Brennan, Near 80, Holds Firm to Court Post

Justice William J. Brennan Jr., just a week away from his 80th birthday, said Friday that he has no intention of stepping down from the Supreme Court--and that a recent medical examination indicates he is in “first-rate” physical condition.

“As long as the good Lord lets me stay here, you can expect to see me sitting right where I am now,” he said in a rare meeting with reporters in his chambers at the court.

Brennan, now in his 30th year on the court and its senior member, will turn 80 next Friday, marking only the ninth time a justice has served at that age or beyond in court history. Oliver Wendell Holmes did not leave the court until he was 90.

Wide Range of Subjects

Covering subjects ranging from constitutional theory to the absence of major-league baseball from Washington, Brennan expressed hope that the court someday would ban the death penalty, bristled at criticism that he is a “judicial activist” and reiterated his opposition to Chief Justice Warren E. Burger’s proposal to create a new judicial panel to ease the Supreme Court’s caseload.

Brennan’s emphatic intention to stay on the job comes amid continuing speculation about possible retirements from the court. The departure of a judicial liberal such as Brennan could open the way for President Reagan to name a conservative replacement, thus shifting the philosophical makeup of the court. Such a change could affect rulings on abortion, criminal procedure and church and state relations, among others.

At present, five of the justices are 77 or older--and next November, when the average age of the nine court members reaches 72, the current court will become the “oldest” in history, according to recent calculations.

Asked if he had given consideration to retirement, Brennan raised his voice as he answered: “Absolutely none whatsoever.”

Cleared by Physician

The justice said he was examined Thursday by Dr. Freeman Carey, attending physician for the court. “He gave me a first-rate report,” Brennan said, “Everything was just fine.” Brennan was treated eight years ago for a cancerous tumor in his throat but has reported no serious illness since.

Brennan acknowledged with a grin that he wished he were “a lot younger,” but added: “I must say I don’t feel any different than I did at 70 or 60. . . . I don’t think (age) has affected me in terms of my slowing down any.”

The justice also discussed these subjects:

--JUDICIAL ACTIVISM. Brennan refused to accept the label of “judicial activist”--the term conservative critics use for liberal judges like Brennan whom they accuse of shaping the law to achieve social reforms they say should be left to legislators.

“That term is rather inappropriate,” he said. “You have to appreciate that we don’t go out looking for issues to decide. When we are presented an issue that requires an interpretation or application of the Constitution, then it’s our responsibility to provide it.”

Critics who label judges as “activists” are merely “expressing disagreement with the results” of a court decision, Brennan said.

--THE WARREN COURT. Brennan, now a frequent dissenter, said he did not think there had been any “drastic retreats” by the Burger court from major decisions in which he participated as a member of the court majority under Chief Justice Earl Warren. One exception, he said, might be what he sees as the weakening of Fourth Amendment guarantees against unreasonable search and seizure.

He said that he sees “no suggestion” that the Burger court would overrule Miranda vs. Arizona, a 1966 Warren Court landmark requiring police to inform suspects of their rights to silence and counsel before interrogation.

--NEW APPEALS COURT. He expressed opposition to Burger’s proposal to create a special panel of federal judges who would hear cases at the direction of the Supreme Court. Brennan noted that under the plan, the justices would still be required to review cases before referring them to such a panel--and then review them again if the panel’s decision were appealed to the Supreme Court. He said he could not see how that would ease the court’s caseload.

--DEATH PENALTY. Despite the court’s reinstatement of the death penalty in 1976, Brennan voiced hope that the justices someday would hold capital punishment unconstitutional. “I live in the hope . . . that the court will conclude that (the death penalty) is indeed in every instance cruel and unusual punishment in violation of the Eighth Amendment,” he said.

Brennan, along with Justice Thurgood Marshall, opposes the death penalty in all circumstances, dissenting in every case in which the court upholds a capital sentence.

--BASEBALL. Noting that Justices Harry A. Blackmun, John Paul Stevens and Byron R. White all are baseball fans like himself, Brennan lamented the absence of a big-league franchise in the nation’s capital. “It’s too bad,” he said. “Unless you go to Baltimore you can’t see a baseball game around here.”

--SANDRA DAY O’CONNOR. Brennan praised Justice Sandra Day O’Connor as a “first-rate lawyer” and “a delightful person to work with.” O’Connor, named by Reagan to the court in 1981, is the only new member of the court in the last decade and the only female justice. “We don’t think of one another on the basis of gender,” he said. “We’re just all justices.”

--CAMERAS IN COURT. He said that properly controlled radio and television broadcasting should be permitted at the Supreme Court--an idea opposed by Burger in the past. The chief justice last week said he might favor easing the ban on electronic news coverage at the court if proceedings were broadcast in their entirety, with no reproduction as segments on news shows. “I expect the day will come when we allow it,” Brennan said.