Making History

The Supreme Court of the United States begins its 1986-87 term today with a new chief justice, a new associate justice and a docket crowded with social and legal issues that are as thorny as they are important. Despite the elevation of William H. Rehnquist and the addition of Antonin Scalia, the basic conservative-centrist-liberal makeup of the court has not changed. Unless Rehnquist and Scalia prove especially persuasive in drawing moderate justices to their peculiar views, the court is likely to continue moving back and forth between broadening rights and constricting them, between favoring individuals and favoring authorities. As he has been for the last several years, Justice Lewis F. Powell Jr. is likely to continue to be one of the most powerful men in America, holding the decisive fifth vote that determines the future of constitutional law.

At the opposite end of the political spectrum from Rehnquist and Scalia is the court’s senior member, Justice William J. Brennan Jr., who at 80 years old has emerged as the Oliver Wendell Holmes Jr. or the Louis D. Brandeis of our time. He and Justice Thurgood Marshall, who is 78, are the consistent and unfailing champions of the highest American ideals of justice. Whatever the issue--obscenity, capital punishment, the rights of criminal defendants, the rights of racial minorities, the rights of women, the rights of the despised--Brennan is an eloquent spokesman for dignity and freedom.

In his first term on the court three decades ago, Brennan wrote 16 majority opinions without a single dissent. Now his legal views are more often cast in dissenting opinions than in speaking for the majority. But he has not wavered. In a speech to the Hastings College of Law in San Francisco last year Brennan explained, “Dissents contribute to the integrity of the process, not only by directing attention to perceived difficulties with the majority’s opinion, but . . . also by contributing to the marketplace of ideas . . . . A dissent challenges the reasoning of the majority, tests its authority and establishes a benchmark against which the majority’s reasoning can continue to be evaluated, and perhaps, in time, superseded.”

Just as Holmes, the Great Dissenter, changed his views while on the court, so has Brennan. In 1957 Brennan wrote the court’s opinion in Roth vs. United States, which held that obscenity was not protected by the First Amendment. But by 1973 he had changed his mind and explicitly rejected the Roth opinion. “The First and 14th amendments prohibit the state and federal governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents,” he wrote in dissent in Paris Adult Theatre vs. Slayton.

For nearly 15 years Brennan and Marshall have been staunch opponents of the death penalty--first in the majority, but more recently in dissent. In 1972 Brennan wrote that capital punishment “involves by its very nature a denial of the executed person’s humanity” and “is uniquely degrading to human dignity.” He has continued to restate this view in every death-penalty case to come before the court. There will be another one this term.

Over the years Brennan has argued in dissent that education is a fundamental right protected by the Constitution, that a state law granting lifetime preference to veterans in Civil Service jobs discriminates against women, that a law sending three-time losers to jail for life is unconstitutional, that job-qualification tests that blacks fail disproportionately are unconstitutional, that due process must be respected in full detail and that police searches must be initiated and conducted with utmost care.

Just as Holmes’ and Brandeis’ dissenting opinions were eventually accepted as the law, so, we think, will Brennan’s be. He is a prophet with honor.

As Brennan told the Hastings law school, “Writing . . . is not an egotistic act--it is duty. Saying ‘listen to me, see it my way, change your mind’ is not self-indulgence--it is very hard work that we cannot shirk.”

Brennan and Marshall. In the sweep of history, they are among the protectors and guarantors of enlightenment in the law. We wish them long lives and Godspeed.