Brennan, William

William J. Brennan Jr. ( 1906–1997 ) served as a justice of the US Supreme Court from 1956 to 1990. During his tenure he wrote some of the most important decisions expanding the civil rights and civil liberties of Americans through broad interpretation of both the US Constitution and federal laws. These decisions made him one of the most influential justices of the twentieth century.

Brennan was born in Newark, New Jersey, the son of Irish immigrant parents. His father was a brewery worker who became a popular labor leader and was elected a city commissioner of Newark, in which capacity he ran the police and fire departments during the 1920s. Brennan attended the Wharton School at the University of Pennsylvania and then Harvard Law School. Although his father had spent more than a decade in public service until his death in 1930, Brennan chose to practice at a private Newark law firm, where he was the first Catholic lawyer and where he represented companies in their labor relations with their employees. He soon demonstrated his skill with clients and his talent for negotiation and litigation.

He rose quickly in the firm before taking several years out during World War II to serve in the US Army, where he worked on wartime manpower and industrial relations issues. Brennan returned to the firm as a partner, busier than ever with the labor issues created by industrial growth. The long hours took a toll on his health and his family life, and the advocacy for management wore him down as well.

THE BENCH

After participating in reform of the New Jersey court system during a constitutional convention in 1947, Brennan was enticed, despite a significant pay cut, to become a trial judge in 1949, presiding in Hudson County Superior Court in Jersey City. After only eighteen months, he was promoted to the appellate division of the superior court, and in 1952 he was elevated again to the New Jersey Supreme Court. Throughout this period, he had earned a reputation for hard work, integrity, intelligence, and clear writing and thinking. He was also very gregarious, making a point to get along and work well with everyone he met ( see Stern and Wermiel 2010, 52 ). These qualities would become essential tools of his career in public service.

On the New Jersey Supreme Court, Brennan mostly handled cases involving state law or arising under the state constitution. The legendary liberalism with which he later approached the US Constitution was not much in evidence, with the exception of a handful of opinions. He soon became a trusted lieutenant of the influential Chief Justice Arthur Vanderbilt ( 1888–1957 ). Brennan traveled the state advocating for court reforms that would speed up and make more efficient the handling of cases, prime goals of Vanderbilt's tenure. His reputation expanded outside of New Jersey and brought him to the attention of the federal Justice Department under President Dwight Eisenhower ( 1890–1969 ).

Brennan also was known for taking on Senator Joseph McCarthy ( 1908–1957 ) of Wisconsin. In several speeches in 1954 and 1955, Brennan did not mention the Communist-hunting senator by name but criticized investigative tactics that he said were “reminiscent of the Salem witch hunts.” Later, during Brennan's confirmation hearing for the US Supreme Court, McCarthy appeared at the Senate Judiciary Committee and questioned Brennan, but Brennan avoided confrontation and was subsequently confirmed.

When Justice Sherman Minton ( 1890–1965 ) retired, Eisenhower, a Republican, picked Brennan, a Democrat, to replace him, hoping to shore up support among Democratic and independent voters for Eisenhower's ultimately successful reelection bid in 1956. The nomination was more about electoral politics and less about the direction of the Supreme Court. Brennan took his seat in October 1956 during a Senate recess and was not confirmed by the Senate until March 1957, approved by a voice vote.

THE SUPREME COURT

As a justice Brennan made his mark on a wide array of legal issues, including privacy, freedom of speech, religious freedom, school desegregation, race and gender discrimination, affirmative action, the death penalty, government account-ability, and freedom of the press. In addition to influencing so many substantive areas of the law, he became the leading philosophical proponent of two important views about the Constitution. First, he believed that the Constitution must be adapted to contemporary societal needs and challenges and not read according to notions of what the Framers originally intended. This put him at odds with conservative proponents of “original intent” such as former Attorney General Edwin Meese and Justice Antonin Scalia, with whom he served for four Court terms. The second important contribution was Brennan's view of the essential purpose of the Constitution, which he described as “a sublime oration on the dignity of man” ( Brennan 1986, 438 ). Many of his decisions gave voice to that vision of the values advanced by the Constitution.




William Brennan, associate justice of the US Supreme Court, 1956–1990.





William Brennan, associate justice of the US Supreme Court, 1956–1990.
© LIBRARY OF CONGRESS PRINTS AND PHOTOGRAPHS DIVISION (LC-USZ62-60138)

CIVIL LIBERTIES

Brennan wrote decisions of major importance protecting freedom of speech. In New York Times v. Sullivan, 376 U.S. 254 ( 1964 ), he broadened substantially the First Amendment protection afforded to criticism of government, making it much harder for public officials to sue for damages under state libel laws, even when erroneous information is reported about them. Near the end of his tenure, Brennan wrote in Texas v. Johnson, 491 U.S. 397 ( 1989 ), that burning the American flag as a form of protest is a form of protected free speech. The theme throughout his tenure was that speech cannot be banned or prosecuted simply because it is unpopular or offensive.

Brennan also became the Court's most ardent advocate for separation of church and state under the establishment clause, joining the Court's rulings prohibiting formal, organized prayer in public schools and writing a number of decisions restricting government aid to religious schools. For thirty years, Brennan was the only Catholic justice and bore the brunt of criticism for his determined separationist view. Brennan also wrote an important opinion calling for government accommodation of individual religious practices. His opinion in Sherbert v. Verner, 374 U.S. 398 ( 1963 ), shaped the meaning of the free exercise clause for a quarter-century. The Sherbert test enunciated in Brennan's opinion is this: if a person acts on a sincere religious belief and if government action places a substantial burden on that person's action, the government must demonstrate not only a compelling interest in doing so but must use the least restrictive means in carrying out that interest.

Brennan's legacy has met with greater success in the free speech realm than in the religion arena. His view that the First Amendment protects sometimes offensive or unwanted speech has become well-established doctrine. His views about separation of church and state and about accommodating individual religious practices were eroded by subsequent rulings.

EQUALITY

Brennan was not on the Court for the decision in Brown v. Board of Education, 347. U.S. 483 ( 1954 ), but he wrote a number of other major decisions on discrimination. Although the decision in Cooper v. Aaron, 358 U.S. 1 ( 1958 ), is the only one ever signed as if it had been written by all nine justices, its principal author was Brennan, who ordered the Little Rock, Arkansas, schools to comply with the desegregation mandate of Brown ( see Stern and Wermiel 2010, 145–52 ). A decade later Brennan produced the decision in Green v. County School Board of New Kent County, 391 U.S. 430 ( 1968 ), reflecting the Court's clear impatience with the slow progress of school desegregation and urging immediate significant progress.

Brennan led the Court to adopt the view that the evils of government discrimination based on gender require careful examination in the courts and can survive only with substantial justification. His decision in Craig v. Boren, 429 U.S. 190 ( 1976 ), remains the standard for assessing gender bias under the equal protection clause. Brennan was also the Court's leading defender of affirmative action based on race and gender. Although the Court has cut back substantially on when affirmative action is appropriate, the foundation Brennan laid still helps to shore up the principle of using race or gender preferences to overcome a legacy of discrimination.

OTHER RIGHTS

Brennan was the leader on the Court of the view that the death penalty inherently violated the Eighth Amendment ban on cruel and unusual punishment. He prevailed temporarily when the Court invalidated the death penalty in Furman v. Georgia, 408 U.S. 238 ( 1972 ), but continued to dissent regularly from death sentences after the Court reinstated the death penalty in Gregg v. Georgia, 428 U.S. 153 ( 1976 ).

With his decision in Baker v. Carr, 369 U.S. 186 ( 1962 ), which held that questions about the malapportionment of electoral districts in the states raised significant equal protection clause issues and could be decided by federal courts, Brennan left his mark on voting rights. The ruling opened federal courthouse doors for the first time to reapportionment lawsuits. Another area of significant impact for Brennan was procedural process. With his decision in Goldberg v. Kelly, 397 U.S. 254 ( 1970 ), he required government to provide fair procedures such as notice and a hearing when denying or revoking government benefits. Brennan also contributed significantly to the development of a constitutional right to privacy, ruling in Eisenstadt v. Baird, 405 U.S. 438 ( 1972 ), that unmarried individuals had the same right to use contraceptives that married persons do.

Brennan had another profound influence on the American constitutional system through his publication of “State Constitutions and the Protection of Individual Rights” in the Harvard Law Review in 1977. Originally written as a speech, the article observed that, as the US Supreme Court took a narrower view of individual rights, civil rights and civil liberties cases might be brought into state courts invoking state constitutions, which often could be interpreted to provide more protection than the US Constitution. The suggestions in the article took hold in many states and offered a new kind of federalism that differed from the traditional advocacy of states' rights as a check on the power of the federal government.

Brennan retired from the Court in 1990 after suffering a mild stroke and died in 1997. During thirty-four terms of the Supreme Court, Brennan left an indelible legacy of protections for civil rights and civil liberties. While some of his decisions have been curtailed or even overruled, his legacy remains a strong one in the areas of free speech, due process, and equality.

SEE ALSO Baker v. Carr ; Freedom of Religion: Establishment ; Freedom of Religion: Free Exercise ; Freedom of Speech ; Freedom of the Press ; Rehnquist, William ; State Court Judges, Twentieth Century ; Supreme Court of the United States ; Warren, Earl .

BIBLIOGRAPHY

Brennan, William J., Jr. “State Constitutions and the Protection of Individual Rights.” Harvard Law Review 90, no. 3 (1977): 489–504.

Brennan, William J., Jr. “The Constitution of the United States: Contemporary Ratification.” South Texas Law Review 27, no. 4 (1986): 433–45.

Brennan, William J., IV. “Remembering Justice Brennan: A Biographical Sketch.” Washburn Law Journal 37, no. 1 (1997–98): vii–xiv.

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

Stern, Seth, and Stephen Wermiel. Justice Brennan: Liberal Champion. Boston: Houghton Mifflin Harcourt, 2010.

Wermiel, Stephen. “Law and Human Dignity: The Judicial Soul of Justice Brennan.” William and Mary Bill of Rights Journal 7, no. 1 (1998): 223–39.

Stephen Wermiel
Washington College of Law American University