BRENNAN, WILLIAM JOSEPH, JR.

William Joseph Brennan Jr. was the first Roman Catholic appointed to the Supreme Court; he served as associate justice of the Court from 1956 to 1990. His unshakable belief in the Constitution as the guardian of individual rights and liberties garnered both respect and criticism.

Brennan was born April 25, 1906, in Newark, New Jersey. He was the second of eight children of William Joseph Brennan and Agnes McDermott Brennan, Irish immigrants who settled in Newark in the 1890s. His father worked as a coal shoveler in a brewery and, according to Brennan, was the most influential person in Brennan's life. He was also a labor leader and municipal reformer who imbued Brennan with a profound social conscience and an affinity for activism.

Brennan received his early education in Newark public schools, and attended the Wharton School of Finance and Commerce, at the University of Pennsylvania, where he received his bachelor of science degree, cum laude, in 1928. He earned a scholarship to Harvard University Law School, where he studied under felix frankfurter, who would later be his colleague on the Supreme Court. Brennan graduated near the top of his class in 1931.

He began his legal career in 1932 with the Newark law firm of Pitney, Hardin, and Skinner. The firm later added Brennan as a partner and became Pitney, Hardin, Ward, and Brennan. He specialized in labor law and showed a unique talent for successfully negotiating employer-employee disputes. During world war ii, Brennan served in the U.S. Army and eventually became the labor branch chief, Civilian Personnel Division of Army Ordnance. He rose to the rank of colonel and was awarded the Legion of Merit for services to the Army and Army Air Forces procurement programs.

After his army service, Brennan returned to private practice, counseling large manufacturing corporations on labor matters. In 1949, he was tapped by New Jersey's Republican governor to serve on the state's superior court. Assigned to the appellate division, he distinguished himself by implementing reforms that relieved congestion in the court calendar. He was appointed to the New Jersey Supreme Court, and took his seat on March 24, 1952. While there, he helped institute a pretrial conference system that shortened and simplified trials and encouraged settlements, resulting in fewer and speedier trials.

Brennan had served only four years on the New Jersey Supreme Court when, to the surprise of everyone, including Brennan, President dwight d. eisenhower nominated him to serve on the U.S. Supreme Court. Eisenhower, a Republican, would later regard his appointment of the liberal Democrat as one of his worst mistakes, along with his earlier appointment of Chief Justice earl warren. Together, Brennan and Warren led the Court into an unprecedented era of judicial activism that was anathema to conservatives like Eisenhower.

Brennan quickly established himself as a staunch supporter of the rights and liberties guaranteed by the Constitution. He insisted that the bill of rights applies to all U.S. citizens, whether of the lowest or the highest stature. Brennan invited controversy with his view that the Constitution's guarantees must be constantly evolving. Said Brennan, "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."

"Law cannot stand apart from the social changes around it."
—William Brennan Jr.

Brennan's broad interpretation of the Constitution put him at odds with more conservative court members who construe the Constitution as narrowly as possible and attempted to ascertain the original intent of the drafters. Conservatives believe that if a right or freedom is not clearly conferred by the Constitution or by judicial precedent, it is not the job of the Court

to try to find it there. They place the burden on the individual to show that the right or protection sought exists. Conversely, like-minded liberals (and Brennan was one) approach a case by asking whether anything in the Bill of Rights explicitly prevents the Court from finding that the right or protection exists, and they look to the government to prove that the right does not exist. Ironically, when a case involves the use of government power, the opposing groups tend to adopt each other's philosophy: conservatives ask whether anything in the law prevents the exercise of the power, and liberals ask whether the power is explicitly allowed by the Constitution or some other statute.

In spite of his single-minded determination to read the Constitution as broadly as possible, Brennan often acted as a mediator between the liberal and conservative wings of the Court. A warm and charming man who was universally well liked, he used his formidable intellectual and technical skills in tandem with his innate diplomacy to build coalitions on some of the most divisive issues of the time. "You cannot dislike this man on a personal level, no matter how destructive he's been to the values you hold dear," declared Charles J. Cooper, assistant attorney general under President ronald reagan and an ideological archenemy of Brennan. Brennan was respected by friends and adversaries alike. In fact, although he was a lifelong Democrat, his appointments to the judiciary were recommended by conservative Republicans.

It is impossible to overstate the effect Brennan had on the law of the land from 1960 to 1990. He was the architect of pivotal decisions that shaped U.S. life during those years, including Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, a 1972 decision that struck down a law prohibiting the distribution of contraceptives to unmarried women. Brennan recognized a constitutional "right to privacy" protecting "the decision whether to bear or beget a child." His reasoning in Eisenstadt became the foundation for roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that removed many barriers to legal abortions.

Early in his career Brennan wrote the majority opinion in baker v. carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), which allowed federal courts to hear challenges to legislative apportionment and paved the way for later Supreme Court cases establishing the concept of one person, one vote. In new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), Brennan wrote that the first amendment protects the press from libel suits brought by public officials, unless actual malice is proved. He extended the fifth amendment right against self-incrimination to prohibit mandatory registration of Communist party members in Albertson v. Subversive Activities Control Board (382 U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d 165 [1965]).

Brennan found that the Constitution prohibits unequal treatment based on race, age, or gender, in a number of decisions, including in re win ship (establishing use of the reasonable doubt standard for juveniles); frontiero v. richardson (extending constitutional scrutiny to gender-based classifications); and Craig v. Boren (declaring that gender-based classifications are unconstitutional unless they are substantially related to the achievement of an important government objective) (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]; Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]; and Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 [1976]).

Brennan was a strong believer that affirmative action was a way to remedy past discrimination, and he wrote numerous opinions on the subject. In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984), the Court held that it is lawful for employers to adopt voluntary affirmative action programs that are race conscious. Brennan wrote the opinion that upheld limited preferential treatment on the job for women and minorities in Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), and found in United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987), that a one-black-for-one-white promotions quota did not violate the Constitution. Finally, in one of his last opinions on affirmative action, Brennan wrote that the Constitution permits preferential treatment of minorities in the awarding of FCC broadcast licenses (Metro Broadcasting v. FCC, 497 U.S. 547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 [1990]).

Brennan was an adamant defender of free expression even for the most reprehensible words or acts. In texas v. johnson (491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]) and in United States v. Eichman (496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 [1990]), he wrote opinions invalidating statutes that banned flag desecration, on the grounds that they violated the First Amendment. Although recognizing the "special place reserved for the flag in this Nation," he stated, "we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents" (Johnson).

He was also an ardent defender of the rights of children, declaring that we must teach young people "that our Constitution is a living reality, not parchment preserved under glass." He was appalled by cases in which the Court seemed to hold that the Bill of Rights does not apply to schoolchildren, and wrote in one dissent that the majority's decision had given school officials the license to act as "thought police" and taught the students "to discount important principles of our government as mere platitudes" (Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 285, 290, 108 S. Ct. 562, 577, 580, 98 L. Ed. 2d 592 [1988]).

Brennan earned the highest praise as well as the harshest criticism from his opinions in cases involving the rights of the accused. He stead-fastly opposed the use of capital punishment, labeling it state-sanctioned killing, and in one of his final decisions on the Court, he voted against an execution by the state of Virginia. Taking human life, he said, "is God's work, not man's." When that statement was dismissed as mere sentimentality, he replied, "The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity…. The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded." Brennan's critics pointed out that his opposition to the death penalty did not seem in harmony with his support of women's right to abortion, which some consider "state-sanctioned killing."

Brennan passionately defended the protections afforded by the Fourth Amendment's prohibition of unreasonable searches and seizures. His interpretation of the amendment helped establish the exclusionary rule, which holds that any evidence obtained illegally is tainted and cannot be used against the accused. During the 1980s, the Supreme Court recognized a growing number of exceptions to the

rule, prompting Brennan to redouble his efforts to bolster its strength. His advocacy of the rights of criminal defendants brought him sharp criticism, particularly from the media, which often portrayed him as a libertarian who supported the rights of criminals while ignoring those of victims. In a radio interview in 1987, Brennan became uncharacteristically agitated when asked, "Why do you let some of those creeps go? They do such bad things, and on a technicality, you let them go." Brennan replied sharply,

You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They're not. We are what we are because we have those guarantees, and this Court exists to see that they are faithfully enforced. These guarantees have to be sustained—even though the immediate result is to help out some very unpleasant person. They're there to protect all of us.

Citing advancing age and health concerns, Brennan retired from the Court in July 1990, after 34 years as an associate justice. He was replaced by Associate Justice david h. souter. Although he eventually slowed his pace considerably, he continued to be sought as a speaker and used every opportunity to carry on his campaign for individual rights and liberties.

During his tenure on the Supreme Court, Brennan wrote almost 1,600 opinions, many of which have had a significant impact on the American justice system. In 1995, as a tribute to Brennan's legacy, a number of former law clerks, along with family and friends created the Brennan Center. The center, which is housed at New York University's School of Law, pursues an ambitious agenda of litigation, teaching, research, and advocacy in public policy areas, including democracy, poverty, and criminal justice. Brennan died on July 24, 1997, in Arlington, Virginia.

further readings

Brennan Center for Justice. Available online at <www.brennancenter.org> (accessed June 19, 2003).

cross-references

Freedom of the Press; Freedom of Speech; Judicial Review; Warren Court.

BRENNAN, William Joseph, Jr.

(b. 25 April 1906 in Newark, New Jersey; d. 24 July 1997 in Arlington, Virginia), justice of the U.S. Supreme Court whose liberalism, keen intellect, and leadership were responsible for more than 1,300 written opinions, many of them key majority opinions concerning individual rights.

Brennan was the first of eight children—four boys and four girls—of William J. Brennan, Sr., an Irish immigrant who became a labor leader and city representative, and Agnes McDermott, also an Irish immigrant. He grew up in the Vailsburg section of Newark, attending Barringer High School, from which he graduated in 1924. Brennan then attended the Wharton School of the University of Pennsylvania in Philadelphia, graduating in 1928 with a B.S. in economics. On 5 May 1928 Brennan married Marjorie Leonard; they had three children. Brennan earned an L.L.B. at Harvard Law School, where his teachers included Felix Frankfurter, with whom he would later sit on the U.S. Supreme Court. After graduating in 1931 Brennan returned to Newark. When World War II broke out several years later he joined the U.S. Army as legal counsel for the Ordnance Department and achieved the rank of full colonel. He also attracted the attention of Arthur T. Vanderbilt, the chief justice of New Jersey, who, after World War II, was responsible for Brennan being named as an associate in his court.

Vanderbilt was rumored to be in position for a seat on the U.S. Supreme Court when he asked Brennan to substitute for him at a conference on law reform, at which some of President Dwight D. Eisenhower's top justice officials were present. Brennan so impressed U.S. Attorney General Herbert Brownell that when Eisenhower decided he wanted a Roman Catholic on the Court, Brownell recommended Brennan.

Brennan was nominated as a recess appointment in 1956 and later was confirmed by the Senate. Brennan at once connected with the Eisenhower-appointed chief justice, Earl Warren. Brennan's first significant opinion was delivered in Roth v. United States (1957), which established the community standards doctrine—specifically, that to be pornographic "the dominant theme of the material as a whole" must appeal "to the prurient interest" as judged by "contemporary community standards"—that continues to govern obscenity charges in the twenty-first century.

Brennan delivered his most significant opinion in 1962 when he spoke for the Court in Baker v. Carr, which addressed legislative apportionment schemes whereby state monies are distributed; in this case, rural populations were weighted more heavily than urban ones and consequently received a higher per capita proportion of state funds. Previously the court had refused to enter what Frankfurter had termed the "political thicket" of the apportionment of state or federal legislative districts. But in Baker, Brennan brushed aside this objection and ruled that the Fourteenth Amendment forbade legislative districts that were not of essentially equal population, or (as Justice Douglas later framed it) "one person who has one vote" for elected officials. The decision at once nullified schemes that gave rural areas with tiny populations one member in the lower branch of the state house while vastly larger cities got only one or two representatives. Eventually the Court expanded its ruling to include districts of members of the federal House of Representatives and both chambers of state bodies.

The Warren court also instituted sweeping reforms in the procedures used in bringing criminal cases to court and reforms in admitting evidence. Brennan voted for most of these reforms, which included the now-famous Miranda warnings and the changes in search and seizure rules that police chiefs complained would hamstring their investigations. In May 1965 Billy Joe Wade had been placed without benefit of counsel in a suspect lineup for a robbery committed in September 1964. He filed suit. Chief Justice Warren was wary of requiring a lawyer for a lineup proceeding, as delay could weaken the memory of an identifying witness, but in United States v. Wade (1967), Brennan overcame Warren's objection and authored the Court's majority opinion, which ruled in favor of requiring the assistance of counsel in criminal matters at every "critical stage" of a prosecution, not only at the trial.

In the 1960s federal courts had elaborate barriers to hearing complaints about civil rights violations. Cases had to be "ripe" for review (meaning no outstanding issues could be involved except those requiring immediate resolution by the U.S. Supreme Court) and, despite the ancient use of habeas corpus attacks after an initial appeal on criminal convictions, were limited. (Habeas corpus is the doctrine, dating from the Middle Ages, that a prisoner can immediately question the legality of his detention without waiting for the usual criminal processes.) In Fay v. Noia (1963) and Dombrowski v. Pfister (1965), Brennan attacked procedural barriers preventing the hearing of federal civil rights claims. In 1968 Brennan ruled that the Bill of Rights required that the confession of a criminal codefendant must be subject to cross-examination in order to be admissible against the primary defendant.

In 1967 Brennan's political reform views took another turn. New York Times v. Sullivan was a libel case involving a Montgomery, Alabama, town commissioner accused of using tear gas at an Alabama college. Normally the courts would uphold a libel suit only if negligent falsehood and subsequent injury were involved. But in Sullivan, Brennan held that in the case of a "public figure" the courts would require that a plaintiff show that a defendant possessed a reckless disregard for the truth, a decision that made it harder for political leaders and other notables to threaten members of the press by pursuing them with a libel suit. Brennan eventually opened the entire range of Bill of Rights civil liberties to those seeking redress from both state and federal governments. In 1972 Brennan joined the majority in Roe v. Wade, which held that a woman was constitutionally entitled to an abortion during the first trimester of pregnancy.

As the years went on, Brennan found himself swimming against the tide in the Court. The ailing Warren was replaced by Warren Burger, and in the 1980s Ronald Reagan appointed justices who were opposed to much of the Warren court's thinking, particularly with respect to the federal government's exercise of judicial power.

Brennan became senior associate justice in 1975, and as such he could name the writer for court opinions when the chief justice disagreed with him—a power Burger reportedly tried to undermine. On 1 December 1982 Brennan's wife died; the following March he married his secretary, Mary Fowler. Brennan spent much of his energy during his last years on the bench in an effort to permanently abolish the death penalty, which had been suspended with his support in 1972.

Brennan retired in 1990, and President George H. W. Bush appointed David Souter in his place. The next appointee to the Court after Souter was Ruth Bader Ginsburg, who had once taught law a few yards from where Brennan was born.

Brennan died in a nursing home in Arlington, Virginia, of complications from a fractured hip. He is buried in Arlington National Cemetery.

Brennan's personal papers are at the Library of Congress. Studies of his life and theoretical thinking are numerous. Kim Isaac Eisler, A Justice for All (1991), is an adoring tribute that argues that Brennan was the technician behind many of the landmark decisions of the Warren court. See also E. Joshua Rosenkranz and Bernard Schwartz, Reason and Passion: Justice Brennan's Enduring Influence (1997). Studies of Brennan's opinions as a separate body of jurisprudence include David E. Marion, The Jurisprudence of William J. Brennan, Jr.: The Law and Politics of "Libertarian Dignity" (1967). Official memorials to Brennan are in 158 New Jersey Reports (1999) and 115B Supreme Court Reports (2000). An obituary is in the New York Times (25 July 1997).

John David Healy