The Brennan Legacy

MR. Justice Brennan, a modest man of slight build and small stature, leaves a giant's footprint on the American system of jurisprudence that is likely to be unparalleled in the 20th century. William J. Brennan Jr., who retired last week, sat on the United States Supreme Court for nearly 34 years. Appointed by President Dwight D. Eisenhower, the New Jersey jurist of Irish descent gave new meaning to civil liberties through dozens of studied decisions which upheld the rights of women and blacks in the workplace, and individual guarantees of privacy, freedom of speech and expression, and the protection of the criminally accused.

Liberals have sung Brennan's praises as a fierce defender of choice and equality. Conservatives generally opposed his judicial philosophy but respected his intellect, fairness, and even temperament. Chief Justice William Rehnquist wrote that Brennan's ``outlook on life and friendly warmth toward his colleagues ensure that disagreements about the Constitution will not mar personal relationships.''

Brennan and Mr. Rehnquist were on opposite ends of the ideological spectrum, but their friendship endured some weighty judicial battles.

In recent years, Justice Brennan inherited the role of the high court's quintessential liberal. Along with Associate Justice Thurgood Marshall, he forged coalitions with centrist Justices Harry Blackmun and John Paul Stevens to present strong dissents to the conservative majority on a succession of rulings curbing expansion of civil liberties. Occasionally, a fifth vote would be won over to give Brennan and his colleagues a slim, often unexpected, majority.

Brennan opinions, which prevailed in the Supreme Court term that ended in June, included: an endorsement of congressional power to enact affirmative action programs; a ruling that the First Amendment prohibits most political patronage in hiring or promotion; and a reiteration of a 1989 judgment overruling the constitutionality of laws against flag burning.

In his early years on the bench, Justice Brennan's liberal voice blended with those of former Chief Justice Earl Warren and Associate Justices Hugo Black, William Douglas, Abe Fortas, Arthur Goldberg, and Marshall as keepers of the flame of individual rights.

Appointments to the high court bench by Presidents Nixon and Reagan have left Brennan as the chief dissenting voice against encroachments on affirmative action, rights of the accused, abortion, and the death penalty. Now, President Bush's appointment of Judge David Souter to replace Brennan could reinforce the conservative majority.

The recently resigned justice is unalterably opposed to capital punishment, which he considers counter to that which the Constitution proscribes as ``cruel and unusual.'' He has fought a losing battle in this area, however, as the high court has not only preserved the death penalty but expanded its use in some instances to adults who committed capital crimes as juveniles and others with diminished mental capacities.

University of Virginia constitutional scholar David O'Brien reports in his book, ``Storm Center,'' that Justices Brennan and Marshall have the Supreme Court clerk's computer ``programmed to print automatically all dissents from denial of certiorari [petition for review] when a capital punishment case is denied review.''

A philosophy of individual rights and fundamental choice which government cannot, and should not take away or abridge, is the hallmark of Justice Brennan's more than three decades on the Supreme Court. It underlies his embracing of the concept of privacy - central to his support of abortion rights, protection against censorship of some forms of obscene advertising and indecent books, lawfulness of consenting-adult sexual behavior, and opposition to expansive criminal searches and governmental drug-testing.

Brennan has been a strong supporter of both sides of the First Amendment coin - protecting press freedoms and free expression on the one hand and supporting the wall of separation between church and state on the other.

In New York Times v. Sullivan, he established in his majority ruling the widely acclaimed ``actual malice'' standard which limits press vulnerability to libel damages brought by public officials for criticism lodged against them in the media.

Brennan has also opposed prescribed school prayer, religious displays on public property, and financial aid to parochial institutions as violating the Establishment Clause of the Constitution.

As a practicing Roman Catholic, he is by no means opposed to religion. He believes, however, that adherence to church-state separation does not constitute government hostility to nonsecular activities.

In 1985, former US Attorney General Edwin Meese III attacked the Supreme Court for departing from its constitutional mandate. Mr. Meese called for a ``jurisprudence of Original Intention'' and criticized the legal Doctrine of Incorporation - championed by Brennan - which holds that the Bill of Rights applies to the states as well as the federal government.

Although other justices confronted Meese directly and a national debate ensued over ``Original Intent,'' Brennan's response was impersonal and low key. ``It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions,'' he said.

Even-tempered, optimistic by nature, and refusing to predict dramatic unraveling of his longtime liberal legacy to the court, William J. Brennan Jr. leaves the bench as he approached it three decades ago - lauding the power of the Constitution and the system that upholds it.