MARY LOUISE KELLY, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Mary Louise Kelly.
These days, the Supreme Court is dominated by conservatives. But it still abides by many decisions written by the court's liberal icon, Justice William J. Brennan. Brennan retired in 1990 after 34 years of service. Now, a long-awaited biography provides new insights into his influence.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: 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.
Nobody anticipated that record when Brennan was appointed by Republican president Dwight Eisenhower, who, in an election year, wanted to appoint a Catholic to a court that had had no practicing Catholic for seven years.
Brennan's legacy is spelled out in more than 1,300 legal opinions, from Baker versus Carr, his opinion for the court establishing the one-person-one-vote principle in legislative apportionment, to his ringing dissents on the death penalty.
For reasons that even the 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 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.
When the two men sat down with me, we talked immediately about 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. And as Stern noted, that skill, contrary to some popular perceptions, belied the stereotype of Brennan as a glad-handing and twinkling leprechaun.
Mr. SETH STERN (Co-author, "Justice Brennan: Liberal Champion"): It 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.
TOTENBERG: Wermiel cites, as an example, Brennan's effort to make gender discrimination illegal under the Constitution's guarantee to equal protection of the law.
Professor STEPHEN WERMIEL (Co-author, "Justice Brennan: Liberal Champion"): He set his sights on treating gender discrimination the same way that race discrimination had been treated under the Equal Protection Clause. And in that one, uncharacteristically, he failed initially. He didn't get a fifth vote.
But the nimbleness that I think you talk about was exactly what came into play. He then came back three years later and invented a new kind of significant way of the court examining gender discrimination. 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.
TOTENBERG: And yet, Brennan himself didn't hire women law clerks for a very long time. In 1970, when Stephen Barnett, one of his former clerks, recommended a woman, Brennan didn't pick her. And four years later, he said no again.
Mr. STERN: But instead of backing off a second time, Barnett sent him a letter and said: With all due respect, Justice, you're a hypocrite. And not only are you a hypocrite, you could be sued on the very precedents that you helped craft.
TOTENBERG: To his credit, Stern observes, Brennan, instead of getting angry, called up Barnett and said: You're right. And the justice hired a woman law clerk.
Brennan's interviews with Wermiel show a man who defies, too, the stereotype of a 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 versus Wade, the court's abortion decision. But as he told Wermiel...
Mr. WILLIAM BRENNAN (Former Justice, U.S. Supreme Court): Independently, as a private person and not required to make a decision, I would never have agreed that abortion is proper.
TOTENBERG: 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 own home. And even though he came to firmly view the death penalty as unconstitutional, Brennan admitted that sometimes pained him.
Mr. BRENNAN: Yes, and I have said this - I expect it has to be in my private capacity, doesn't it - on more than once occasion: That bastard ought to hang.
TOTENBERG: 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.
Mr. BRENNAN: I think the risks attendant upon too cozy a relationship between church and state, and what its done to break up societies like ours long before our own, no, I would hold that line very firm. Maybe more firmly than a lot of people, non-Catholics as well as Catholics would hold.
TOTENBERG: Author Steve Wermiel.
Prof. WERMIEL: The times that he would get the angriest at me in the interviews is 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 that, you know, my oath is to uphold the Constitution. I don't have an oath of allegiance to my church.
TOTENBERG: 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 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.
Later, he became deeply concerned about the tone of the confirmation hearings for Supreme Court nominee Robert Bork, an arch conservative. In one of the Wermiel interviews, Brennan observed that it is up to the Senate to prevent the confirmation process from being politicized.
Mr. BRENNAN: The whole business really - talk about self restraint - has to rest on the senators who are conducting the process. I deplore the excesses, but I don't see anything whatever that I or anyone else can do about it.
TOTENBERG: 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.
Steve Wermiel says he too encountered that resistance. Seth Stern, who came to the project after Brennan's death, admits...
Mr. STERN: 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, letting a journalist in the door. And yet that was his choice, and I don't know if there is an answer.
TOTENBERG: The answer, says Stern, may have come from Brennan's daughter, Nancy. You know, she said, we're a family of introverts pretending to be extroverts.
Nina Totenberg, NPR News, Washington.
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