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Brennan Led High Court Into New Constitutional Territory

Washington Post

After his appointment to the Supreme Court, Justice William J. Brennan formed an immediate relationship with Earl Warren, becoming a close ally and developing the legal justifications for the decisions that would result in a social revolution.

The Warren Court broadly interpreted the Constitution to provide greater protections for individual rights. It demanded, for example, that states abide by most of the provisions of the Bill of Rights, a document originally interpreted to safeguard individuals only from the hand of the federal government. Essentially a political actor of the era, the court actively addressed society’s problems, accelerating the civil rights movement, bringing fairness to reapportionment and reforming police practices.

When he saw a litigant in need, Brennan’s litmus test for offering legal protection was whether anything in the Bill of Rights explicitly prevented him from doing so. He favored the individual and put the burden on the government to show that something in the Constitution disallowed protection. (The opposite, “judicial restraint” approach asks whether anything in the Constitution or in the court’s precedents explicitly permits it to extend protection to an individual.)

Brennan and the other Warren-era judges crossed boundaries into areas previously considered off-limits for the federal courts.

Before 1962, for example, the question of whether legislative voting districts were drawn fairly was considered a “political question,” that is, the business of elected officials, not judges. But Brennan said the fairness question was constitutional, not political.

Warren would later call the ruling in Baker vs. Carr the “most important” of his time on the court. The decision broke rural America’s lock on political power and gave urban voters equal representation to fulfill the principle of one person, one vote, as articulated in later voting rights cases.

Brennan also led the court in increasing protections against sex discrimination, writing in 1972, “distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”

He had argued that government laws treating men differently from women could be justified only by a compelling governmental interest - the strictest constitutional test for a law. He failed to win a majority of his colleagues to that standard, but eventually succeeded in getting them to agree to an “intermediate” standard of scrutiny still in place.

Until these rulings, states could, and did, treat women differently from men in a variety of ways, imposing different requirements for everything from beer drinking to alimony.

In another area of equal rights, Brennan was a strong advocate of affirmative action. In the 1979 United Steelworkers of America vs. Weber, he wrote for the court that federal anti-discrimination law does not bar employers from adopting race-based affirmative action programs to boost the number of blacks in the work force and management.

In 1990, his last term, Brennan was the author of a decision upholding Congress’s preferential treatment of blacks and other racial minorities in awarding broadcast licenses. The court said the affirmative action program was justified by Congress’s interest in broadcast diversity. The case, Metro Broadcasting Inc. vs. Federal Communications Commission, was overturned in 1995 as the court increased its scrutiny of federal affirmative action programs.

When the court invalidated state death penalty laws in 1972, Brennan wrote, “Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily.” A court should determine “whether a punishment comports with human dignity. Death, quite simply, does not.”

Four years later, when a majority reinstated the death penalty with a requirement for safeguards on its imposition, Brennan and his colleague and judicial soul mate, Justice Thurgood Marshall, dissented. Toward the end of their tenures on the court (Marshall retired in 1991 and died in 1993), they were alone in opposition to capital punishment as cruel and unusual punishment.

Like many of his path-breaking opinions, Brennan’s free speech decisions often engendered political outrage. Such was the case for his majority opinions in 1989 and 1990 decisions striking down bans on flag burning. Said Brennan, “the government may not prohibit expression simply because it disagrees with the message.”

In the area of religion, Brennan favored a high wall of separation between church and state. Appeals Judge Richard Arnold of Little Rock, Ark., who as a young lawyer clerked for Brennan, once summed up Brennan’s view: “In short, religion is too important to be co-opted by the state for political or governmental ends. … As Justice Brennan understands, public and ostentatious piety can be the enemy of true religion.”

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