1:28pm

Fri November 26, 2010
Law

Justice Brennan: A Liberal Icon Gets Another Look

While the U.S. Supreme Court today is dominated by conservatives, it still abides by many of the landmark decisions written by the court's liberal icon, Justice William J. Brennan Jr., who retired in 1990 after 34 years of service.

This fall, a long-awaited biography, Justice Brennan: Liberal Champion, is on the nation's bookshelves -- an account of Brennan's life, times and influence on the nation's highest court.

For those not familiar with Brennan's incredible record, let us recapitulate. As the conservative National Review put it in writing about the liberal justice: "An examination of Brennan's opinions, and his influence upon the opinions of his colleagues, suggests that there is no individual in this country, on or off the Court, who has had a more profound and sustained impact on public policy in the United States."

Brennan's legacy is spelled out in more than 1,300 legal opinions -- from Baker v. Carr, his opinion for the court establishing the "one person, one vote" principle in legislative apportionment, to his passionate dissents on the death penalty.

For reasons that even the book's authors cannot fathom, Brennan agreed in the mid-1980s to cooperate on a biography with Stephen Wermiel, then of The Wall Street Journal and now a law professor at American University. The justice asked for nothing in return, not even editorial control. Wermiel spent four concentrated years with Brennan while the justice was still on the bench. The biographer had unfettered access to Brennan's papers, and unparalleled access to the justice. Not only was Wermiel permitted to be something of a fly on the wall in the Brennan chambers, but the justice also sat for more than 60 hours of tape-recorded interviews.

Maybe because Wermiel had so much information, he couldn't seem to write the book and put the project aside for more than a decade. Eventually, he enlisted Congressional Quarterly reporter Seth Stern as a co-author.

Getting To Five

When the co-authors sat down to talk with NPR, the conversation immediately turned to Brennan's astonishing ability to figure out how to accommodate and explicate differing views to, as the justice often put it, "get to five," meaning get a court majority.

That skill, contrary to some popular perceptions, belied the stereotype of Brennan as a glad-handing and twinkling leprechaun. Brennan's power "wasn't his affability or his political skills, but his ability to accommodate concerns and his willingness to take half a loaf now and try to build upon that later," Stern says.

Wermiel cites as an example Brennan's effort to make gender discrimination illegal under the Constitution's guarantee to equal protection of the law. "He set his sights on treating gender discrimination the same way that race discrimination had been treated under the equal protection clause," says Wermiel, but "uncharacteristically, he failed initially. He didn't get a fifth vote."

Three years later, though, he tried again, using his nimble intellect to invent a new and "significant way of the court examining gender discrimination." As Wermiel observes, "It's in some ways a brilliant end product on his part because it accomplished what he set out to accomplish and it got a majority, and it's held beautifully."

And yet, Brennan himself didn't hire female law clerks for a very long time. In 1970, when Stephen Barnett, one of his former clerks, recommended a woman, he didn't pick her, and four years later when Barnett again recommended a woman, Brennan again said no.

"But instead of backing off a second time," says author Stern, "Barnett sent him a letter and said, 'With all due respect, Justice, you're a hypocrite. ... You could be sued on the very precedents that you helped craft.' "

To Brennan's credit, Stern observes, the justice, instead of getting angry, called up Barnett and said, essentially, "You're right." He hired Marsha Berzon, the woman Barnett had recommended. She is now a federal appeals court judge in California.

Personal Views And The Role Of Religion

Brennan's interviews with Wermiel show a man who defies, too, the stereotype of the liberal justice trying to impose his own personal views on the law, for Brennan's personal views were far more conservative than what he thought the Constitution required.

Behind the scenes, for instance, he was influential in formulating the legal principles that are the basis for Roe v. Wade, the court's abortion decision. But as Brennan told Wermiel: "Independently, as a private person and not required to make a decision, I would never have agreed that abortion is proper."

Brennan also was responsible for expanding First Amendment doctrine to allow more sexually explicit material. But he hated the stuff, and said he would never tolerate it in his home.

And even though he came to firmly view the death penalty as unconstitutional, he admitted that sometimes pained him. He admitted that in his private capacity, he thought "on more than one occasion, that bastard ought to hang."

Brennan's role as the court's only Catholic justice was a matter of some anguish for him. He resented being asked at his confirmation hearing whether he could abide by the laws of the United States and not the laws set down by the pope, and he resented the role in which he was cast for 30 years as the court's house Catholic. Whether it was other justices asking him if certain language was theologically correct, or the campaign by some critics to have him excommunicated, it all upset him.

A devout Catholic, Brennan, nonetheless, had few doubts about what he saw as the constitutional imperative for a high wall of separation between church and state.

He told Wermiel that the separation is needed to avoid "the risks attendant upon too cozy a relationship between church and state, and what it's done to break up ... societies like ours, long before our own.”

"I would hold that line [of separation] very firm," he said, "maybe more firmly than a lot of people, non-Catholics as well as Catholics."

Brennan insisted repeatedly that it was his job to separate Catholic doctrine from Constitutional doctrine. "The times that he would get the angriest at me in the interviews," says Wermiel, were "when I would say to him, 'Well, how can you possibly really separate your religious faith from your personal role as a Supreme Court justice?' And he'd get frustrated and say, 'I've told you time and again, my oath is to uphold the Constitution. I don't have an oath of allegiance to my church.' "

'Introverts Pretending To Be Extroverts'

Interestingly, even in his later years on the court, when conservatives often voted to reject his view of the law, Brennan still was pulling rabbits out of the hat on occasion, persuading his colleagues, forging agreement where others could not.

Though his Irish immigrant father had been the elected fire and police commissioner of Newark, Brennan, once he became a New Jersey judge, never voted in elections. He thought it would somehow make him invested in one party or the other, and he later became deeply concerned about the tone of the confirmation hearings for Supreme Court nominee Robert Bork, an archconservative. In one of Wermiel's interviews, the justice observed that it is up to the Senate to prevent the confirmation process from being politicized.

"The whole business really ... talk about self-restraint ... has to rest on the senators who are conducting the process," Brennan remarked. "I deplore the excesses, but I don't see anything whatever that I or anyone else can do about it."

In the 1980s, Brennan graciously agreed to a lengthy series of interviews with this reporter. And while he was candid about his own shortcomings, he completely, though charmingly, resisted any introspection about himself. Wermiel said he, too, encountered that resistance.

Stern, who came to the project after Brennan's death, admits, "One of the great mysteries to me is why did this profoundly private man open up his entire life to a journalist. I mean, he had to have known the consequences of letting a journalist in the door. And yet that was his choice ... I don't know if there is an answer."

The answer, adds Stern, may have come from Brennan's daughter Nancy. "You know," she said, "we're a family of introverts pretending to be extroverts." Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.