Justice Brennan: Liberal Champion

William Brennan was probably the most liberal US Supreme Court justice in the post-World War II era. Embracing a progressive, expansive view of “equal protection” under the law, Brennan rejected discrimination against blacks, women, gays, and the poor. In the realm of criminal justice, Brennan’s controversial decisions enlarged the legal protections granted to suspects, providing them a bolstered right to silence, the right to court-appointed public defenders, and more.

Even more controversially, Brennan carved out a constitutionally protected “right to privacy” that would pave the way for 1973’s “Roe v. Wade” decision.
While Brennan’s brand of liberal judicial activism thrived in the 1960s (during the tenure of his friend, Chief Justice Earl Warren), the last two decades of his long term (1956-90) saw a conservative backlash, as right-wing politicians (like Richard Nixon and Ronald Reagan) joined forces with “strict constructionist” judges (like William Rehnquist and Antonin Scalia) to roll back many of Brennan’s progressive rulings.

Authors Seth Stern and Stephen Wermiel are both legal scholars and journalists who have a deep understanding of how the Supreme Court works. Wermiel actually interviewed Brennan dozens of times before the “liberal champion” died in 1997; Wermiel was also given access to Brennan’s files and notes, allowing the authors a true “behind the scenes” look at some of the most important Supreme Court decisions of the last half century. As a work of legal analysis, Justice Brennan provides unique insights into Brennan’s own legal thinking and how he lobbied other justices to support his views.

The authors also describe Brennan’s middle-class, Irish-American childhood as the son of a Jersey City politician. Indeed, Brennan gained many of his legendary political skills from watching his dad: young Brennan “observed ... the way Bill [Senior] remembered names and faces and could fit in so comfortably at a firehouse or corner tavern,” the authors write. But beyond Brennan’s undeniable affability, we never see into the deeper recesses of Brennan’s character.

The authors describe Brennan’s successful early career as a New Jersey lawyer. He displayed his proclivities for helping the poor when he volunteered at Harvard Law School’s Legal Aid Bureau, where the future judge (and then law student) represented poor clients. After becoming a New Jersey state judge, Brennan was chosen by President Dwight Eisenhower to fill an opening on the Supreme Court. Ike, the authors explain, expected the selection to help him win Roman Catholic votes in 1956. (And it did.) Once on the bench, however, Brennan, and fellow Eisenhower-appointee Warren, would greatly disappoint the Republican president.

Brennan was courted by two legal giants, Felix Frankfurter and Earl Warren. Frankfurter’s stunning intelligence was matched only by his social insensitivity. His method of persuasion involved pompously lecturing his listeners until they accepted his opinion. Brennan understandably distanced himself. With Warren, the affable former governor of California, Brennan forged a partnership throughout the 1960s that would alter American legal history.

In a series of decisions skillfully described by the authors, Brennan would promote civil rights, extend fuller protections to the press, revolutionize the criminal process by expanding protections for suspects, curb the death penalty, and create a new role for the Supreme Court as a protector of individual liberty.

Brennan’s many critics accused him of “creating” new rights that the Founders never imagined and certainly never wrote into the Constitution. After Warren left the court, and Chief Justice Warren Burger took over, the court moved rightward, and would remain there for much of the 1970s and ’80s. Much of the second half of this long biography shows Brennan fuming against this conservative backlash, his “growing frustration over finding himself in the unhappy role ... [of] dissenter.”

When Rehnquist became chief justice, things became even worse for Brennan. “Rehnquist invariably ruled for the government over the individual,” the authors write. But even amid the backlash, Brennan won victories. The authors meticulously explore how Brennan’s legal thinking and savvy lobbying led to the majority ruling in 1973’s “Roe v. Wade” decision. Brennan also succeeded in building majorities to uphold several affirmative action decisions.

This voluminous biography is far better on Brennan the legal thinker than Brennan the private man. But it’s Brennan the legal thinker who deserves our attention and there the authors succeed admirably.

During the 1960s, Brennan revolutionized the Constitution, along with Warren. And in the multidecade backlash to follow, he labored mightily (and often unsuccessfully) to protect his early achievements. “Justice Brennan” will definitely solidify this liberal champion’s central role in the Warren Court’s 1960s legal revolution. Backlash or not, Brennan made a huge mark on our Constitution – and Stern and Wermiel illuminate his legacy remarkably well.

Chuck Leddy is a freelance writer and member of the National Book Critics Circle.