Clerking for Justice Brennan

ROBERT O'NEIL


Serving as a law clerk for Justice Brennan during the 1962 Term was a unique opportunity. The Court's complexion was undergoing marked change. When Dick Posner (now Judge Posner of the Court of Appeals for the Seventh Circuit), and I were invited to be Justice Brennan's clerks, Justice Frankfurter was generally believed to be the Court's most influential member. Before we arrived and the Term began, Justice Goldberg's appointment had profoundly altered the Court's balance of intellectual forces and had enhanced Justice Brennan's influence.

Though Justice Brennan had already managed to bring together more than a few 5-4 majorities for important principles, his views on most civil rights and liberties questions had remained those of a minority. The change in the autumn of 1962 was dramatically sudden. After conference on the very first Friday of the new Term, Justice Brennan returned to his chambers with an expression of what could only be termed triumph. That experience recurred week after week, each group of cases bringing with it a new opportunity for him to join in shaping--or, in some instances, to lead in reshaping--rapidly emerging constitutional principles. That was the year of habeas corpus, of prayer and Bible reading, of bank mergers, of sit-ins, of unemployment benefits for sabbatarians, and of many other issues on which the Justice left an indelible mark.

Yet we did not fully appreciate the completeness of the new consensus. A few days after the end of the Term, Dick Posner and I were reflecting during our daily morning coffee with the Justice. He asked each of us how many times we thought he had dissented that Term. We both guessed it had been about a dozen times. He held up four fingers--the number, we supposed, of dissenting opinions he had written--but in fact the total number of dissenting votes among the hundred and fifty cases during a turbulent Term.

Perfect unison, of course, was not attained. One day I overheard him explaining to Justice Goldberg, whose friend and counselor he had quickly become, why he had not voted to grant certiorari in a case involving a criminal procedure issue Goldberg knew was ripe for change and important to Brennan. Senior Justice looked at junior colleague, asking with some amusement, "And where, Arthur, were you going to get the fifth vote?" The issue was one of the few on which Chief Justice Warren was still the old California prosecutor--something that Brennan knew, but Goldberg did not.

I recall vividly the mountingly influential part Justice Brennan played in the Court's deliberations during the 1962 Term. His colleagues--perhaps the Chief more than others — seemingly sought his views informally and often.

I also recall fondly Justice Brennan's remarkably collegial working relationship with two clerks who had boundless confidence in the Justice's capacity to persuade other members of the Court even of what at first may have seemed to be outlandish positions.

Among other qualities, Justice Brennan will surely be recalled for the care with which he carried out his judicial tasks. He was mindful of details as well as major themes. I vividly recall an exchange during his luncheon visit with the clerks' group that confirmed my belief on that score. One of the less reverent of my fellow clerks questioned the Justice about a footnote in a relatively minor opinion of his earlier that Term. I knew that the Justice had seen and approved the footnotes, though I doubted he had acted with great care. The Justice dispelled my doubt when, smiling at the impertinent questioner, he declared, "Well, Dick, if you'd read the next sentence you'd realize we limited our comments to the _____ Act."

I should have known better. Never since then have I had the slightest doubt that every word bearing the Justice's name (and some that bore a colleague's name though they may have been Brennan suggestions) had been indelibly stored in his memory. That was simply the way he worked. He owed the Court and the Constitution no less. (His total absorption and recall enabled him, at his former clerks' reunion in 1985, to go through the group Term by Term, from 1956 though 1984, naming the clerks and discussing–completely without notes--several key opinions from each of the Terms.)

A quality equally deserving of tribute is that innate modesty which marked the Justice's whole career. You might see it in the puckish delight he took in strolling the sidewalks that border the Court--still unrecognized in his early years there--and asking tourists what they thought went on in that imposing building. Or it might be his offer to hold a place in the ticket line at Union Station for a student headed home for Thanksgiving who dropped his backpack on the Justice's feet while rushing off to make a phone call. (The venue offers added evidence of modesty The Justice himself was waiting to buy a coach ticket to Philadelphia, where he would give the keynote address to a national teachers group. But this was the same terminal where, six years earlier, the Attorney General of the United States had discovered at the lunch counter a New Jersey judge who was expected to dine with the President before his Supreme Court nomination, but modestly assumed he was on his own for dinner.)

The nomination of Justice Brennan brought to general notice a quite different quality--that of courage and conviction. His had been a recess appointment in the fall of 1956. He served for some weeks before confirmation hearings began. During that interval the Court heard argument in several highly sensitive internal security cases. At the start of the hearings before the Senate Judiciary Committee, Senator Joseph McCarthy insisted on knowing how the Justice felt, and even how he had voted, in these cases. Brennan flatly (if politely) refused to divulge his views or his votes. He explained important principles of judicial confidentiality, and in the process taught the Senator and the press some vital lessons about separation of powers--as well as ensuring his confirmation.

The courage he had shown during the hearings was something about which we all knew, though he never mentioned that experience. It did seem, though, to shape his views on the most basic issues of free expression and academic freedom. We always sensed that principle was paramount for him, and that--practical architect of consensus though he was--principle prevailed over all other considerations in the process of shaping precedent. The centrality of principle has to be one of the transcendent values with which he imbued each of us who were privileged to serve with him.

A final quality I would recall from that Term and from the rest of the Justice's career was an abiding insistence on fairness. We learned from him the need for fairness quite as much in small as in large matters, as exemplified in his dealing with a law clerk as well as in dispensing justice for millions of Americans, or in defining the rights of states. He has always believed that trust and integrity and equity among individuals profoundly shape the way we deal with institutions and governments. It would be hard to imagine a finer teacher or a nobler mentor than William J. Brennan, Jr.