We’ve Lost a Political Leader--in the Best Sense : Brennan: His vision, cherishing the individual and the community, was uniquely American and will be missed.

The news of Associate Justice William J. Brennan Jr.’s resignation from the Supreme Court hit hard because its meaning was so clear. With President Bush likely to replace the most influential liberal justice with a conservative, the Supreme Court’s role in American life will change.

Brennan, whose work will always be associated with the achievements of the court under Chief Justice Earl Warren, agreed with Warren that at the heart of American democracy was a commitment to fairness, to an inclusive and moral community that only an unelected body like the Supreme Court could enforce.

Brennan, like Warren, had an extraordinary and optimistic view of America. He believed that democracy meant one person, one vote. He believed that racism was a fundamental threat to American ideals. He believed that the government could enforce order without violating citizen privacy. And he embodied these beliefs in action--in votes to require legislative redistricting, to require school desegregation, to deny the state the right to use illegally seized evidence in court.

He believed that the Constitution protected a woman’s right to choose whether to have a child. He thought that the First Amendment protected all kinds of speech, including flag-burning and sexually explicit expression. He believed that the value of every person precluded the state from taking a life, no matter what crime the individual committed. In recent years, these views made Brennan a frequent dissenter on the court, but his basic approach won a majority often enough to leave a lasting imprint on our law.

To all this, many have protested: What gave him the right; why should unelected judges dictate to us on such fundamental issues? The answer--the defense of Brennan’s approach to justice--is clear if we understand the special moral and political role of the court in American life.

The Supreme Court is inevitably a political body. Its nine justices are chosen by politicians and must resolve some of the most difficult issues of the day by majority vote. But unlike the rest of our political leaders, justices serve for life.

Life tenure and the precedential nature of law gives the court a historically unique role, one that requires it to look further into both the past and the future than elected politicians do. The court has the power and obligation to hold the nation to a higher standard than elected representatives can.

The court engages us in a moral and political argument. It can dictate for a time, but we have the last word.

Brennan and the court won the national debate over “one man, one vote,” and they recognized the deep and special hurt of racial discrimination in our nation in decisions broadly accepted as to past practices, but still controversial as applied to the inequities of contemporary America.

From these and many other decisions we can see that the court’s brute power to coerce is frequently exaggerated; its persuasive power is what should impress.

The court’s ultimate test is the test of time. Within the span of a generation or less, the court must build a consensus for its decisions so that they will be followed by successor courts and respected by the public.

And so the question of who should take Brennan’s seat involves us asking what sort of people we are. Perhaps we are tired of the high-minded ideals that he insisted were the message of the Constitution. Perhaps we wish to leave even issues of basic principle to popular referendum. It makes for less heated debate.

President Bush campaigned for a “kinder and gentler” America. Few public officials worked harder toward that than Justice Brennan. He never gave up on the ideal of community, a cooperative and moral undertaking of all classes and races, and never ceased working for it in both his public and his private lives. He had an extraordinary ability to see cases and the nation from many sides, demonstrating a flexibility of mind and a degree of compassion that few now on the court share.

Brennan’s view of the Constitution was controversial. In some respects he may have been mistaken. But his vision of the nation and its fundamental document was inspiring in the very best and most American sense, and I fear our country will be a colder, darker place without him.