Justice William J. Brennan Jr. : A Lifetime of Ensuring That Law Embraces Justice

Justice William J. Brennan Jr. has long served as the intellectual leader of the Supreme Court’s liberal wing. He regularly espouses a broad view of the Bill of Rights, one that expands individual liberties and civil rights and gives the judiciary broad power to limit the authority of government officials.

Brennan will celebrate his 84th birthday on Wednesday. When he first joined the Supreme Court in October, 1956, President George Bush was a Texas oilman and Vice President Dan Quayle was 9 years old. Brennan has now been serving on the court for nearly 34 years, only two years short of the record for longevity set by Justice William O. Douglas.

During the 1960s, under Chief Justice Earl Warren, Brennan voted regularly with the majority as the court handed down a startling series of decisions broadening the rights of criminal defendants and protecting racial minorities. In 1962, for example, Brennan was the author of Baker vs. Carr, the milestone decision in which the Supreme Court ruled, for the first time, that federal courts could review legislative reapportionment disputes applying the principle of “one-man, one-vote.” Brennan is now recognized as the politically skilled insider responsible for holding together the Warren court’s majority--which included such egocentric personalities as Douglas and Justice Hugo L. Black.

After Warren retired in 1969, Brennan increasingly took on a new role: protector of the Warren court’s legacy. Sometimes, surprisingly, Brennan has been able to fashion new majorities; on other occasions, particularly by the late 1980s, he found himself in the less-accustomed role of a dissenter. Nowadays, Brennan invokes on behalf of Warren court rulings the principle that Warren and his colleagues so often boldly overlooked three decades ago-- stare decisis (“let the decision stand”), the rule that the court should give great weight to its own precedents.

Question: It’s now been more than 20 years since Chief Justice Earl Warren retired. As soon as he retired there were predictions that the precedents of the Warren court were going to be reversed or overturned. Those predictions were made all through the 1970s and in the 1980s, as the Burger court gave way to the Rehnquist court. To what extent do you think that’s happened?

Answer: I don’t think it’s happened, really, at all. There’s been a good deal of trimming of precedents, but there hasn’t been any of what I would call major Warren-court precedents overruled as yet.

Q: You say ‘as yet.’

A: All it takes is five votes to overrule a precedent--if there are five who mean to do it that way. And that hasn’t happened as yet. It could happen tomorrow. It could happen any time, and if you believe some of the things that the media are saying, it’s inevitable. I don’t accept that yet, until I’ve seen it. There are a lot of restraints on overruling, as you know--the doctrine of stare decisis . . . . And many of the (Warren court) precedents that may be overruled are getting old. And it’s usually the case that stare decisis has very real clout, the older a precedent gets.

Q: If you had to explain or define the legacy of the Warren court, how would you do it?

A: I suppose the emphasis of Warren court precedents has as a common base an application of the Constitution to enhance and further human dignity and individual rights. Rather than, as was the case for a long while, to have the court put its clout on the protection of interests other than the interests of the individual. The whole period when the court favored industry, commerce, corporations if you please, to further their objectives rather than the objectives of individual citizens.

Q: Can that legacy survive the next decade? The whole public mood seems to have shifted to a concern with victims’ rights, victims of crime.

A: That’s what I say, it may happen, but it hasn’t happened yet. It could happen, of course. Just as the emphasis by the Warren court (on individual rights) happened. It can happen.

Q: You are the senior justice here. After Justice Rehnquist took over as chief justice (in 1986), did you offer him any advice?

A: I offer him advice every time I write an opinion. We very often had different views, as you know, before he became chief justice. I must say that he tries, I think, harder now to get acceptance of his view to the end of having a majority, than he used to try when he was pretty much a lone dissenter. That’s my sense. And I think he has succeeded, by accommodating other views, accommodating his views to those of others. There are a few cases, I’m sure, where his effort has succeeded in that respect . . . .

Q: Can it still be said that the court is in the forefront of protecting individual rights?

A: I think on the contrary, the court is retreating, particularly in the Fourth Amendment area, from the protection of individual rights.

Q: Do you think the court will ever come around to your view that the death penalty is unconstitutional?

A: Perhaps it is only a hope. Because certainly polls these days indicate very little support for (abolishing) the death penalty. But I’ve always thought, and still do, that the death penalty . . . is cruel and unusual punishment in violation of the Eighth Amendment. And I’ve always expressed the thought that this, of all nations in the Free World, can’t keep up its support for the death penalty against the arguments that do not favor it, the constitutional arguments.

Right now, that’s not the case. Right now, the general public certainly has been quite supportive of the death penalty. I think that’s going to change. Perhaps, as I said, that’s a hope. But I feel strongly that inevitably it must. After all, I gather there isn’t another of the free nations of the world that has the death penalty. With the new emerging nations in Europe and South America, I’m not quite sure whether that’s as true as it used to be. Maybe they can’t be said as yet to have joined France and England and Italy and the other nations of Europe that have abandoned the death penalty.

Q: Do you think the nation is much closer to the goal of racial equality than it was, say, 20 or 30 years ago?

A: I wouldn’t say much closer. I’d say closer. No question it’s closer. But no, I think the cancer of bigotry, of racial bigotry, still flourishes. And a lot more, a lot more, has to be done before we are going to eradicate it.

Q: Are swings of the pendulum at the court inevitable?

A: I would think so. It seems to me what’s been inevitable, for our whole society in our whole 200 years of existence, has been that with membership changes (on the court), with people’s attitudes changing, you’re bound to get swings.

Now the Warren court era is a swing. I think it was, it lasted--well, it’s not over by any means yet, so I would rather put it has already lasted--about 40 or 50 years. That’s what happened in the old Hughes era, the era of the Nine Old Men, that lasted about 50-odd years. And with the same changes in membership, inevitably we’re going to have changes in majority viewpoint . . . .

Perhaps that’s the very nature of our democracy, that as a democracy we don’t stand still. We’re always pushing ahead, to goals that we’ve had from our beginning. And again, in individual rights and individual liberties, we’ll get back to them in time. I think even the Fourth Amendment--in time, the court will repair the damage it has done very recently . . . .

Q: Is there any one decision, or couple of decisions, you want to be remembered for?

A: You know, I’ve been asked that. Everybody who ever talks to me usually asks that question. I’ll give you the same answer I’ve given everybody else: That’s like asking me which of my children is my favorite.

Q: Well you’ve got a lot of children then.

A: (Laughter.) About 1,200, I think there have been--so somebody told me recently. That’s the number of opinions I’ve delivered.

Q: What about Roe vs. Wade? That was not your opinion, but when you look back on it now, is there anything that should have been done differently?

A: You don’t want me to talk about Roe vs. Wade. I’m not going to.

Q: What about retirement? I know there was a point in the late ‘70s when there were stories you were thinking about it.

A: That was when my first wife, Marjorie, was terribly ill. No, (since then) I’ve had no reason to think of retirement. Recently, my doctor told me I’d better not make any speeches or other outside activities, I better just stick to my work here, because I have some--I’ll be 84 . . . and I apparently have some of the ills that afflict 84-year-olds, and therefore I’d better pace myself better than I’ve been pacing myself.

Recently, for example, I’ve cancelled out 12 commitments I’d made. I was going to do a follow-up to the lecture at Brown I did 25 years ago. And I was going to go to Austria to teach for a month. I was going to go to Ireland for a visit. And I cancelled every one of those. Right now, my wife and I are busily trying to figure out what in hell we’re going to do with ourselves this summer.

Q: Any serious problem?

A: Well, serious enough to have the doctor suggest I better quit--not quit the court, but quit outside activities. And I followed and am following that advice.

Q: When Burger first came here, he suggested there should be some kind of retirement age for justices.

A: I didn’t know that. Did he? Well, I’m not unfamiliar with this (idea). When I sat on the New Jersey courts, I was the, I expect, the most ardent proponent of the constitutional provision which mandatorily retired not only justices of the (New Jersey) Supreme Court, but judges of the Superior Court at age 70.

And I got to be age 70, and I went to New Jersey to make an address to the Bar Association, and I was taxed with, I was still here at age 70, how come? And I said, very simple, I know you’re all upset with me because I was a supporter of the mandatory retirement age at 70. Well, all I can tell you fellows is, a sadder day’s work I never did in my life. It never got me anywhere, but in any event, so I’m still here, and New Jersey still has a retirement age of 70. And in consequence, everybody with whom I worked and sat in the New Jersey judiciary is now either deceased or (retired).

Q: I didn’t quite understand what you said when you said you’ve cut back. Have you thought of retiring?

A: No, no. Just cutting back, limiting my activities. No more speeches, no more things like that.

Q: Can you really say that the decision for you, or any justice, on whether to retire doesn’t depend on who’s in the White House? Let’s just say, as a wild hypothetical, if Earl Warren was President today, and there was an election coming up where someone you felt was very hostile to the idea of protecting individual rights.

A: All I can say to you is, Jim, as far as I’m concerned, it’s never for a minute dawned on me that it was important to my decision whether or not to retire who sat in the White House. Never given it that much thought.

Q: Let me ask you about the legal profession. When you were starting as a lawyer, a higher percentage of lawyers represented middle-class people, the poor. Today, many of the best and the brightest young lawyers, including your own clerks, go to work for Wall Street law firms . . .

A: . . . at $65,000 or more a year! What do I think of that? Well, as far as I’m concerned, I just think it’s unfortunate that there aren’t many, many more representing the indigent . . . . The profession is doing something about it, but not yet enough.

As to taking an opportunity to get a $65,000 salary when you walk out of a clerkship here, carry on, I can’t hate you for that. But, heck, when I came to the bar, I started out for nothing. I had this clerkship before I could take the bar exam, and for that clerkship, we didn’t get paid anything. Then I got paid $75 a month. You had to do three years as an attorney before you could take the counselors’ (test). You couldn’t argue a case in the Appellate Court until you had been admitted as a counselor.

So in those first three years you got paid only an attorney’s salary, and in my case the tops was $165 a month before I became admitted as a counselor and began earning some money . . . .

Q: Does it affect the law to have lawyers so well paid now?

A: Sure it does. Certainly it does. A great many lawyers earning that kind of money can’t be interested in taking judicial jobs. There’s no question, I know from personal experience there’s no question that a great many very able lawyers would rather stay where the money is than to take on pro bono publico. No doubt about it. You can’t hate them for it.

It’s just, I wish there was some way they’d appreciate--as I think our generation at least appreciated, we did--that we have a responsibility to take on the unfortunate, and legal-aid work . . . . Now you have legal-aid work that is spread out with government help, and government compensation at least in the federal criminal field, for example. I just think it’s an opportunity for young lawyers to appreciate that they’ve got a responsibility to take on their share of the burden of representing the poor and unfortunate.

Q: On your personal experience, let me ask about a story I heard. After the flag-desecration case last year, your neighbors put a flag up on their apartment?

A: (Laughs.) Yeah. A neighbor, yes. It was there only a day or two. I expect that was to have me understand that my neighbor disagreed with that decision.

Q: And you had to leave your parish church because of feelings on abortion ?

A: Yeah, that’s right. The expressions from the pulpit were critical of the justices--including me--who had voted the wrong way.

Q: What did you do?

A: Just switched to another parish. Where I still remain.

Q: In your time here, how often has it happened that someone representing private interests tried to in some way influence you? Does that happen?

A: I don’t have that, nope, I haven’t had that experience at all.

Q: Or friends?

A: No.

Q: Presidents?

A: No. (Laughs.) Heavens, no. Heavens, no. No, I’ve never had any of that. I don’t think any one of us here have had that experience, either. Frankly I don’t, Jim. You’d have to ask (the other justices). If you ask me, no.

Q: Lastly, you’ve got me a little concerned on your canceling appearances. Has the doctor told you you have . . .

A: He just told me that I ought not risk any longer getting some serious illness, as I could if I overdo things. I came back from Israel a couple of years ago with a terrible case of shingles, really a miserable case of shingles. Then I had a serious reaction only last fall to antibiotics that I was taking for influenza I was running at around that time. And I’m not quite out of that yet. As a matter of fact, it was the reaction to those things that prompted my doctor to say that you just better slow down. That’s all it amounts to, Jim, is just, “You have to slow down.” So I’m doing it. I don’t know how long I’ll keep my sanity, but I’m going to try, anyway.

Q: Do you have to get out of this court once in a while to keep your sanity?

A: Oh, no. (Laughs.) No. No, I haven’t had that in this building. No.