William J. Brennan

Associate justice of the United States (1956-1990)

• Born: April 25, 1906
• Birthplace: Newark, New Jersey
• Died: July 24, 1997
• Place of death: Arlington, Virginia

The most influential liberal voice of the U.S. Supreme Court during the second half of the twentieth century, Brennan wrote many of the Court’s landmark opinions in the areas of criminal procedures, First Amendment freedoms, equal protection, gender equality, and personal autonomy.

Early Life

The second of eight children whose parents were Irish immigrants, William J. Brennan was profoundly influenced by his hardworking father, who rose from a coal shoveler in a brewery to become a city commissioner and director of public safety. Growing up in a working-class milieu, Brennan identified with poor people and favored labor unions. Adopting his father’s liberal social philosophy and work ethic, Brennan made excellent grades in school while he worked at a large number of jobs, beginning in grade school and continuing through his college years.

Brennan majored in business and finance at the University of Pennsylvania, graduating with honors in 1928. The week before graduation, he married Marjorie Leonard, who worked in order to finance his legal education at the Harvard Law School, where he graduated in 1931. Admitted to the New Jersey bar the next year, he embarked on a career as a labor lawyer at a prominent law firm, where he was named a partner in 1937. Following the outbreak of World War II, he entered the U.S. Army as a major in 1942 and left the service as a colonel in 1945.

Life’s Work

Returning to civilian life, Brennan was a leading voice in the court reform movement of New Jersey. In 1949, he was appointed a trial judge, and three years later he was appointed to the Supreme Court of the state. As a judge, he was a strong supporter for the rights of criminal defendants, and he criticized McCarthy-period excesses in speeches around the state. In 1956, President Dwight D. Eisenhower nominated Brennan as associate justice for appointment on the U.S. Supreme Court. Eisenhower’s advisers convinced him that the appointment of a Roman Catholic Democrat from the Northeast would help Republicans gain votes in some of the closely divided states. In the Senate, Senator Joseph McCarthy was the person to oppose the nomination. Eisenhower would later refer to his choice of Brennan as one of his two major mistakes, the other being the selection of Chief JusticeEarl Warren.

Despite Brennan’s junior status, he quickly emerged as one of the most brilliant and influential of the justices. Quickly joining the Court’s liberal wing, he would write a large percentage of the Warren Court’s landmark decisions. However, Brennan usually took a more cautious and nuanced approach than did his liberal colleagues, avoiding absolute statements in favor of a “balancing” of competing legal values. Even his critics acknowledged the care and thoughtfulness of his writings.

Many of Brennan’s more important judicial opinions dealt with issues of equal protection. In Cooper v. Aaron (1958), he asserted federal judicial supremacy in reaction to the “massive resistance” to desegregation orders in the South. His opinion for the Court in Baker v. Carr (1962) provided the foundation for the “reapportionment revolution,” based on the principle of “one person, one vote.” In the case of Green v. School Board (1968), Brennan rejected a “freedom of choice” plan that preserved racially segregated schools, and he insisted that school districts had the obligation to bring about desegregated schools. Brennan’s Green ruling provided the basis for later decisions approving court-ordered busing plans, which he would consistently endorse.

Brennan also wrote many of the landmark First Amendment opinions, particularly in the area of free expression. His opinion in Roth v. U.S.(1957), for example, explicitly recognized for the first time that some forms of pornography were constitutionally protected. Although the opinion recognized that states might criminalize “obscenity,” he defined obscenity so narrowly that it became very difficult to prosecute. In New York Times v. Sullivan (1964), Brennan’s opinion for the Court recognized the constitutional right to criticize public officials without the threat of libel suits, based on “the principle that debate on public issues should be uninhibited, robust, and wide open.” Rejecting the idea of absolute immunity from libel, however, he allowed officials to sue for “actual malice,” which he defined as reckless and deliberate disregard for the truth. His majority opinion in Goldberg v. Kelly (1970) recognized welfare as a form of property for constitutional purposes, which meant that it could not be terminated except through fair procedures.

Beginning in the 1970’s, as the Supreme Court became more conservative, Brennan and Thurgood Marshall were the strongest proponents of judicial liberalism. In Gregg v. Georgia (1976), they were the only justices to dissent and argue that capital punishment was inherently unconstitutional. On most constitutional and statutory issues, the two justices disagreed with the conservative William H. Rehnquist, who was appointed chief justice in 1986. In an increasingly polarized Court, Brennan worked tirelessly to attempt to achieve a liberal majority. In Texas v. Johnson (1989), he spoke for a 5 to 4 majority in striking down laws that criminalized the desecration of the flag of the United States.

Brennan was the Court’s most outspoken proponent of gender equality. In the landmark case of Craig v. Boren (1976), his opinion for the majority recognized gender-based classifications would be subject to heightened scrutiny, which meant that any discrimination against women was likely to be found unconstitutional. Brennan, nevertheless, was a consistent defender of affirmative action programs that involved preferences on the basis of gender or race in order to counteract the effects of prior discrimination. He was also a strong supporter of the controversial “right of privacy,” which included a woman’s right to obtain an abortion, despite his active membership in the Catholic Church, which opposes abortion.

Brennan sometimes wrote very caustic dissents, and he occasionally became involved in public controversy. In the South Texas Law Review (1986), he responded to Attorney General Edwin Meese and other critics who accused him of “judicial activism ,” or rendering judgments based on ideological preferences rather than the literal words of the U.S. Constitution or the original intent of the Framers. Referring to these criticisms as “little more than arrogance cloaked as humility,” he argued the Court should uphold the fundamental purpose of the Constitution, which was to promote the “human dignity of every individual.” His approach was based on the concept of a “living Constitution,” which assumes that the meaning of the Constitution changes as culture evolves. His conservative colleague Antonin Scalia described his jurisprudence as “results-oriented.”

Significance

Brennan exercised a profound impact on the Supreme Court during the second half of the twentieth century. During his tenure of thirty-four years, he authored 1,360 opinions, second in number only to those written by Justice William O. Douglas. In addition to his contributions as a researcher and writer, he was recognized as being unusually effective in negotiating with other justices to form a majority. Chief Justice Warren described him as “a prodigious worker and a master craftsman” who served as “a unifying influence on the bench and in the conference room.”

Brennan was strongly committed to an activist Court that would not hesitate to take a strong stand in favor of the principles and values of judicial liberalism. While he avoided absolutist positions, he could be counted on to vote in favor of individual liberties, equality for minorities, the rights of criminal defendants, and personal autonomy in matters such as marriage and sexuality. Few of his opinions have been overturned, and he is widely recognized as one of the most articulate and thoughtful writers in the history of the Court.

Bibliography

Goldman, Roger, and David Gallen. Justice William J. Brennan, Jr.: Freedom First. New York: Carroll & Graf, 1994. A scholarly and sympathetic analysis of Brennan’s life and his career in jurisprudence.

Irons, Peter. Brennan versus Rehnquist: The Battle for the Constitution. New York: Alfred A. Knopf, 1994. Written by a prominent liberal lawyer, this book presents an excellent comparative analysis of two strong ideological voices that dominated the Supreme Court for many years.

Marion, David. The Jurisprudence of Justice William J. Brennan: The Law and Politics of “Libertarian Dignity.” New York: Rowman & Littlefield, 1997. A close analysis arguing that Brennan’s career represented the most important judicial force of the century, promoting an expansion of individual rights and human dignity.

Michelman, Frank. Brennan and Democracy. Princeton, N.J.: Princeton University Press, 1999. Written by an admiring former law clerk, this rather difficult book analyzes Brennan’s views on the substantive and procedural aspects of modern democratic theory.

O’Brien, David M., ed. Judges on Judging: Views from the Bench. 2d. ed. Washington, D.C.: CQ Press, 2004. A collection of writings on judicial processes by justices of various courts in the United States. Includes two essays by Brennan: “The Constitution of the United States: Contemporary Ratification” and “Guardians of Our Liberties State Courts No Less than Federal.”

Richards, Robert D. Uninhibited, Robust, and Wide Open: Mr. Justice Brennan’s Legacy to the First Amendment. Boone, N.C.: Parkway, 1994. A relatively short account of Brennan’s opinions on the major categories relating to freedom of expression, which he considered the “cornerstone of the democracy.”

Schwartz, Bernard, and E. Joshua Rosenkranz, eds. Reason and Passion: Brennan’s Enduring Influence. New York: W. W. Norton, 1997. Collection of interesting essays on a variety of topics written by journalists, legal scholars, and six Supreme Court justices.

Urofsky, Melvin I. The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2001. An examination of the Supreme Court with Warren as chief justice. Includes profiles of the justices, including Brennan, the Court’s discussions of its decisions, and an appraisal of its influence.