William J. Brennan (1906-1997)
J. Brennan, Jr., was born on April 25, 1906 in Newark, New Jersey. His
parents, William Sr., and Agnes McDermott emigrated from Ireland to the
United States in the late 19th century. William Jr. was the second of
their eight children. He graduated from the University of Pennsylvania
in 1928, and graduated from Harvard Law in 1931. From 1931 until 1949,
Brennan practiced labor law in his hometown, except for four years of
military service as an Army Judge Advocate General (JAG) officer during
World War II. In 1949, Brennan was appointed to the New Jersey Superior
Court. After a year, he was appointed to the Appellate Division of the
Superior Court. In 1952, he was named to the New Jersey Supreme Court.
Brennan was nominated to the Court by President Dwight D. Eisenhower on September 30, 1956, shortly before the 1956 presidential election. Brennan was nominated for several reasons: the Court's so-called "Catholic" seat had been vacant since the death of Frank Murphy in 1949, and Eisenhower had suggested to Francis Cardinal Spellman, a prominent Catholic cleric, that he would appoint a Catholic to the next available seat; and the Republican Eisenhower wanted to demonstrate his ability to transcend political partisanship during the presidential campaign by appointing a Democrat. Brennan fit both criteria. But Eisenhower's third criterion was that his nominee be conservative, which Brennan decidedly was not. Within a short time, Eisenhower would regret this appointment, as he regretted appointing Earl Warren.
Brennan was an affable, likable man. He was also extremely capable of forging temporary alliances with other Justices in order to obtain a majority of five votes. Although Brennan came to the Court shortly after the Court had decided its two Brown v. Board of Education decisions, his appointment was crucial in creating what became known as the Warren Court. Brennan is credited with writing the Court's per curiam opinion in Cooper v. Aaron (1958), which concerned the refusal of Arkansas Governor Orval Faubus to integrate Little Rock Central High School. In that opinion, the Court held Faubus' actions unconstitutional, and declared that "the federal judiciary is supreme in the exposition of the law of the Constitution." This very broad claim of authority is quite controversial, for it suggests a form of judicial supremacy over the other federal branches. In Brennan's first term, the Court decided 12 cases involving laws directed at the Communist menace. Each case was decided against the government, and in favor of the individual. One case was Jencks v. United States, which requires the government to provide a criminally accused any exculpatory evidence. Another two cases concerned whether former membership in the Communist Party was sufficient evidence to deny admission to the bar of an applicant. And finally, in Yates v. United States, the Court held that the Smith Act (an anti-Communist law) permitted criminal prosecution only if the person charged incited illegal action by speech. Speech that advocated the overthrow of the government abstractly (rather than concretely) was protected by the First Amendment.
But it wasn't until 1962, when Felix Frankfurter was replaced by Arthur Goldberg, that the liberal members of the Warren Court had a solid five-person majority. By this time, Brennan was an extraordinarily influential member of that bloc. Brennan worked well with Chief Justice Warren, and with his fellow Justices. His writing style at this time rarely invoked absolutes. This differentiated him from Justices Hugo Black and William O. Douglas. By "balancing" the competing interests of the government and the individual, Brennan's opinions made him appear more centrist than he probably was. This "balance," however, usually was tilted in favor of the individual and against the government. Shortly before Frankfurter suffered the stroke that caused him to retire, the Court issued its opinion in Baker v. Carr, which held unconstitutional Tennessee's reapportionment of legislative seats. Brennan's opinion for the Court instituted the "reapportionment revolution," which continues to resonate every time states reapportion their election maps. In 1963, the Court began in earnest its constitutional criminal procedure revolution. In Gideon v. Wainwright it held unconstitutional Florida's law denying Clarence Gideon a lawyer when the punishment could include imprisonment. The Court overruled Betts v. Brady in Gideon. In Malloy v. Hogan (1964), the Court held the self-incrimination privilege applicable to states, and in 1966 decided Miranda v. Arizona, which required police to warn a suspect of the consequences of any confession. These cases completed much of the "incorporation" of the first eight amendments to the Bill of Rights into the due process clause of the 14th Amendment. This meant that most provisions of the Bill of Rights applied not just to federal action (as originally written and interpreted), but to actions by the states as well. Third, the Court re-shaped the religion clause of the First Amendment. In Engel v. Vitale (1962) and Abington v. Schempp (1963), the Court held state-sponsored prayer in public schools violated the Establishment Clause. The Court also altered the interpretation of the free exercise clause in Sherbert v. Verner (1963), holding that a state cannot interfere with a person's free exercise of religion without showing a compelling interest.
In 1969, Earl Warren was succeeded as Chief Justice by Warren Burger. However, Justice Brennan remained an influential and powerful member of the Court. In the early 1970s, the Court held capital punishment unconstitutional (Furman v. Georgia, 1972), and declared within the right of privacy the right to choose whether to have an abortion (Roe v. Wade, 1972). But the Court later upheld revised death penalty statutes (Gregg v. Georgia, 1976), and revised (but did not reverse) its decision in Roe. In capital punishment cases, Brennan became an absolutist, dissenting in all cases coming to the Court. By the late 1970s, and continuing until his retirement, Brennan was less often in the majority. By the end of the 1970s, Brennan had become well known for his vociferous and numerous dissents. Even during this period, Brennan remained an intellectual leader and one of the most influential Justices in the history of the Supreme Court.
Brennan believed in a living Constitution. That is, he believed "[c]urrent Justices read the Constitution in the only way that we can: as twentieth-century Americans." [This was from a talk, later turned into a written essay Brennan gave in the mid-1980s.] The Justices could not, in Brennan's view, read the Constitution as it was originally intended, for that was impossible. Brennan's view of constitutional interpretation led Republicans to look to originalists (that is, those who believed the Court was to apply the Constitution as it was originally intended to apply) to appoint to the Supreme Court, including Justice Antonin Scalia. This debate remains unresolved.
Brennan remained on the Court for 34 years, and authored over 1300 opinions.
Brennan married Marjorie Leonard in 1928. They had three children. After her death in 1982, Brennan married Mary Fowler in 1983. He died on July 24, 1997.
Further reading: Kim Isaac Eisler, A Justice for All: William J. Brennan, Jr., and the Decisions that Transformed America (1993); Michael Ariens, On the Road of Good Intentions: Justice Brennan and the Religion Clauses, 27 Cal. Western L. Rev. 311 (1991).