The Legacy of Justice William J. Brennan, Jr.

On the occasion of his 91st birthday, less than three months before his death in July 1997, Justice William J. Brennan Jr wrote: "If I have drawn one lesson in my 90 years, 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.'"

In their comprehensive new biography, "Justice Brennan: Liberal Champion," based on more than 60 recorded interviews with Brennan and unprecedented access to his papers and law clerks, Seth Stern, reporter for the Congressional Quarterly, and Stephen Wermiel, Supreme Court reporter for the Wall Street Journal, conclude that Brennan is "perhaps the most influential justice of the entire twentieth century."

"Brennan interpreted the Constitution expansively to broaden rights as well as create new ones for minorities, women, the poor, and the press," the authors observe. Brennan himself would have taken exception to the notion that he "created new rights," preferring to see his task as "finding" rights within the capacious terms of the Constitution, which for him had no "static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."

According to Stern and Wermiel, Brennan's decisions "helped open the doors of the country's courthouses to citizens seeking redress from their government and ensured that votes would count equally on Election Day." While Brennan's 24 years on the High Court would have a profound impact on a wide array of legal and constitutional issues, which the authors explore in clear and accessible terms, his most lasting legacy can be seen in the areas of racial equality, the First Amendment and the death penalty.

Surveying Brennan's decisions in the field of racial equality, the authors conclude that in the wake of Brown v. Board of Education, decided two years before he joined the Court, "perhaps no justice deserves more credit for advancing the cause of the civil rights movement during the first half of the 1960s than Brennan."

His opinions "helped protect the NAACP and sit-in demonstrators, curbed the use of libel suits as a method of intimidating the press, and providing greater access to appeals in the federal courts." In doing so, Brennan "sent a clear signal to lower courts that the law could no longer be employed as a bludgeon against the civil rights movement."

Brennan's landmark opinion in New York Times v. Sullivan had a lasting impact on freedom of speech and freedom of the press. In March 1960, a group of southern ministers and several celebrities signed a full page ad in the New York Times soliciting contributions for the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South."

While the ad contained some minor factual errors and did not identify any southern officials by name, L.B. Sullivan, a city commissioner in Montgomery, Ala., took offense, filed a libel suit and won a $500,000 jury verdict. Other similar suits were filed and the Times was facing millions of dollars in potential damages, which not only threatened the paper's very survival but the willingness of other media organizations to cover the civil rights movement itself.

Despite the fact that libelous statements had long been considered beyond the protection of the First Amendment, all of the justices saw the danger to freedom of the press if government officials could punish newspapers through such huge verdicts, at least where there was no evidence of intentional falsehoods.

Chief Justice Earl Warren assigned the opinion to Brennan, who generated eight drafts in the less than two months. The unanimous decision was announced on March 9, 1964, reversing the judgment and declaring "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

According to Stern and Wermiel, Brennan's opinion stands "as one of the strongest defenses of freedom of speech ever by the Court, recognizing that even erroneous and reputation-damaging speech are part of the price the country must pay to facilitate the free exchange of ideas in a democracy."

Whereas Brennan's interpretation of the Constitution in the area of free speech and free press would carry the day while he was still on the Court, his equally principled view that the death penalty was unconstitutional would not. On April 2, 1976, Brennan told his colleagues that from that day forward he would never vote to sustain a death sentence.

In a remarkable 1,841 cases upholding the death penalty, Brennan, joined each time by Justice Thurgood Marshall, would file a dissent, noting his view that "the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth amendments."

Brennan's thinking on the death penalty began to shift 14 years earlier when Justice Arthur Goldberg circulated a research memo that condemned as "barbaric and inhuman the deliberate institutionalized taking of human life by the state." In 1971, he wrote a stinging dissent accusing the majority of the Court of "an unguided, unbridled, unreviewable exercise of naked power." He came to see state killing as a violation of human dignity, the basic premise on which he built "everything under the Constitution." In June 1972, as the Court ruled 5-4 in Furman v. Georgia that the death penalty was cruel and unusual punishment, Brennan may well have believed that his views had prevailed, but a mere four years later, in Gregg v. Georgia, the Court reinstated the death penalty. Dissenting, Brennan quoted Albert Camus: "Justice of this kind is obviously no less shocking than the crime itself, and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first."

Brennan will be remembered for developing an expansive view of the Constitution as a barrier against unwarranted government actions that invade the province of individual rights. In 1985, during the Reagan administration, Attorney General Ed Meese insisted that the Constitution was bound by the "original intent" of the men who wrote it and criticized the Supreme Court for "a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court."

Brennan responded at a symposium at Georgetown University arguing that attempting to "find legitimacy in fidelity" to the intentions of the Framers was "little more than arrogance cloaked as humility." "It is arrogant," Brennan said, "to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." He insisted that "the ultimate question must be: What do the words of the text mean in our time?"

This impressive biography sets Brennan's accomplishments in the context of his personal history, his marriage and children, his service on the New Jersey Supreme Court, his relationship with his fellow justices and his commitment to the rule of law.

In 1966, Chief Justice Warren offered this tribute to his close friend and ally: "In the entire history of the Court, it would be difficult to name another justice who wrote more important opinions in his first ten years than has he. As a colleague, he leaves nothing to be desired. Friendly and buoyant in spirit, a prodigious worker and a master craftsman, he is a unifying influence on the bench and in the conference room."

Brennan would serve until 1991, completing 34 terms on the Court. Looking back, he considered his opinion in the little known case of Goldberg v. Kelly as perhaps the proudest achievement of his entire tenure on the Court. New York had terminated welfare benefits to John Kelly, a disabled African-American homeless welfare recipient, without notice and an opportunity to be heard. Brennan accumulated a majority of the Court to hold that in such circumstances welfare recipients were entitled to written notice, a hearing before an impartial decision maker, the right to bring a lawyer and cross examine witnesses, and the right to a written ruling providing reasons for the decision.

Brennan would later say that "Goldberg can be seen as injecting passion into a system whose abstract rationality had led it astray."

"Justice Brennan: Liberal Champion," by Seth Stern and Stephen Wermiel, Houghton Mifflin Harcourt, Boston/New York 2010, 674 pages, $35.00.

Stephen F. Rohde, a constitutional lawyer, is the author of "American Words of Freedom" and "Freedom of Assembly."