Justice Brennan: A Liberal Icon Gets Another Look

William Brennan Jr.

The legacy of U.S. Supreme Court Justice William J. Brennan Jr., shown on April 20, 1972, is spelled out in more than 1,300 legal opinions. John Rous/AP hide caption

itoggle caption John Rous/AP

While the U.S. Supreme Court today is dominated by conservatives, it still abides by many of the landmark decisions written by the court's liberal icon, Justice William J. Brennan Jr., who retired in 1990 after 34 years of service.

This fall, a long-awaited biography, Justice Brennan: Liberal Champion, is on the nation's bookshelves — an account of Brennan's life, times and influence on the nation's highest court.

For those not familiar with Brennan's incredible record, let us recapitulate. As the conservative National Review put it in writing about the liberal justice: "An examination of Brennan's opinions, and his influence upon the opinions of his colleagues, suggests that 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."

Cover of "Justice Brennan: Liberal Champion."
Justice Brennan: Liberal Champion
By Seth Stern and Stephen Wermiel
Hardcover, 688 pages
Houghton Mifflin Harcourt
List price: $35

Read An Excerpt

Brennan's legacy is spelled out in more than 1,300 legal opinions — from Baker v. Carr, his opinion for the court establishing the "one person, one vote" principle in legislative apportionment, to his passionate dissents on the death penalty.

For reasons that even the book's authors cannot fathom, Brennan agreed in the mid-1980s to cooperate on a biography with Stephen Wermiel, then of The Wall Street Journal and now a law professor at American University. The justice asked for nothing in return, not even editorial control. Wermiel spent four concentrated years with Brennan while the justice was still on the bench. The biographer had unfettered access to Brennan's papers, and unparalleled access to the justice. Not only was Wermiel permitted to be something of a fly on the wall in the Brennan chambers, but the justice also sat for more than 60 hours of tape-recorded interviews.

Maybe because Wermiel had so much information, he couldn't seem to write the book and put the project aside for more than a decade. Eventually, he enlisted Congressional Quarterly reporter Seth Stern as a co-author.

Getting To Five

When the co-authors sat down to talk with NPR, the conversation immediately turned to Brennan's astonishing ability to figure out how to accommodate and explicate differing views to, as the justice often put it, "get to five," meaning get a court majority.

That skill, contrary to some popular perceptions, belied the stereotype of Brennan as a glad-handing and twinkling leprechaun. Brennan's power "wasn't his affability or his political skills, but his ability to accommodate concerns and his willingness to take half a loaf now and try to build upon that later," Stern says.

The Authors

Stephen Wermiel

Stephen Wermiel (above) recorded more than 60 hours of interviews with Justice William J. Brennan Jr. for the biography. Then he put the project aside for more than a decade before eventually enlisting Congressional Quarterly reporter Seth Stern (below) as a co-author. Houghton Mifflin Harcourt hide caption

itoggle caption Houghton Mifflin Harcourt
Seth Stern
Courtesy of the author/Houghton Mifflin Harcourt

Wermiel cites as an example Brennan's effort to make gender discrimination illegal under the Constitution's guarantee to equal protection of the law. "He set his sights on treating gender discrimination the same way that race discrimination had been treated under the equal protection clause," says Wermiel, but "uncharacteristically, he failed initially. He didn't get a fifth vote."

Three years later, though, he tried again, using his nimble intellect to invent a new and "significant way of the court examining gender discrimination." As Wermiel observes, "It's in some ways a brilliant end product on his part because it accomplished what he set out to accomplish and it got a majority, and it's held beautifully."

And yet, Brennan himself didn't hire female law clerks for a very long time. In 1970, when Stephen Barnett, one of his former clerks, recommended a woman, he didn't pick her, and four years later when Barnett again recommended a woman, Brennan again said no.

"But instead of backing off a second time," says author Stern, "Barnett sent him a letter and said, 'With all due respect, Justice, you're a hypocrite. ... You could be sued on the very precedents that you helped craft.' "

To Brennan's credit, Stern observes, the justice, instead of getting angry, called up Barnett and said, essentially, "You're right." He hired Marsha Berzon, the woman Barnett had recommended. She is now a federal appeals court judge in California.

Personal Views And The Role Of Religion

Brennan's interviews with Wermiel show a man who defies, too, the stereotype of the liberal justice trying to impose his own personal views on the law, for Brennan's personal views were far more conservative than what he thought the Constitution required.

Behind the scenes, for instance, he was influential in formulating the legal principles that are the basis for Roe v. Wade, the court's abortion decision. But as Brennan told Wermiel: "Independently, as a private person and not required to make a decision, I would never have agreed that abortion is proper."

Brennan also was responsible for expanding First Amendment doctrine to allow more sexually explicit material. But he hated the stuff, and said he would never tolerate it in his home.

And even though he came to firmly view the death penalty as unconstitutional, he admitted that sometimes pained him. He admitted that in his private capacity, he thought "on more than one occasion, that bastard ought to hang."

Brennan's role as the court's only Catholic justice was a matter of some anguish for him. He resented being asked at his confirmation hearing whether he could abide by the laws of the United States and not the laws set down by the pope, and he resented the role in which he was cast for 30 years as the court's house Catholic. Whether it was other justices asking him if certain language was theologically correct, or the campaign by some critics to have him excommunicated, it all upset him.

A devout Catholic, Brennan, nonetheless, had few doubts about what he saw as the constitutional imperative for a high wall of separation between church and state.

He told Wermiel that the separation is needed to avoid "the risks attendant upon too cozy a relationship between church and state, and what it's done to break up ... societies like ours, long before our own.”

Justice William Brennan with daughter Nancy and wife Marjorie.

The new Justice Brennan embraces his 7-year-old daughter Nancy as his wife, Marjorie, holds his robe on Oct. 16, 1956, in the Supreme Court building in Washington. AP hide caption

itoggle caption AP

"I would hold that line [of separation] very firm," he said, "maybe more firmly than a lot of people, non-Catholics as well as Catholics."

Brennan insisted repeatedly that it was his job to separate Catholic doctrine from Constitutional doctrine. "The times that he would get the angriest at me in the interviews," says Wermiel, were "when I would say to him, 'Well, how can you possibly really separate your religious faith from your personal role as a Supreme Court justice?' And he'd get frustrated and say, 'I've told you time and again, my oath is to uphold the Constitution. I don't have an oath of allegiance to my church.' "

'Introverts Pretending To Be Extroverts'

Interestingly, even in his later years on the court, when conservatives often voted to reject his view of the law, Brennan still was pulling rabbits out of the hat on occasion, persuading his colleagues, forging agreement where others could not.

Though his Irish immigrant father had been the elected fire and police commissioner of Newark, Brennan, once he became a New Jersey judge, never voted in elections. He thought it would somehow make him invested in one party or the other, and he later became deeply concerned about the tone of the confirmation hearings for Supreme Court nominee Robert Bork, an archconservative. In one of Wermiel's interviews, the justice observed that it is up to the Senate to prevent the confirmation process from being politicized.

"The whole business really ... talk about self-restraint ... has to rest on the senators who are conducting the process," Brennan remarked. "I deplore the excesses, but I don't see anything whatever that I or anyone else can do about it."

In the 1980s, Brennan graciously agreed to a lengthy series of interviews with this reporter. And while he was candid about his own shortcomings, he completely, though charmingly, resisted any introspection about himself. Wermiel said he, too, encountered that resistance.

Stern, who came to the project after Brennan's death, admits, "One of the great mysteries to me is why did this profoundly private man open up his entire life to a journalist. I mean, he had to have known the consequences of letting a journalist in the door. And yet that was his choice ... I don't know if there is an answer."

The answer, adds Stern, may have come from Brennan's daughter Nancy. "You know," she said, "we're a family of introverts pretending to be extroverts."

Excerpt: 'Justice Brennan'

Justice Brennan: Liberal Champion
Justice Brennan: Liberal Champion
By Seth Stern and Stephen Wermiel
Hardcover, 688 pages
Houghton Mifflin Harcourt
List Price: $35

In December 1972 a young attorney named Ann Torregrossa, just a couple years out of Villanova Law School — and just a few weeks from giving birth — stood up to argue her first case before the Supreme Court. The novice public interest attorney and her lawyer husband, Joe Torregrossa, represented a group of Philadelphia prisoners seeking a way to vote in the city's mayoral election. The two had alternated argument duty at every step of the appeal. Now, as the case reached the nation's highest court and Torregrossa entered the ninth month of her pregnancy, it was her turn. Torregrossa later stated that she became so nervous as she waited to present her case, she started to have contractions, causing the baby to kick so hard, she could see the front of her maternity dress move up and down.

Brennan looked at the pregnant Torregrossa, not much older than his own daughter, and worried she might go into labor right there in the courtroom. He had by now a well-developed habit of jumping in on behalf of attorneys arguing his side of a case with helpfully leading questions. Here, he tried deflecting another justice's tough query. When Torregrossa answered the next question with ease, Brennan patted the shoulder of one his neighbors on the bench with satisfaction. "He was so in my corner, I can't tell you," recalled Torregrossa, who named her son Brennan in appreciation when he was born in January. Days later, Brennan announced a 9-0 decision in Torregrossa's favor.

Many other women would express their gratitude to Brennan in the years to come, as he authored several landmark gender-equality decisions, beginning the same term as Torregrossa's appearance. Ruth Bader Ginsburg, the attorney who led the legal attack for gender equality and later became a Supreme Court justice herself, would hail Brennan as "the Court's clearest, most constant speaker for women's equality." Nina Totenberg, National Public Radio's Supreme Court reporter, marveled, "When it comes to sex discrimination, well, he 'gets it.'"

Yet, in the early 1970s, another recent female law school graduate had a very different view of Brennan's attitudes toward women, particularly in his own workplace. Alison Grey was one of the top recent graduates from the University of California at Berkeley's Boalt Hall Law School when two Brennan clerks turned professors there, Stephen Barnett and Robert O'Neil, called in late 1970 to tell her they intended to recommend her for a clerkship in Brennan's chambers. The opportunity excited Grey, then working as an associate at a prestigious Washington, D.C., law firm, Covington & Burling, but she asked for a couple of days to think it over.

Although she had been first in her class, Grey had given up on the idea of a Supreme Court clerkship after a professor told her that the faculty would not waste a nomination on a woman. She had already clerked for a Fourth Circuit judge and liked her law firm job. Yet she knew that a coveted Supreme Court clerkship would improve her chances of achieving her ultimate goal of becoming a law professor, a career track few women had penetrated. So she called Barnett back and accepted the nomination. But when one of the professors called Brennan to offer their recommendation, he did not get much beyond saying Grey's first name before Brennan cut him off. "Send me someone else," Brennan said, making it perfectly clear that he meant a male clerk.

A quarter century had passed since Douglas had hired the Court's first female clerk; that was during World War II, when male law students were in scarce supply. Black and Fortas hired the second and third in 1966 and 1968. Brennan showed no inclination at the time to follow his allies' lead. When Yale Law School dean Louis Pollak wrote him in September 1966 to say that he would begin looking for "the appropriate young man (or woman)" as his clerk, Brennan replied, "While I am for equal rights for women, I think my prejudices are still for the male." His refusal to consider women had consequences. At that time, women accounted for less than 4 percent of lawyers overall and 1 percent of federal judges. A Supreme Court clerkship could provide a young woman lawyer rare entrée to the profession's most elite jobs, particularly in academia, where a Court clerkship was then often a prerequisite at top schools. It was just the sort of disparity that angered women joining the burgeoning women's rights movement. A month after Brennan wrote Pollak, the National Organization for Women was launched in Washington, D.C., demanding the government stop discriminating against women in all areas of public life.

Brennan, who was so attuned to the civil rights struggle a decade earlier, seemed slow to grasp the connection between his actions and the feminist movement pushing for equality. By 1970, he could not have avoided newspaper and magazine stories detailing protests by increasingly vocal feminists of his daughter's generation, many disillusioned with the sexism they encountered in both the civil rights and antiwar movements. Behind closed doors, women around the country gathered in small consciousness-raising sessions to discuss their common experience with sexism.

Since Nancy had begun to educate him about women's rising expectations during their car rides home together while she interned in Washington in the summer of 1968, Brennan had slowly begun to come to accept her professional aspirations. By the fall of 1970, when women accounted for 10 percent of law school students, he still had great difficulty accepting the idea of any of these young female attorneys sharing his workplace.

Even Warren, fifteen years his senior, had employed women attorneys in senior positions when he was a district attorney and governor. But Brennan, who turned sixty-four in 1970, had little or no experience working alongside any women other than secretaries. His Newark law firm did not employ any female attorneys during his tenure there. None served alongside him as judges on New Jersey's courts. Brennan had not entirely adjusted to the presence of women acting as advocates at the Court, either, as suggested by his excessive solicitousness of the pregnant Torregrossa. A decade earlier, Brennan and Harlan liked to joke about Beatrice Rosenberg, one of the few female attorneys who argued before the Court. The two justices both viewed Rosenberg, who argued more than thirty cases before the Court, as a gifted litigator and physically unattractive. She also happened to have graduated Barringer High School in Newark with Brennan. After she showed Brennan a copy of their yearbook, Harlan used to tease him about her being his high school sweetheart, the sort of juvenile jokes they did not make about male attorneys who argued before the Court.

Brennan simply felt more comfortable around men. He liked to joke — sometimes crassly — with his friends and fellow judges in the private-club atmosphere of Kronheim's liquor distributorship over lunch. In the summer, he found similar all-male camaraderie at the Wharf Rat Club on Nantucket. At the Court, he salted his stories with the occasional profanity. Brennan confided to his clerks over coffee during the 1968-69 term that he worried about having to watch what he said if a woman clerk worked in his chambers. He did not feel he could have the same sort of relaxed rapport with a female clerk or colleague. If a woman ever got nominated to the Court, Brennan predicted, he might have to resign. "It's a strange kind of sexism," his friend Abner Mikva later observed. "He had [women] on such a pedestal he couldn't have their ears sullied by four-letter words." Ironically, this is one thing about which Brennan and Burger agreed entirely. In 1971 Burger warned President Nixon he would resign if a woman was named to the Court.

Excerpted from Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermiel. Copyright 2010 by Seth Stern, Stephen Wermiel. Excerpted by permission of Houghton Mifflin Harcourt Publishing Co.

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