Brennan, William J., Jr. Summary

  • Last updated on November 11, 2022

Supreme Court justice Brennan created a legal philosophy designed to advance the dignity of all people. The goal of his jurisprudence of “libertarian dignity” was a highly egalitarian and pluralistic order that extended broad protection for freedom of expression and individual self-determination.

The son of an Irish CatholicRoman Catholics;Brennan, William J., Jr. immigrant, Brennan graduated from the University of Pennsylvania (1928) and Harvard Law School (1931). He drew inspiration from his father who rose from laboring as a boiler attendant soon after arriving from Ireland in 1890 to become a city commissioner and director of public safety in Newark, New Jersey. After a tour of duty in World War II (1941-1945) and promotion to the rank of colonel in the U.S. Army, Brennan, a Democrat, soon found himself elevated to the New Jersey superior court in 1949 by Republican Governor Alfred Driscoll, then to the state supreme court in 1952.Eisenhower. Dwight D.;nominations to the Court

Four years later, President Dwight D. Eisenhower, another Republican, announced that he had selected Brennan to fill Justice Sherman Minton’s seat on the U.S. Supreme Court. The appointment of Brennan, a moderate Democrat, occurred during the height of the presidential campaign of 1956 and had definite political overtones. His selection was expected to be well received by CatholicsRoman Catholics;on the Court[court] in the Northeast and by Eisenhower Democrats. Brennan’s emergence as a leader of the Court’s liberal bloc by the early 1960’s, however, led Eisenhower to regret his decision. By the time Brennan announced on July 20, 1990, that he was retiring from the Court for reasons of failing health, his authorship of trailblazing First and Fourteenth Amendment decisions had made him the leading liberal jurist of the last half of the twentieth century. From affirmative action to gender discrimination to general freedom of expression, Brennan’s opinions chartered new ground for post-New Deal America. For his efforts, he received the Medal of Freedom, the nation’s highest civilian award, from President Bill Clinton on November 30, 1993. In a tribute to Brennan, Associate Justice Byron R. White bluntly declared that his former colleague would be remembered “as among the greatest Justices who have ever sat on the Supreme Court.”

Role of the Judiciary

The foundational pillars of Brennan’s jurisprudence can be found in his thoughts on the power of the judiciary and on the oath of office taken by judicial officials. Brennan’s judicial activism was a product of the conviction that it is not possible to accept the deficiencies of U.S. politics, some in the form of unchecked majoritarianism, and simultaneously be faithful to the Constitution. His willingness to cast judges as active participants in the process of adjusting the meaning of the Constitution to suit new challenges and new times is a hallmark of his jurisprudence. He defended an expansive interpretation of the federal habeas corpus power and of rules of justiciability such as standing requirements that affect when and how the courts may use their authority. His aim was to open up the judicial department to the largest number of possible claimants. His opinion for the Court in Baker v. Carr[case]Baker v. Carr[Baker v. Carr], a 1962 Tennessee malapportionment case, opened the door to judicial review of challenges to state electoral arrangements. In 1971 Brennan invited aggrieved parties to use the courts for redress in cases involving federal officials who historically had been shielded from suits by the sovereign immunity doctrine (Bivens v. Six Unknown Named Narcotics Agents, 1971).

Of particular concern to Brennan were threats posed by the modern administrative state. Writing in dissent in a 1976 disabilities case in which the claimant asserted a constitutional right to an oral hearing before the suspension of benefits under the Social Security program, Brennan rejected the government’s appeal to costs and the sufficiency of post-termination procedures (Mathews v. Eldridge, 1976). Lurking behind his defense of judicial superintendence of the constitutional system was a belief that the judicial oath represented a sacred obligation to work for the achievement of a society based on the principle of libertarian dignity. He once declared that members of the legal profession should not rest until they have done everything within their power to ensure that the judicial system does not contribute to the denial of rights or perpetuate suffering due to unredressed injuries.

First Amendment

Speech, freedom ofThe process of freeing expression from significant restraints was initiated before Brennan joined the Court. What came of age with his assistance was a vigorous judicial defense of self-expression that challenged the constitutional bona fides of restraints historically associated with promoting respect for political institutions (flag desecration laws) or protecting the American way of life (libel and obscenity regulations). A relatively early articulation of Brennan’s views on freedom of expression appears in his opinion in New York Times Co. v. Sullivan[case]New York Times Co. v. Sullivan[New York Times Co. v. Sullivan] (1964), a civil rights-related case that challenged a judgment rendered against the Times under an Alabama libel law. Declaring that “debate on public issues should be uninhibited, robust and wide-open,” Brennan set out the now famous “malice rule” that requires public officials to show that allegedly offensive statements are made with “’actual malice’ that is, with knowledge that [they are] false or with reckless disregard of whether [they are] false or not” in order to recover damages. The effect was to make it extremely difficult for public officials to win libel cases. With the chilling effect of these types of suits reduced, the visual and print media enjoyed a measure of freedom unparalleled in U.S. history. Brennan extended the effects of Sullivan in 1971 in Rosenbloom v. Metromedia with a ruling that applied the malice test to a civil libel action based on a radio broadcast about a person’s involvement in an event of public interest. The “public interest” principle significantly expanded the malice rule beyond its original application to public officials.

Brennan reaffirmed his commitment to preserving a wide-open public forum two years after Rosenbloom in a dissent in CBS v. Democratic National Committee[case]CBS v. Democratic National Committee[CBS v. Democratic National Committee] (1973) in which he asserted that the preservation of “an uninhibited marketplace of ideas” requires that people have access to “forums of communication” that will permit the widest possible dissemination of their views. In the Pentagon Papers case, New York Times Co. v. United States[case]New York Times Co. v. United States[New York Times Co. v. United States] (1971), he argued that the Court should make it extremely difficult for the government to enjoin the publication of information even about secret military affairs. The defense of uninhibited expression led him to overturn state and national efforts to restrict flag burning as a form of expression in his final years on the Court. When the Court in 1978 permitted the Federal Communications Commission to place a warning in the file of a radio station that had aired a “Filthy Words” monologue by comedienne George Carlin during daytime hours, Brennan characterized the ruling as “another in the dominant culture’s inevitable efforts to force groups who do not share its mores to conform to its way of thinking, acting, and speaking.” Five years earlier, he had dissented in two obscenity and pornography cases, Miller v. California and Paris Adult Theatre I v. Slaton, on the grounds that the states should exercise little control over the entertainment habits of consenting adults. For Brennan, the republic of the First Amendment must not only permit but also really invite people to “flout majoritarian conventions.” He believed that it was up to the people to decide whether they wished to engage in provocative communication or hear such expression from others. His frankly stated ideal was a “marketplace unsullied by the censor’s hand.”

Fourteenth Amendment

Justice Brennan’s role in articulating and defending expansive interpretations of due process and equal protection principles under the Fourteenth AmendmentFourteenth Amendment was similar to that he had played in interpreting First Amendment law. He skillfully used the due process and equal protection language of the Fourteenth Amendment to bring about an expansion in the sphere of individual rights and liberties. Brennan’s major contribution in the Fourteenth Amendment due process area was not in first-time incorporation cases but in cases that went beyond questions having to do with whether specific Bill of Rights guarantees apply to state action. For example, Brennan defended pretermination hearings in welfare and disability benefits cases such as Goldberg v. Kelly[case]Goldberg v. Kelly[Goldberg v. Kelly] (1970). In like fashion, he did not author separate opinions in groundbreaking substantive due process cases such as Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965) and Roe v. Wade (1973), but he actively lobbied for extending the principles of these cases in Cruzan v. Director, Missouri Department of Health (1990) and DeShaney v. Winnebago County Department of Social Services[case]DeShaney v. Winnebago County Department of Social Services[DeShaney v. Winnebago County Department of Social Services] (1989).

Notwithstanding the importance of Brennan’s opinions in procedural and substantive due process cases, it is his authorship of major opinions dealing with the use of racial and gender classifications in equal protection clause cases that is principally responsible for the reputation he acquired in Fourteenth Amendment law. Brennan understood the potential of the equal protection principle for changing the United States. Especially noteworthy in this regard was his willingness to extend Congress almost unfettered power under section 5 of the Fourteenth Amendment to strike at discriminatory practices. Affirmative actionHe championed the so-called “benign” use of racial categories to remedy the lingering effects of historical discrimination in Regents of the University of California v. Bakke (1978) and Metro Broadcasting v. Federal Communications Commission (1990).

In Katzenbach v. Morgan[case]Katzenbach v. Morgan[Katzenbach v. Morgan], a 1966 voting rights act case, he combined the power of the necessary and proper clause with the deference applied in commerce clause cases to enhance the power of the federal government to address equal protection claims. It was Brennan who led the way in urging the Court to treat gender distinctions as inherently suspect in Frontiero v. Richardson[case]Frontiero v. Richardson[Frontiero v. Richardson] (1973). He was as impatient with delays in purging outdated gender distinctions from the law as he was with delays in making good on the promise to end racial segregation in Green v. County School Board of New Kent County[case]Green v. County School Board of New Kent County[Green v. County School Board of New Kent County] (1968).

Libertarian Dignity

By addressing the difficulties associated with New Deal-style coalitional politics (such as perpetuation of discriminatory practices and malapportionment) and the modern bureaucratic state, Justice Brennan’s jurisprudence can be viewed as an effort to complete the work of the political and judicial liberals who preceded him. His conviction that the United States could satisfy its historical destiny only when it was fully reconciled to being a “facilitative, pluralistic” society and not an “assimilative, homogeneous” one was matched by the belief that the country had reached a point in its development when practice might be expected to fulfill the high demands of theory. His opinions make clear that he believed the time had come to insist on government action that liberated the human will by removing or weakening constraints on the pursuit of preferred lifestyles while also compensating the victims of such constraints, for example, indigents or illegitimate children. Believing that government has a moral obligation to do whatever it can do to ensure comprehensive protection for all rights and redress for all grievances, Brennan had no difficulty in concluding that government officials can be guilty of sins of omission as well as of commission.

Although leading Founders such as George Washington and James Madison were careful to guard the capacity of the government to govern the people and defended institutions and practices that pointed the people in the direction of law-abidingness, Brennan shrank what government might do in the name of self-defense while inviting people to affirm their individual dignity through robust and uninhibited expression. It is not unreasonable to ask whether Brennan was demanding a better world than political life can offer. It is, however, the purity of Brennan’s defense of the ideal of authentic individualism that warrants his identification as one of the major figures of American liberalism in the twentieth century.

Further Reading
  • Brenan’s Supreme Court career can be studied through three handy general reference works on the the three chief justices under whom he served: Melvin I. Urofsky’s The Warren Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2001), Tinsley E. Yarbrough’s The Burger Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2000), and Thomas R. Hensley’s The Rehnquist Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2006). Peter Irons’s Brennan vs. Rehnquist (New York: Alfred A. Knopf, 1994) uses the comparative method to accentuate the distinctive qualities of Brennan’s jurisprudence and the role that he played as the dominant liberal justice during the last half of the twentieth century. The Jurisprudence of Justice William J. Brennan, Jr.: The Law and Politics of “Libertarian Dignity” by David E. Marion (Lanham, Md.: Rowman & Littlefield, 1997) presents a sober constitutionalist view of Brennan’s opinions by offering frequent comparisons with the political and legal thinking of James Madison, John Marshall, Alexis de Tocqueville, and Abraham Lincoln. For a careful review of the events surrounding Brennan’s appointment to the Court, see Stephen Wermiel’s “The Nomination of Justice Brennan: Eisenhower’s Mistake? A Look at the Historical Record,” Constitutional Commentary 11 (Winter, 1994-1995): 515-537. A useful account of Brennan’s first decade on the Court appears in Stephen J. Friedman’s “William Brennan,” in The Justices of the United States Supreme Court, 1789-1969: Their Lives and Major Opinions, edited by Leon Friedman and Fred L. Israel (New York: Chelsea House, 1969). Brennan summarized his own thoughts on constitutional evolution and interpretation in “Reason, Passion, and ‘the Progress of the Law,’” Cardozo Law Review 10 (1988): 3-23 and “Address to the Text and Teaching Symposium,” in The Great Debate: Interpreting Our Written Constitution (Washington, D.C.: The Federalist Society, 1986).

Constitutional interpretation

Due process, procedural

Due process, substantive

First Amendment

Flag desecration

Incorporation doctrine

Judicial activism

Judicial powers

Obscenity and pornography

Race and discrimination

Suspect classifications

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