

William J. Brennan Jr., who was appointed to the Supreme Court by President Eisenhower in 1956 and resigned in 1990, was the most influential justice on the bench in the second half of the 20th century. Step back further, and his stature is even greater. Thanks to his wide-ranging contributions to the court’s expanding role during those three-and-a-half decades, he was one of the most important justices in American history.

Building on the court’s landmark ruling about equality before the law in Brown v. Board of Education, he led the court to extend that principle in matters of race and gender. Voicing the need for a robust press to speak truth to power, for every adult to vote, and for each vote to count the same, he helped strengthen the workings of our democracy. Rewriting rules about access to welfare benefits for poor people, to collective bargaining for labor, and to the federal courts for prisoners, he helped provide crucial measures of fairness. In his 533 opinions for the court, Brennan shaped hundreds of other areas as well. In his 694 dissents, he was often even more forthright about articulating the views on equality, liberty, and human dignity that animated his jurisprudence.

The overarching question for a biography—particularly an authorized biography, written with access to some papers that others aren’t allowed to see until 2017—is, What made Brennan so influential? In Justice Brennan: Liberal Champion, commissioned almost a quarter of a century ago, Stephen Wermiel joins forces with Seth Stern to argue that as “a progressive centrist,” Brennan succeeded in large part because he was a relative moderate rather than a flaming liberal. Above all, he was a pragmatist. To every new set of law clerks, he would hold up a hand with fingers splayed and instruct that his goal in each case was to get to five votes.

Wermiel and Stern’s argument that he was a shaper of consensus is unsurprising and wholly convincing. For over two decades, or two-thirds of his tenure, Brennan’s skill as a coalition-builder made him dominant, first as “a judicial partner” to Chief Justice Earl Warren, then as a foil to Chief Justice Warren Burger. More surprising, but still generally persuasive, is their brief for Brennan as a relative moderate. But their portrait fails to address the power, scope, and grandeur of the ideas that gave coherence to Brennan’s jurisprudence.

After Brennan died in 1997 at the age of 91, a “Memorial Resolution Adopted by the Bar of the Supreme Court of the United States” offered a perspective that’s missing from Justice Brennan. Drafted by professor Burt Neuborne of NYU Law School and added to by others, it positions Brennan with Chief Justice John Marshall and Justice Oliver Wendell Holmes Jr., all three of whom redefined the “role of a constitutional judge in a vibrant democracy.” Marshall “pioneered the use of judicial review.” Holmes “helped to chart the complex relationship between judicial review and respect for the will of the majority.” Brennan deployed “a modern, purposive reading of the Bill of Rights in defense of the innate dignity of the individual.” His contribution was to remind us “that true democracy requires us to fulfill our duty to the individual.”

It has been Brennan’s legal enemies who have generally been readiest to credit him with a political philosophy—albeit rooted in a personal, rather than principled, vision. Central to the conservative attacks on the Warren Court a generation ago was a portrait of Brennan as an avatar of judicial activism. A measure of that campaign’s lasting impact is that many liberals, too, assume that, in shaping key rulings of the Supreme Court, Brennan imposed his own views and preferences.

The biography usefully complicates that reductive notion, most notably in the realm of gender relations. As a non-devout but practicing Catholic, Brennan was personally conservative and opposed to abortion. But he was unequivocal that women have the right to choose and he made fundamental contributions to Justice Harry Blackmun’s opinion in the 1972 case of Roe v. Wade. In a series of cases, Brennan also decried America’s “long and unfortunate history of sex discrimination” and was the court’s leading champion of gender equality. Yet this same man, while charming and chivalrous toward women, had no female clerks during the first half of his tenure on the court. He finally hired one only when a male former clerk rebuked him, saying that he couldn’t believe the justice would “continue a policy that is both unconstitutional and simply wrong, and is so much at odds with your great principles.”

Biographical sleuthing ends up shedding less light on the overarching conception of American democracy that Brennan put into practice while applying the Constitution. When conservatives attacked him for his belief in “radical egalitarianism” and “judicial supremacy” and for being “perhaps the major threat to individual liberty” in the United States, they got the scale right but the specifics wrong. A political philosophy formed the powerful bedrock of his opinions, as Robert Post, now dean of Yale Law School and a former Brennan clerk, argued in an essay the year after Brennan stepped down. But its roots lay in “a vision of individuals uniformly equal before the Constitution” whose implications conservatives misconstrued.

The egalitarianism, far from radical, reflected the founding ideal of America, however imperfectly realized. In championing individualism, Brennan’s approach was the opposite of a major threat to individual liberty. As for judicial supremacy, Brennan believed that “the judicial function” was “the soul of government” because the judiciary needed to protect individuals in conflicts with government. But opinions of his also called on a wider array of forces—the president and the executive branch, Congress, state legislatures, state supreme courts, federal and state bureaucracies—to uphold the same democratic principles in what Post calls a “new vision of the American polity.” While the Supreme Court and the rest of the federal judiciary had greater responsibilities in this vision, every other element of government had its role.

In their focus on Brennan the pragmatist, Wermiel and Stern can obscure just how optimistic and extraordinarily ambitious in scope his underlying philosophy was. At the same time, their emphasis on Brennan’s practical—and highly effective—coalition-building in pursuit of consensus is a useful reminder of a core tenet of that vision: that all individuals deserve equal consideration.

New York Times v. Sullivan is on every shortlist of contenders for the most important opinion Brennan ever wrote and the Warren Court handed down. It would be hard to find one more emblematic of his vision and the values that informed it. In 1964, speaking for a unanimous court, he revolutionized the law governing free speech, holding that a public official could recover damages for a statement about his official conduct only if he could prove the statement was made with “knowledge that it was false or with reckless disregard of whether it was false or not.” The decision brought together liberty, equality, and the vitality of American democracy because it started as a civil-rights case: The libel action against the newspaper was intended to chill its coverage of civil rights and the movement for racial equality.

The ruling exemplified Brennan’s pattern in major cases of putting his personal values aside in favor of what he thought was called for in law. Long after the opinion in the case was handed down, Brennan’s attitude toward the press was often mistrustful and brusquely standoffish. His opinion also exemplified his moderation. Leading First Amendment scholars would have provided absolute immunity for speech about the business of governing. Brennan, by contrast, struck a balance between free expression (and its obvious contribution to democracy) and reputation (and its value to every individual). Still, in New York Times v. Sullivan, as he did in other First Amendment cases, he defended “uninhibited, robust, and wide open” debate, in particular in the press. Embracing this as a principle our democracy depends on, he defined an essential facet of American freedom.

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