July 25, 1997 in Nation/World

Voice Of Conscience, Brennan Dies At 91 Liberal Supreme Court Justice Championed Individual Freedom

David G. Savage Los Angeles Times
 

Retired Supreme Court Justice William J. Brennan Jr., one of the legal giants of the 20th century and the architect of rulings that expanded civil rights, the freedom of speech and the right to abortion, died Thursday at age 91.

After a 34-year career on the high court, Brennan stepped down in 1990 after suffering a slight stroke. He had recovered slowly from a broken hip last November, and died in a nursing home in suburban Arlington, Va.

President Clinton called Brennan “one of the finest and most influential jurists in our nation’s history” and “the staunchest, most effective defender of individual freedom.”

“America has lost a great justice,” said Attorney General Janet Reno. “Justice Brennan stood up for people who had no voice. He devoted his long, rich life to helping the American justice system live up to its ideals.”

California Supreme Court Justice Stanley Mosk called Brennan “the greatest Supreme Court justice in modern times.”

Though largely unknown to the general public, Brennan had an extraordinary influence on the law. He brought both intellectual power and personal charm to the task.

He fiercely believed in the idea that the Constitution was intended to protect the dignity of all persons, no matter what their rank or standing. Through more than 1,200 opinions over three decades, he wrote that principle into the law.

He also had a sunny disposition that often won over his far-more conservative colleagues. Unlike the other renowned liberals such as short-tempered William O. Douglas or cranky Thurgood Marshall, Brennan was a beloved figure at the court.

With a twinkling eye and a gentle, two-fisted handshake, Brennan resembled a little leprechaun who took delight in everyone he met. Janitors and secretaries at the high court said the justice recalled their sons and daughters and grandsons and granddaughters. Law clerks became part of his extended family too.

But his Irish charm had its greatest impact in the small circle of nine justices. Brennan understood the politics of the court and played them better than anyone had before - or anyone has since.

What’s the most important rule in the Supreme Court, he would ask his clerks. Holding up his hand, fingers outstretched, he then explained the “rule of 5.”

“It takes five votes to do anything around here,” he would say. Over many years, Brennan astounded lawyers and court observers with his skill in putting together five-vote majorities.

Throughout Brennan’s career, he championed the underdog and insisted that the Bill of Rights protected the rights of all individuals, whether convicted murderers, flag burners or religious extremists. He wrote opinions defending the rights of the poor, immigrants, death-row inmates, political protesters, welfare recipients, blacks who had been denied jobs and whites who had fired from jobs.

During the 1960s, Brennan helped lead the legal revolution that made the Constitution a reality in everyday American life.

Until the 1950s, the Bill of Rights stood mostly as set of ideals and its provisions limited only the federal government. For example, if an FBI agent broke into a home without a search warrant, he could be charged with violating the homeowner’s Fourth Amendment right against “unreasonable searches and seizures.” But that limitation was not applied to local deputies or state troopers.

In 1961, however, the Supreme Court changed directions and ruled that the Fourth Amendment applies to all public officials. This decision in Mapp vs. Ohio triggered a series of rulings that extended the legal protections in the Bill of Rights, such as the right to a lawyer and protections against forced self-incrimination or “cruel and unusual punishments.”

Until 1964, the First Amendment did not protect newspapers and other media from damaging libel verdicts in state courts. An Alabama jury had awarded a local sheriff a $500,000 damage verdict against the New York Times because an advertisement paid for by the NAACP was deemed to be critical of the sheriff.

Reversing that decision in the landmark New York Times vs. Sullivan ruling, Brennan extended the freedom of the press to limit state libel verdicts, and said the First Amendment was intended to encourage “uninhibited, robust and wide-open” debate in America.

He had joined the court soon after the 1954 Brown vs. Board of Education decision declared segregation unconstitutional, but Brennan wrote key opinions in the years afterward that put that principle into practice. His 1968 opinion said once-segregated school districts had an “affirmative duty” to desegregate their classrooms. That statement led to court-ordered busing - and bitter controversy - in many cities around the nation.

In the 1970s, he led the successful move to outlaw sex discrimination and to strengthen women’s rights. He also led the effort to permit affirmative action for minorities in colleges and workplaces.

His 1972 opinion striking down a Massachusetts law that banned the sale of contraceptives paved the way for the Roe vs. Wade ruling on abortion the following year.

“If the right to privacy means anything,” Brennan wrote, “it is the right of the individual, married or single, to be free from unwanted governmental intrusions into matters so fundamentally affecting a person as whether to bear or beget a child.”

He was born William Joseph Brennan Jr. on April 25, 1906, the second of eight children in an Irish-Catholic family in Newark, N.J. His father, an Irish immigrant, worked first as a stoker of the fires at a brewery, but rose to become a prominent labor leader and a city council member.

Young Brennan graduated from the University of Pennsylvania in 1928 and from the Harvard Law School in 1931, beginning his law practice during the Depression. After a decade in private practice and service in the Army, he was appointed a state judge and moved up to the New Jersey Supreme Court.

In late September 1956, the 50-year-old jurist was asked to come to Washington, ostensibly to discuss a recent speech on streamlining the courts. To his surprise, Republican President Eisenhower had decided to appoint Brennan, a Democrat, to fill a vacancy on the Supreme Court.

In the midst of the presidential campaign, the nomination drew little notice. Time magazine mentioned it in a small box entitled: “A Happy Irishman.”

The new justice dampened expectations too, comparing himself “to the mule entered in the Kentucky Derby. I don’t expect to distinguish myself, but I do expect to benefit from the association,” he said.

His prediction aside, Brennan soon distinguished himself. Earl Warren commented of Brennan: “In the entire history of the Court, it would be difficult to name another Justice who wrote more important opinions.”

In a 1985 speech, Brennan forcefully countered conservatives who had called for the justices to shun controversies and instead rely on the “original intent” of the 200-year old document.

“The genius of the Constitution rests not in any 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,” he said. “The Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it and the fidelity to live by it.”

On June 27, 1990, in what proved to be his last day on the bench, the 84-year Brennan, speaking in a graveled voice, spoke for a 5-4 majority that upheld federal affirmative action rules in government contracting.

Three weeks later, the justice collapsed in the Newark, N.J., airport. In a note to President Bush, he said he could no longer keep up with “the strenuous demands of court work,” but hoped his decisions expanding the Bill of Rights would survive.

“This legacy can and will withstand the test of time,” he wrote.

MEMO: This sidebar appeared with the story: IN HIS OWN WORDS “Due process asks whether government has treated someone fairly, whether individual dignity has been honored, whether the worth of an individual has been acknowledged. Officials cannot always silence these questions solely by pointing to rational action taken according to standard rules. They must plumb their conduct more deeply, seeking answers in the more complex equations of human nature and experience. “In our own time, attention to experience may signal that the greatest threat to due process principles is formal reason severed from the insights of passion.” William Brennan In a 1987 speech to the Association of the Bar of the City of New York, he spoke of his vision of the Constitution and the qualities of judging needed to interpret it.

This sidebar appeared with the story: IN HIS OWN WORDS “Due process asks whether government has treated someone fairly, whether individual dignity has been honored, whether the worth of an individual has been acknowledged. Officials cannot always silence these questions solely by pointing to rational action taken according to standard rules. They must plumb their conduct more deeply, seeking answers in the more complex equations of human nature and experience. “In our own time, attention to experience may signal that the greatest threat to due process principles is formal reason severed from the insights of passion.” William Brennan In a 1987 speech to the Association of the Bar of the City of New York, he spoke of his vision of the Constitution and the qualities of judging needed to interpret it.


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