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    Without Artifice

    December 6, 2010  | 

    William Brennan, one of the great Supreme Court justices of the twentieth century, did not attract attention. A 1966 cover story on the Warren Court in the New York Times Magazine failed to mention him. He sat several rows behind President Johnson at Martin Luther King’s funeral, but his presence—unlike that of several of his flashier colleagues—went unremarked by the press. Once, he attended a bar association meeting in Pittsburgh and practically had to jump out of the way of lawyers seeking autographs from the actor who played Perry Mason on television. An article on the event in the Pittsburgh Post-Gazette reported that “Mr. Justice Brennan came unheralded. He left unfollowed.”

    Nonsense: every justice followed Brennan. If Johnson was master of the Senate, Brennan was king of the Court. Installed by President Eisenhower through a recess appointment, he served from 1956 to 1990. During the 1962–63 term at the height of the Warren years, he angled himself into the majority in nearly every case. He made a career of approaching his colleagues with a “Hiya, pal,” taking their elbow and seeing what he could do to get them to join his opinion. You don’t like the section on damages? Consider it cut. You think Hugo Black and William Douglas (the two justices to the left of Brennan) are going too far? I’ll rein them in. There were frequently one or two justices—more on the Rehnquist Court—he failed to corral, but to those without dogmas fixed like bayonets he could be awfully persuasive. At the beginning of each term, he welcomed his new law clerks by opening his hand and showing them the most important thing they needed to know about the job: five fingers, a majority. With it, he told them, you can do anything around here.

    The wildly inaccurate—and, to an extent, self-cultivated—view of Brennan as a cipher persisted until the publication of The Brethren (1979), by Bob Woodward and Scott Armstrong, and Super Chief (1983), by Bernard Schwartz. The Brethren was a gossipy, melodramatic account of the Court based on interviews with law clerks and some justices. Brennan called it a “Goddamn shit sheet” and emphatically denied having fed information to the authors, although his clerks were less discreet. (Justices Harry Blackmun, Lewis Powell and Potter Stewart secretly sat for interviews.) Super Chief was an academic biography of Earl Warren that, unbeknown to most, relied on Brennan’s “term histories”—informal write-ups of the details of each case, including who switched votes and who slung mud. Both books revealed that Brennan was something of a man behind the curtain. The reassessment continued in the 1980s, in law review articles and in an essay in The Nation by law professor Stephen Gillers, who argued of Brennan, “It is increasingly clear that he deserves much of the credit for fashioning the legal theories that could support the progressive decisions of the last quarter-century, and for then persuading a majority of his colleagues to accept them.” Thirteen years after his death, Brennan is now widely regarded as a figure of tremendous consequence, not merely as a justice but as a key participant in the civil rights and women’s rights movements, and the criminal law revolution that helped bring Richard Nixon to power. Conservative jurists like Richard Posner and Antonin Scalia readily acknowledge his impact (Scalia called Brennan “probably the most influential justice of the century”). Seth Stern and Stephen Wermiel, the authors of an indispensable new biography, Justice Brennan: Liberal Champion, call Brennan “the most forceful and effective liberal ever to serve on the Court.”

    * * *

    Superlatives like these are unquantifiable and a little silly, but in this case they serve a welcome proselytizing function. Lawyers and law professors view Brennan as one of the giants of American jurisprudence, but even today few outside the profession seem to know who he was. Although he shaped many of the major decisions of the Court, his name did not always grace the opinions. He advanced the legal theory of privacy in Griswold v. Connecticut (1965), which held that states may not ban the use of contraceptives, but Justice Douglas was the opinion’s author. He whispered into the ear of Chief Justice Warren in several of the major criminal procedure cases of the 1960s, like Miranda v. Arizona (1966), requiring the familiar warnings to criminal suspects, and Terry v. Ohio (1968), delimiting police stops and searches, but did not write the opinions. (Stern and Wermiel reveal, however, that he ghostwrote Terry.) When Justice Blackmun emerged as a leader in the Court’s abortion jurisprudence, Brennan was happy to avoid the limelight, which for a liberal justice can become a harsh and dangerous glare. Blackmun, who wrote the Court’s opinion in Roe v. Wade (1973), received more than his share of death threats, although Brennan was not overlooked.

    Brennan’s obscurity also owes something to his personality. He was not a grandiose striker of poses like Warren Burger or Anthony Kennedy, a brilliant polemicist like Scalia or Black, or a freewheeling nut like Douglas. Nor was he the face of the Court. During the 1950s and ’60s, Earl Warren deliberately assumed that role, lending the Court’s major decisions—especially Brown v. Board of Education (1954)—the dignity and gravity commanded by the office of chief justice. Brennan was less imposing. A diminutive first-generation Irish-American whose father was a city commissioner in New Jersey, Brennan “struck almost everyone who met him as completely unassuming.” Stern and Wermiel write that he “took a certain puckish delight in strolling the sidewalks around the Court and innocently asking tourists what they thought went on inside its walls.” He was gregarious and funny, warm to Court staff and a paterfamilias to his clerks, even if he remained guarded about his life. He linked arms with colleagues in the hallway and always tried to leave a room having made a friend rather than an enemy.

    Brennan’s opinions do not sing. He was no Oliver Wendell Holmes, whose concise and lucid decisions distilled tough legal and philosophical problems into luminous phrases. One of the chief criticisms of Brennan’s opinions is that elegance and even clarity were frequently sacrificed to the need to accommodate colleagues’ concerns in order to secure their votes. There is some truth to this, although it could also be said that, unlike Holmes, Brennan was a lawyer’s judge rather than a judge’s judge: instead of working from some abstract philosophy, he remained nimble, ready to compromise, eager to win. Five was the most important number, but six was even better, and seven called for cigars. In an era when unanimous decisions were still possible in controversial cases, Brennan preferred making incremental steps with a strong majority to eking out a righteous 5-4 thumb-noser.

    He brought all his powers to bear in Baker v. Carr (1962), one of his major triumphs. In that case the Court for the first time asserted jurisdiction over claims that the unequal size of legislative districts—one legislator for a tiny rural district, and one for a huge urban district—violated the Equal Protection clause. Brennan strove mightily to persuade Justice Stewart, a centrist, to be his fifth vote. After compromising extensively and winning his man, Brennan unexpectedly got a sixth vote from Justice Tom Clark, who emerged willing to go even further in resolving the case. Clark would not merely assert the Court’s jurisdiction over reapportionment cases generally but would actually rule that the districting scheme in the present case was unconstitutional. Stewart refused to take that additional step, and Brennan found himself in the position—not for the only time—of having to hold together a coalition that threatened to unravel at both ends. Rather than sacrifice Stewart’s vote, Brennan kept the opinion narrow for a 6-2 victory. (One justice recused himself.) Having laid the groundwork that courts could hear reapportionment cases, Brennan waited for later opportunities to establish the substantive principle that the Equal Protection Clause requires legislative districts that produce “one person, one vote.” Warren called Baker the most important case of his tenure on the Court.

    The ten pages of Justice Brennan: Liberal Champion devoted to recounting Brennan’s maneuverings in Baker v. Carr are riveting. So are similar passages on Brennan’s other big wins, including Cooper v. Aaron (1958), enforcing desegregation in Little Rock; New York Times v. Sullivan (1964), holding that the First Amendment barred Southern authorities from suing newspapers or civil rights activists for libel; and Goldberg v. Kelly (1970), preventing officials from summarily cutting off welfare benefits. These passages are just a few of the fruits of an extraordinary collaboration: Brennan “authorized” Stern and Wermiel’s book in 1986, four years before retiring. He opened his files completely to Wermiel, the former Supreme Court reporter for the Wall Street Journal; allowed him to observe conferences between justice and clerks; and sat for sixty hours of interviews. (Stern is a reporter for Congressional Quarterly.) The authors also interviewed other justices and 100 of Brennan’s 108 former law clerks. The inside flap of the book proudly proclaims, “No biographer has enjoyed this kind of access to a Supreme Court justice,” and, for once, the jacket copy seems plausibly modest.

    * * *

    The price for such cooperation is often a fawning portrait, but that is certainly not the case here. Justice Brennan: Liberal Champion is not on the whole a negative assessment, but Stern and Wermiel are plentifully critical of Brennan—too harshly in places. For instance, they chide him for inviting state courts to make up for the Supreme Court’s conservatism in the 1970s and ’80s by interpreting their state constitutions expansively. They also think little of his conception of the “living Constitution,” even though they are wrong to suppose that a static document that does not respond to society’s evolving needs can survive for another dozen generations. Yet they find much to admire as well, and prompt a generous re-examination of the “activist” label commonly associated with Brennan—a label he did not embrace but did not completely eschew, either. This is not the first biography of the justice, but it is the first comprehensive study. The authors proportion it nicely, interweaving biographical information, case histories (but not a numbing litany of them) and details of Brennan’s tactical moves into an enjoyable narrative. The book is a major contribution to the history of the Supreme Court.

    The first point to note about Justice Brennan: Liberal Champion is its rich but discriminating level of detail about Brennan’s life on the Court. It has long been known that he assiduously courted his colleagues’ votes, but who knew that he was not above lobbying their law clerks directly? Brennan and Warren met privately each week before the justices’ formal conference at which cases were discussed and opinions assigned; Warren frequently solicited Brennan’s advice on which justice should take which case. We learn that Justice William Rehnquist casually referred to noncitizen children as “wetbacks,” upsetting his colleagues. (This from the man who as a law clerk in 1952 recommended reaffirming Plessy v. Ferguson‘s separate but equal doctrine; he claimed before the Senate Judiciary Committee merely to have been channeling the justice’s views.) Additional evidence that Justice Felix Frankfurter was an insufferable and tactless pedant is marshaled in abundance; Justice Douglas liked to call him “little bastard,” and Brennan referred to the equally conservative but much cooler Justice John Marshall Harlan II as “Frankfurter without mustard.” Chief Justice Burger, to whom history has been not at all kind, emerges yet again as a boob and a bore.

    One area where the book could stand more anecdotal texture is its portrayal of Brennan’s storied friendship with Justice Thurgood Marshall. The two frequently voted together, and became heroes on the left by dissenting in lockstep whenever the Court refused to stop an execution; an iconic photo shows them walking away from the camera down the hallways of justice. It has been widely reported that once he joined the Court, Marshall, a legend for arguing Brown and many other cases on behalf of the NAACP, sloughed off work and grew resigned after years in dissent, letting down many friends and fans. There are hints that Brennan was among them, but he seems to have been reticent with his chroniclers on the issue—as he was with other painful chapters in his personal relations. A footnote states that Brennan asked Wermiel “to use ‘great discretion’ when addressing his disappointment about Marshall. ‘It could be horribly misunderstood.’ ” It appears less that the authors complied with this request than that Brennan offered them little material to work with, other than a general sense of sadness and frustration about Marshall’s long decline.

    * * *

    The book’s most remarkable disclosures provide new detail about Brennan’s refusal to hire female law clerks. Like most justices, Brennan relied on friends in the academy and on the federal appeals courts to recommend recent law school graduates to clerk in his chambers. Yet in 1970, when Stephen Barnett, a former clerk turned professor at the University of California, Berkeley, called Brennan to recommend one of the top students in the class, Alison Grey, Brennan balked. “Send me someone else,” he said, “making it perfectly clear,” according to Stern and Wermiel, “that he meant a male clerk.” Justices Douglas, Black and Abe Fortas had all hired women by that time, but it was a step Brennan would not take. Three years later, when Barnett again recommended a woman—the future federal judge Marsha Berzon—Brennan again demurred. To his great credit, Barnett then wrote Brennan a respectful but outraged letter, which Stern and Wermiel quote at length:

    Mr. Justice, I don’t believe you realize how serious this matter is. For one thing—looking only at the pragmatic side—I am very much afraid that the subject will come out in the open and embarrass or threaten you. Your blanket refusal to accept a woman clerk is not just “sexist,” and not just contrary to government policy; it seems to me that it is literally unconstitutional…. I can’t believe you would want your daughter or granddaughter, say…to be denied an opportunity to clerk for the Supreme Court—and all the subsequent opportunities that flow from that—because the Justice in question simply refused to hire a woman. With all the admiration I have for you and what you stand for, I just cannot believe that, on reflection, you will continue a policy that is both unconstitutional and simply wrong, and is so much at odds with your great principles.

    After receiving the letter, Brennan called Barnett and admitted his mistake. “Steve,” he said, “you must win all your cases.” Brennan hired Berzon as his first female law clerk for the 1974–75 term, and the relationship was mutually agreeable, with Berzon professing to be charmed by Brennan’s “generational chivalry.” Stern and Wermiel compliment Brennan for recognizing his error rather than responding defensively. Nevertheless, he waited seven years before hiring another female clerk. Casting his lot with poor company indeed, Brennan echoed Chief Justice Burger, who was known to grouse that if a woman were ever appointed to the Court, he would have to resign. (Neither justice did so when Sandra Day O’Connor joined the Court in 1981, but Brennan’s relations with her—perhaps for political reasons—were never warm.)

    Brennan explained privately that “he worried about having to watch what he said if a woman clerk worked in his chambers. He did not feel he could have the same sort of relaxed rapport with a female clerk or colleague.” He liked to swear and tell crass jokes, and tended to be solicitous and paternalistic toward female attorneys arguing before the Court. Yet he never connected these prejudices to the sex discrimination cases he heard and pushed toward liberal outcomes during the same years. In many of those cases, future justice Ruth Bader Ginsburg argued on behalf of the ACLU and Brennan worked the votes—a kind of dance from across the bench. In an interview with Stern and Wermiel, Ginsburg refused to hold Brennan’s hiring practice against him. “He was a man brought up in a certain age,” she said. Focusing more on his words than his actions, she called him her hero and sent him a copy of one of her own gender-discrimination opinions in 1996, with the warm note, “Dear Bill, See how the light you shed has spread!”

    This new evidence of Brennan’s sexism is distressing for what it says about the legal profession and one of its great progressives. Stern and Wermiel pivot on these revelations to make the most interesting and provocative point in Justice Brennan: Liberal Champion—one they would have done well to develop even further. They contend that Brennan’s treatment of women was one of many areas where his personal beliefs and practices were far more conservative than his rulings, and suggest that this calls for a recalibration of the “judicial activist” label that seems to follow every mention of his name. He was the Court’s great champion of racial equality, yet he employed African-American servants and hired only one black clerk, in 1990 (the year before Clarence Thomas replaced Marshall on the Court). He consistently voted to separate church from state, even though he vainly sought approval from his own Catholic church for most of his career. In New York Times v. Sullivan, Brennan wrote “one of the strongest defenses of freedom of speech ever by the Court,” yet journalists so infuriated him that he seems to have begun swearing whenever his biographers mentioned the press. And while he provided a strong vote to protect a woman’s right to choose, he told Wermiel, “I wouldn’t under any circumstances condone an abortion in my private life.”

    * * *

    These paradoxes must be treated cautiously. It would be facile to slap them onto the table as evidence that Brennan was some sort of judicial minimalist. He was an activist, and thank God, too, or we’d be living in Robert Bork’s America, segregated lunch counters and all. Wisely, Stern and Wermiel do not question that ultimate conclusion, but their reporting does broaden our understanding of a term bandied about these days with all the care of a drunken frat boy throwing darts. After all, if an activist is a jurist who substitutes his judgment for that of elected officials, then Scalia, Thomas and Rehnquist are guilty too. Overruling legislatures is a necessary if prickly and little-understood feature of judicial review, which has been at the heart of American government since Marbury v. Madison in 1803. But when conservative justices these days strike down gun control laws, affirmative action plans or campaign finance rules, they do so while professing to abhor judicial power, hiding behind neutral-sounding methods of interpretation like textualism (for statutes) and originalism (for the Constitution). These doctrines satisfy Republican electioneers and many voters, but they collapse as value-laden pretenses upon any serious inspection. Every justice is involved in a fundamentally political enterprise, but these days it is only the conservatives who feel a need to wear masks to the ball—and you should never dance with a partner who can’t look you in the eye. Brennan’s watchword was human dignity, and to protect it he interpreted individual rights expansively. To his credit, he did so without artifice.

    But even if Brennan believed in an assertive judiciary, Stern and Wermiel show that he did not simply use the Constitution to enact his own politics as law. He was no radical, like Douglas or Black. His biography reveals a moderately liberal man captured by the conventions and prejudices of his times. His disappointing treatment of female clerkship applicants shows that rather than writing his preferences into the Constitution, he was interpreting the Constitution as he understood it. He realized that, in our country’s greatest aspirations, “equal protection of the laws” means more than segregated restrooms and different pay scales for women, even if the implications of those judgments made him personally uncomfortable—or, in the case of hiring women, defiant.

    Brennan’s biggest weakness was, however, linked to his activism. He relied too heavily on persuasion and the cultivation of allies instead of doctrinal consistency and soundness. More than one academic accused him of mis-citing precedents in order to reach a result. That is putting things too strongly, but it is true that Brennan’s style—hard on votes, loose on details—necessarily rendered many of his achievements ephemeral. He was like a brilliant architect who ordered discount mortar: once he no longer had the numbers to hold his great structures together, some began to collapse, especially in the areas of criminal procedure and affirmative action. In the 1970s and ’80s, Brennan increasingly gave in to anger and dissented bitterly when this happened—in the process, alienating new colleagues like Kennedy and O’Connor whom he might otherwise have collected. But even toward the end of his tenure he would occasionally emerge, twinkle-eyed, with a surprise victory, and there would be doughnuts the next morning. If he were serving today, he would find his match in the cagey young chief justice, all smiles and reasonableness until he begins blasting the law back to the stone age. But Brennan would have swung him, at least in a case or two. The country would have been the better for it.

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