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 Catholic
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 Catholics
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
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.
Brennan reaffirmed his commitment to preserving a wide-open public forum two years after Rosenbloom in a dissent in CBS v. Democratic National Committee
Justice Brennan’s role in articulating and defending expansive interpretations of due process and equal protection principles under the Fourteenth Amendment
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.
In Katzenbach v. Morgan
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.
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).
Due process, procedural
Due process, substantive
Obscenity and pornography
Race and discrimination