Brennan Crafted a 34-Year Legacy of Legal Landmarks

In the 34 years that William J. Brennan Jr. served on the nation’s highest court, the United States underwent a profound social and political revolution, one which he, perhaps as much as any other person, helped shape.

Under the relentless prodding of a diminutive, puckish, Harvard-educated, Irish-American lawyer from New Jersey, schools were desegregated, legislatures reapportioned, police procedures revolutionized, courts restructured and figures of authority across the land put on notice that their power could, and would, be called into question.

“He had,” said Stanford University law professor Gerald Gunther, “a great belief in the power of the judiciary to do good” coupled with the skills to turn those beliefs into law.

Or, as the conservative National Review said of the liberal justice in a rueful 1984 review of his work: “There is no individual in this country, on or off the court, who has had a more profound and sustained impact upon public policy in the United States.”

Even in the last years of his career, with nearly all his colleagues from the heyday of the activist court of the 1960s long since retired, Brennan continued to confound conservatives with his ability to muster majorities to support his liberal views.

In 1987, for example, William H. Rehnquist’s first year as chief justice, it was Brennan, not Rehnquist, who held the majority on each one of the court’s sharply divided major cases.

Those cases included two upholding affirmative action, a subject of many of Brennan’s most important decisions, a ruling protecting the rights of aliens seeking political asylum in the United States and a decision that extended federal anti-discrimination laws to cover people suffering from contagious diseases, including AIDS.

Lewis F. Powell Jr.’s resignation and replacement by Anthony M. Kennedy later that year prevented Brennan from ever repeating that sort of wholesale victory again. But last year, he mustered five justices to support his decision that the First Amendment’s protection of political expression shields even those who burn the flag. And last month, in what will now stand as the last of his more than 1,200 court opinions, Brennan stunned court watchers by rounding up a majority for a sweeping decision supporting federal affirmative action decisions.

“His leaving the court closes a chapter in a very symbolic way,” said A. E. Dick Howard of the University of Virginia law school. “As long as Brennan was on the court, the Warren Court had not concluded.”

Or as Brennan, himself, put it in a statement Friday night: “It is my hope that the court during my years of service has built a legacy of interpreting the Constitution and federal laws to make them responsive to the needs of the people whom they were intended to benefit and protect.

“This legacy can and will withstand the test of time.”

That is an expectation shared, at least in part, by many constitutional scholars.

Brennan’s departure inevitably will accelerate the high court’s turn to the right. Much as the court in the 1980s undid many of the liberal criminal-law decisions of the 1960s that Brennan helped write, the coming conservative court of the 1990s in all likelihood will trim back Brennan rulings on civil rights and the separation of church and state, experts suggest.

But much of Brennan’s judicial work--particularly the basic principle that the Bill of Rights limits the actions not only of the federal government but of the states as well--has become so firmly entrenched in American life and law that it is all but irreversible.

“There are landmarks that will survive any conceivable majority,” said Howard.

In 1956, when Brennan joined the high court, the justices were still a sharply divided, often contentious group. Two years had passed since Brown vs. Board of Education ended legal school segregation in the United States and foreshadowed a new era of activism under Chief Justice Earl Warren. But the court Brennan joined was still a divided body with a substantial conservative contingent, led by Justice Felix Frankfurter, that resisted Warren’s impulse to use judicial power to reshape other institutions.

During those contentious days, Brennan was Warren’s “closest ally,” wrote Warren’s biographer, Bernard Schwartz, in his book “Super Chief.” It was Brennan who would find the legal formulas that could bring together a five-justice majority in support of Warren’s positions.

Steadily, and with ever greater success, Brennan convinced his colleagues to abandon Frankfurter’s philosophy of placing sharp limits on judicial power. Then in 1961, in a Brennan decision that Warren, in his memoirs, called “the most important case of my tenure,” the liberal wing of the court triumphed.

For more than a century, voters living in cities across the country had been deprived of an equal voice in political decisions because rural legislative districts contained far fewer voters than districts in cities. Judges consistently had refused to hear claims that such unequal districts violated the Constitution. But in November, 1960, the high court agreed to consider the issue in a Tennessee case called Baker vs. Carr.

The stakes were high. A ruling against the state would be a vast expansion of judicial power--assertion of authority of judges into the realm of politics. But a ruling for the state would mean condemning urban voters in Tennessee and elsewhere to a permanent disenfranchisement. There was little possibility, after all, that the entrenched majorities in state legislatures would willingly vote themselves out of power.

Schwartz’s account of the case, based on the papers of the former justices, illustrates the techniques that Brennan used throughout his career to develop his tremendous influence.

The justices first heard arguments the following April. They deadlocked and decided to consider the case a second time in October, 1961. Immediately after the argument, Frankfurter, convinced that the Constitution provided absolutely no grounds for the court to involve itself in the case, sent the other justices a lengthy, highly detailed legal argument in favor of the state’s position.

Brennan, seeking to convince his colleagues of the unfairness they confronted, chose a different approach. Rather than a legal brief, he sent his colleagues a chart detailing how vastly the population of Tennessee’s districts varied. The court faced a fundamental unfairness, he argued; it could not turn a blind eye.

For months, debate over the case dominated the high court’s closed-door conversations. Brennan carefully lobbied his colleagues, changing a word here, a paragraph there in his draft opinion to attract their votes. Slowly, the swing justices began to turn Brennan’s way. Finally, on March 26, with a six-vote majority intact, Brennan announced the decision.

Voters, he ruled, had the right to go to court to challenge legislative apportionment schemes. As Brennan’s sonorous baritone read out the words of the decision across the justices’ vast marble courtroom, Warren passed him a note: “It is a great day for the Irish,” the chief justice had written at first. Then, crossing out the last word, he wrote: “It’s a great day for the country.”

The Baker case made clear the fundamental theme of what would be known as the “Warren Court”--that the justices were willing to venture outside old ideas of what the Constitution meant to remedy injustices.

“We current justices read the Constitution in the only way that we can: as 20th Century Americans,” Brennan said several years later in a speech at Georgetown Law School that he designed as a summary of his philosophy. “We look to the history of the time of framing (of the Constitution) and to the intervening history of interpretation. But the ultimate question must be: ‘What do the words of the text mean in our time?’ ”

To conservatives, that philosophy gave courts far too much power. Judges should be “strict constructionists” of the Constitution, they argued and should not create “new rights.”

Brennan rejected that argument. “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs,” he said in his Georgetown speech.

Eleven days after Baker vs. Carr, Frankfurter suffered a stroke and was forced to resign. President John F. Kennedy appointed Arthur J. Goldberg to replace him. The addition of one more solid liberal vote galvanized the Warren-Brennan majority. The next six years were among the most important in the history of the high court, a “breathtaking” series of major decisions said Howard of the University of Virginia.

Many of those decisions were Brennan’s.

In 1962, in a case called NAACP vs. Button, Brennan struck down a Virginia law that had prevented civil rights groups from filing suits to protect the rights of black citizens, a key victory for the civil rights movement.

Two years later, Brennan wrote the 1964 decision in New York Times vs. Sullivan which, for the first time, held that the First Amendment protected newspapers against libel suits by public officials.

In 1970, in a decision that directly touched the lives of millions, Brennan ruled that government bureaucrats could not deprive a person of benefits without following fair procedural rules. And the next year, Brennan ruled that federal officials who do violate an individual’s rights can be sued for monetary damages.

But it was his criminal-law decisions that best showed Brennan’s consistent concern for the least attractive members of society. The concern with the rights of criminals was baffling to Brennan’s critics, who accused him of protecting the guilty at the expense of society. But to Brennan, the decisions were matters of fundamental fairness that ultimately protected all citizens from the power of the state.