After 33 Years, Brennan Is Still for Underdogs

WASHINGTON â€”  The year was 1956. Many states excluded blacks from public schools and colleges. A poor person could be tried and convicted without a lawyer. Women could be denied jobs or a share of their family estate because of their sex. Abortion and even birth control were illegal in many places.

No one foresaw that all this would change when Republican President Dwight D. Eisenhower picked a little-known Democratic judge from New Jersey to fill a Supreme Court vacancy. Time magazine reported the nomination in a small box titled, “A Happy Irishman.�

Impact on Public Policy

But change there has been. All those practices and prohibitions are now a memory, in large measure because of that happy Irishman, William J. Brennan Jr., who this week begins his 34th year on the Supreme Court.

Among constitutional law scholars, the 83-year-old Brennan has become a living legend, a tiny leprechaun of a man whose long service, powerful mind and clear vision of the Constitution have fundamentally reshaped the laws of the land.

Harvard University law professor Laurence H. Tribe said Brennan ranks with the greatest names in the court’s history, including John Marshall, Oliver Wendell Holmes and Louis D. Brandeis. His contribution to contemporary law, Tribe said, is “monumental.�

In the view of liberals and civil rights activists, Brennan’s rulings have given force to the Constitution’s great principles of freedom, justice and equality. A champion of the underdog, Brennan has relentlessly sought to uphold individual rights against intrusions by government, law enforcement and business.

‘Most Valuable Player’

“He is clearly one of the greatest of all time,� said University of Michigan professor Yale Kamisar. “He was the most valuable player of the (Earl) Warren Court. And since then, he has fought one of the great rear-guard actions in history.�

Conservatives, who rue Brennan’s success, nevertheless agree on his extraordinary influence.

“There is no individual in this country, on or off the court, who has had a more profound and sustained impact on public policy in the United States for the past 27 years,� said the conservative weekly National Review in 1984. “To the extent that America is different from the America of 1956, the man appointed by Ike . . . is in significant part responsible.�

Brennan remains largely unknown to the general public. Earlier this year, in a survey of courts and judges, only 3% of the more than 1,000 persons interviewed could identify him. Two prominent members of the court’s conservative wing--Chief Justice William H. Rehnquist, at 9%, and Justice Sandra Day O’Connor, the best-known justice at 23%--were substantially better known.

Conservatives Dominate

But only in its last term, 20 years after the end of the Warren Court, did the conservative bloc of Rehnquist and O’Connor finally dominate Brennan’s liberals. Brennan was able to write only one major ruling--that a political protester could not be punished for burning an American flag.

That lonely opinion was vintage Brennan. Legislatures in 48 states had enacted laws prohibiting flag burning. The public supported those laws by an overwhelming percentage. But Brennan said the court must heed a higher principle: the First Amendment’s protection of free speech and political dissent.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,� Brennan declared.

That is the kind of language that drives conservatives to distraction. To them, Brennan epitomizes what is wrong with the Supreme Court.

Under Attack

“He’s the prime architect of the doctrine of judicial supremacy,� said former Ronald Reagan Administration lawyer Charles Cooper. William Bradford Reynolds, the controversial Reagan Administration civil rights chief, personally attacked Brennan in several 1986 speeches, calling him “perhaps the major threat to individual liberty� in America today.

The best way to understand the impact of Brennan’s rulings, according to the 1984 National Review analysis, is to take “a casual glance at the FBI crime statistics, the proliferation of porno bookstores, the decline of public values, the growing threat of domestic terrorism and the decline of the public schools.� The article’s author, Stephen Markman, also a former Reagan lawyer, argued that Brennan had tied the hands of government.

Brennan’s many defenders counter that the Bill of Rights itself chose individual liberty over governmental authority.

“The document commits us to a government that recognizes the dignity of each individual . . . and to certain distrust of majoritarian rule in some contexts,� said University of Chicago Law School Dean Geoffrey Stone, a former Brennan clerk.

Brennan himself makes no apologies for relying on vague constitutional phrases such as the “right to liberty� and the “equal protection of the laws� to settle today’s divisive disputes.

‘Vital Charter’

“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,� Brennan said in a 1985 speech. “The Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it and the fidelity to live by it.�

Born on April 25, 1906, William Joseph Brennan Jr. was the second of eight children in an Irish-Catholic family in Newark, N.J. His father, an Irish immigrant, worked first as a stoker of the fires at a Newark brewery but later became a prominent labor leader and a member of the City Council.

Young Brennan graduated from the University of Pennsylvania in 1928 and from Harvard Law School in 1931, in the midst of the Depression. After more than a decade in private practice and Army service in World War II, he was appointed a state trial judge and rose to the state supreme court.

Meets With Ike

On a Friday evening in September, 1956, he received a call from a Justice Department official, asking him to take the night train to Washington for a Saturday meeting. A lifelong Democrat, Brennan said he had no idea what was coming--that is, until Atty. Gen. Herbert Brownell met him at 5:30 a.m. at Union Station. After a genial half-hour conversation with Ike, the Supreme Court nomination was his.

Why Brennan? Eisenhower and his aides never explained, although the press of the reelection campaign was considered the apparent reason. In public, Ike said only that Brennan was “the best man available� for the job.

“I was willing to stop the inquiries right there,� Brennan commented recently.

After a brief hearing in the Senate, Brennan was confirmed with only one dissenting vote--from Wisconsin’s Joseph R. McCarthy.

His first visit to the Supreme Court’s marble palace was not an auspicious one. Chief Justice Earl Warren took his new colleague up to the third floor to see the justices’ private lounge. He switched on the lights, only to find the rest of the brethren gathered around a television set watching the World Series. Before Warren could begin the introductions, someone called out: “Put out the lights!�

An Odd Couple

Brennan and Warren soon developed a close working relationship and an enduring friendship. They looked to be an odd couple: the “bear-like� Warren towering over Brennan, “small and feisty, almost leprechaun-like in appearance,� according to Bernard Schwartz, Warren’s biographer.

“It is not much of an exaggeration,� professor Kamisar said, “to say that Brennan became Warren’s lawyer.�

First Strike

They launched their first strike on June 17, 1957, a day that critics labeled “Red Monday.� In several 5-4 rulings, the court limited McCarthy-era attacks on professors, schoolteachers and others who were alleged to have past Communist ties. Such persons could not be prosecuted for their Communist beliefs or memberships, the court said, but only for their active plans to overthrow the government.

The next year, Brennan drafted for the court a powerful opinion in the Little Rock school desegregation case, declaring forcefully that the federal courts had the supreme authority to interpret the Constitution. The ruling, four years after the landmark Brown vs. Board of Education case, made clear that the justices would not permit Southern officials to block desegregation.

The Warren Court had its heyday in the 1960s. Until then, many of the key rights in the Bill of Rights had not been applied against state and local law enforcement. Until then, police in some states could invade a person’s home without a warrant, force a confession to a crime and deny the suspect the aid of a lawyer.

Between 1961 and 1969, all that changed. In a series of controversial decisions, the Warren Court ruled that criminal suspects, whether in a big city or a rural county, were entitled to the full protections of the Bill of Rights.

In 1961, for example, the court said that the Fourth Amendment’s protection against “unreasonable searches and seizures� meant that police could not use evidence obtained after breaking down someone’s door without a search warrant. This so-called “exclusionary rule� remains controversial today, largely because it jeopardizes many drug cases where the seizure is deemed illegal.

Controversial Cases

In 1963, in the landmark Gideon case, the high court declared that poor persons were entitled to the aid of a lawyer at their trials, even if the government must pay the cost. Still more controversial was the 1966 case of Miranda vs. Arizona, in which the justices said the police must warn suspects of their right to remain silent and their right to consult a lawyer.

Brennan was the behind-the-scenes leader in fashioning a majority for what court scholars have dubbed this “criminal-justice revolution.� But that was hardly his only area of interest.

For decades, the makeup of political bodies, such as state legislatures and city councils, was considered off limits to the courts. In 1962, however, Brennan wrote a path-breaking ruling declaring that voters deserved equal representation. A state system that gave one representative to a city with 1 million persons and one representative to a rural county with 20,000 persons was unfair and unconstitutional, he said in the case of Baker vs. Carr.

‘One Person, One Vote’

In short order thereafter, the high court insisted on the “one person, one vote� standard nationwide. In so doing, it fundamentally altered state legislatures.

In 1963, Brennan wrote a major opinion outlawing state-required Bible reading in schools, a follow-up to a ruling a year earlier striking down official prayers in public schools. Brennan believes the First Amendment requires a strict separation of church and state, a view shared by only three other justices today.

In 1964, he wrote the landmark New York Times vs. Sullivan ruling giving the press freedom from libel suits except where the reporters and editors displayed “actual malice� or “a reckless disregard� for the truth.

By the late 1960s, the Warren Court was the subject of nationwide controversy. “Impeach Earl Warren� billboards sprouted along highways. Richard M. Nixon, in his 1968 campaign, said the court was soft on crime, and he pledged to move it toward the right.

Nixon’s Appointees

His first opportunity came in 1969 with Warren’s retirement. His replacement, Warren E. Burger, was soon joined by three other Nixon appointees.

Few had predicted what happened next. With Brennan taking the lead in the 1970s, the court broke new ground in several areas.

In 1972, Brennan wrote a court opinion overturning the conviction of a Massachusetts man for having given a contraceptive to an unmarried woman.

“If the right to privacy means anything,� he wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.�

That ruling provided a precedent for the stunning decision that followed the next year. In Roe vs. Wade, the supposedly reconstituted conservative court struck down the abortion laws in 37 states and declared that the Constitution gave a woman the right to end an unwanted pregnancy.

Short-Lived Victory

Also in 1972, Brennan won what proved to be a short-lived abolition of the death penalty. On a 5-4 ruling, the justices struck down capital punishment as unconstitutional. Brennan, joined by Justice Thurgood Marshall, said executions were ruled out by the Eighth Amendment’s ban on “cruel and unusual punishment.� The other justices in the majority said the current death penalty laws were “arbitrary� and “capricious.�

Many states, however, simply rewrote their death penalty statutes, and in 1976 a new 5-4 majority of the Supreme Court upheld them.

In attacking sex discrimination, Brennan’s success was more lasting. Until the early 1970s, the 14th Amendment’s guarantee of “the equal protection of laws� protected blacks, but not women, from discrimination.

In a series of rulings beginning in 1971, Brennan won a shaky majority for the view that government could not deny women equal treatment without having a “compelling� reason. Though the proposed equal rights amendment to the Constitution failed to win ratification, Brennan succeeded within the Supreme Court in rewriting the law so that most, if not all, government classifications based on sex were unconstitutional.

Few Sweeping Defeats

By the Reagan era of the 1980s, Brennan’s big victories were few. But to the surprise of most observers, he also suffered few sweeping defeats.

In 1979, for example, Brennan wrote the court opinion declaring that employers may undertake affirmative action to aid previously excluded persons such as blacks, Latinos or women. The Reagan Justice Department repeatedly attacked that ruling, but so far it has not been reversed, at least as applied to the private sector.

In 1982, Brennan put together a 5-4 majority to rule that Texas could not exclude the children of illegal aliens from its public schools. As late as 1987, he won slim majorities upholding a California law giving pregnant women a four-month disability leave and endorsing voluntary affirmative action for women employees.

Conservative Majority

The last term, however, marked a watershed for the court. Brennan’s style of liberalism had gone out of fashion. The three Reagan appointees to the court--Justices O’Connor, Antonin Scalia and Anthony M. Kennedy--combined with veteran conservatives Rehnquist and Byron R. White to form a solid conservative majority. Brennan was reduced mostly to writing passionate dissents.

Nevertheless, Brennan hardly seems a figure of despair or decline. Friends and co-workers remark instead about his good spirits, quick mind and bubbly enthusiasm for a job he has held for nearly two decades after reaching retirement age.

“He seems as sharp as ever,� said Kamisar, the University of Michigan professor. “His memory is incredible. Whether a case is 30 years old or 5 years old, he can recount it vividly.�

In recent weeks, Brennan has been reading through the hundreds of appeals of lower court rulings that piled up over the summer. Alone among the justices, he personally scans the more than 5,00O appeals that reach the court each year.

3rd in Longevity

Among 20th-Century justices, Brennan is now third in longevity to his Warren Court colleagues William O. Douglas, who served a record 36 years, and Hugo L. Black, 34 years. Despite a variety of ailments, including most recently the loss of his gallbladder, Brennan says his health is good, and he is back to riding his exercise bicycle every morning at dawn.

Short and slightly stooped, Brennan still seems genuinely delighted with everyone he meets. Even his critics, at least those who have met him, speak warmly of him.

“He’s who everyone ought to have as a grandfather,� said Cooper, the former Reagan Administration lawyer.

Tribute to Warren

Last spring, amid the press of a heavy court term, Brennan journeyed to San Francisco to deliver a tribute to his friend and mentor Earl Warren. Some thought the words he chose applied equally to Brennan himself.

Warren, he said, “strongly believed that individual human dignity was the primary value fostered and protected by the Constitution. People were his concern, especially ordinary people--the disadvantaged, the downtrodden, the poor, the friendless.�

Brennan said Warren felt that at the core of the Constitution “lay a profound vision of justice, and it was the duty of the court to make that vision a reality for the least of men.�