William J. Brennan, Jr.

WILLAM H. REHNQUIST


William J. Brennan, Jr. was appointed to the Supreme Court in the fall of 1956, and retired from it in the summer of 1990. He served on the Court for nearly thirty-four years, a length of time which was exceeded by only five other members of the Court. But he will be remembered for a good deal more than this rather accidental statistic.

At the time Brennan was appointed, Earl Warren had been Chief Justice for several years, and the Court had already handed down its unanimous decision in Brown v. Board of Education. But in many other areas of constitutional law, the "Warren Court" of the 1950s was closely divided between opposing views. What we now think of as the "Warren Court" in these other areas of constitutional law did not really emerge until Arthur Goldberg replaced Felix Frankfurter on the Court in 1962, and thereby provided a reliable fifth vote for the Warren Court's constitutional doctrines of the 1960s. Justices Black and Douglas had been on the Court for many years before he came, acting as heralds or outriders for some of the positions ultimately adopted by the Warren Court. But Brennan's abilities as a judicial craftsman, and his willingness to accept "half a loaf" if that were necessary to obtain a Court opinion, played a large part in translating what had at first been dissenting views into established jurisprudence.

Justice Brennan's opinion for the Court in Baker v. Carr redefined the "political question" doctrine narrowly, and opened up the federal courts to those seeking legislative reapportionment. In New York Times v. Sullivan, his opinion for the Court established new constitutional protections for the media when defending actions seeking damages for defamation. He also wrote the Court opinion in Malloy v. Hogan, which was one of several opinions during this period which held that the Fourteenth Amendment incorporated, as against the states, critical provisions of the Bill of Rights.

I first became acquainted with Bill Brennan in 1972, when I was appointed to the Court. By this time, Warren Burger had replaced Earl Warren as Chief Justice, and the Court had lost its predictable liberal bent. But the skills which Bill Brennan brought to the work of judging enabled him on numerous occasions to put together majorities espousing the side of individual rights in which he believed so deeply. But just as important to the Court as his judicial philosophy, Bill Brennan brought to the work of the Court a personal warmth and friendliness which prevented disagreements about the law from marring the good personal relations among the Justices.

No constitutional doctrine of any particular era is destined to endure forever in all of its manifold details. Changes in the composition of the Court, changes in the times, and changes in the problems which confront the nation will very likely lead to changes in judicial doctrine. But the enduring legacy of Justice Brennan--the high value which he placed on claims of individual constitutional rights asserted against the authority of majoritarian self-government--is in no danger of being forgotten or disregarded simply because he has left the bench. The very idea of judicial review--first espoused by Chief Justice John Marshall in Marbury v. Madison nearly two centuries ago--is based upon the idea that the people who ratify the Constitution intended by that act to place limitations on popular government. So long as the Supreme Court endures, it will have the benefit of Justice Brennan's contributions to constitutional jurisprudence as it examines new questions which pit claims of constitutional rights on the part of the individual against the authority of the majority of the people to regulate their own affairs.