Books,
Law Office Management
Nov. 2, 2010
Justice Brennan: Liberal Champion
This reader-friendly biography by Seth Stern and Stephen Wermiel is a lesson in what it takes to produce decisions by nine justices of diverse political and jurisprudential hues: as Brennan famously put it, how to count to five.
Jon B. Eisenberg
Email: jon@eisenbergappeals.com
Jon is a retired appellate attorney and the author of California Practice Guide: Civil Appeals and Writs.
United States Supreme Court Justice William J. Brennan Jr. has been called "probably the most influential justice" of the 20th century by none other than Justice Antonin Scalia. Brennan himself "confidently predict[ed] he had built up a considerable legacy that would be difficult to undo," according to biographers Seth Stern and Stephen Wermiel. In Justice Brennan: Liberal Champion, we learn how Brennan achieved that legacy - by force of personality, sheer longevity, dedication to notions of human dignity, and above all else, coalition-building. This reader-friendly biography, which is as engaging as the man it portrays, is a lesson in what it takes to produce decisions by nine justices of diverse political and jurisprudential hues: as Brennan famously put it, how to count to five. According to the authors, Brennan's genius lay in accommodation and compromise. He was willing to do whatever it took to produce a majority and achieve a desired result, even if the majority opinion he wrote "was not necessarily stylish" or, in the view of some of his clerks, lacked logical clarity and internal consistency. As a former clerk for Justice William O. Douglas put it, Brennan was willing "to say virtually anything (or nothing) if a key member of his majority requested it, so long as the opinion reached the right outcome." Yet even if the opinions were not always perfect in style or reasoning, Brennan's jurisprudential achievements were spectacular-and remarkably enduring, considering the Supreme Court's gradual turn to the right during Brennan's tenure (1956?1990) and into the present. As Brennan's colleagues on the bench from the 1950s and 1960s were replaced by Republican appointees in the 1970s and 1980s, he remained able to win them over, time and again - struggling successfully against the conservative tide for longer than anyone expected. Stern and Wermiel show us how much has changed since Brennan's day. Brennan was Catholic, which was an issue when he was appointed in 1956, a time when Catholics faced considerable bias as well as suspicions of divided loyalties; today, six Catholics sit on the Supreme Court. Even so, Brennan's confirmation hearing was relatively tame and required no advance preparation, in contrast to today's drawn-out Kabuki dramas. And, of course, the liberalism of the Warren Court has become a relic of the past. As the authors recount Brennan's many ground-breaking decisions, some readers will feel nostalgia for a bygone era, while others will say good riddance. Some things, however, seem never to change. The charge of "judicial activism," which bloomed in the 1950s, remains as much a hot button today as when it was leveled against Brennan. In a 1969 speech described in the book, the justice defended his jurisprudence: "Too often, he said, the choice had been between the Court confronting and solving a broad social issue or 'no one doing it at all. ... If the legislature simply cannot or does not act to correct an unconstitutional status quo, the Court, despite all its incapacities, must finally act to do so.' " Needless to say, no Supreme Court hopeful today would dare be so direct. "If I have drawn one lesson in my 90 years," Brennan declared on his 90th birthday, in 1996, "it is this: 'To strike another blow for freedom allows a man to walk a little taller and raise his head a little higher. And while he can, he must.' " Politics aside, those words should inspire any lawyer. Jon B. Eisenberg is an appellate lawyer in Oakland and principal author of California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2010).
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