The Last Liberal Justice?

Why William Brennan was the twentieth century’s most consequential Supreme Court justice.

A few years before he retired last summer, Supreme Court Justice John Paul Stevens remarked that since 1971, every one of the justices appointed to the Court—he included himself—was more conservative than the justice who was replaced. He allowed there was room for debate about Justice Ruth Bader Ginsburg, and Stevens made his comment before President Obama’s recent appointments. But the big picture is unmistakable. In the 40 years between Lyndon Johnson and Barack Obama, the Supreme Court moved uniformly and inexorably to the right.

There is also no mistaking the consequences. The great liberal decisions of the Warren Court seem far away, not just because so many years have passed. According to some liberals, there have been no truly progressive justices on the Court for many years—only moderates and conservatives. Conservatives have won important battles, most recently in striking down gun-control laws and limits on the corporate funding of political campaigns, and the Court may play an even more prominent role in the future. The Voting Rights Act, probably the most important law of the civil rights era, has a bull’s-eye on its back, and there is a concerted attack on health-care reform.

Meanwhile, it is not even clear what a liberal agenda for the Supreme Court would look like. The policy initiatives that are most important to progressives today—reforming health care, protecting the environment, improving education, addressing economic inequality—require legislative, not judicial, action. Some causes that were paramount to the Warren Court, like racial justice and the rights of criminal defendants, either have taken on a new and more complex form or have been left behind by many liberals. Other issues—rationalizing immigration policy, protecting individual rights while dealing with the threat of terrorism—have a court-centered component but are more complex, morally and institutionally, than, say, the attack on racial segregation during the civil rights era.

Justice Brennan—with the simple subtitle “Liberal Champion”—does not tell liberals how to deal with a conservative Court, or what the progressive judicial agenda might be today. But it does give us, with depth and clarity, a picture of an era when progressive ideas were ascendant on the Court—and of the conservative reaction precipitated by that era. Justice Brennan was, as the book makes clear, central to the Warren Court from the time he joined it in 1956 until Chief Justice Earl Warren’s retirement in 1969. During that period, the Warren Court expanded the rights of marginalized members of society: African Americans in the segregated South; political dissidents; criminal defendants; city dwellers who were all but disenfranchised by malapportioned legislatures; even welfare recipients. Brennan then tried to carry forward what he saw as the work of the Warren Court during the increasingly conservative years that followed. He had occasional victories but often faced frustration and defeat, leading the authors to delicately raise the question of whether Brennan and the Warren Court had overreached.

Justice Brennan gave one of the co-authors—Stephen Wermiel, then the Supreme Court reporter for The Wall Street Journal—extraordinary access during his last years on the Court. Brennan sat for extensive and candid interviews, and he allowed Wermiel to examine his papers on the condition that Wermiel not publish until Brennan retired. Brennan left the bench in 1990 and died in 1997, but the book was not completed until after Seth Stern, a lawyer and a reporter for Congressional Quarterly, joined the project in 2006.

The finished product is an engaging book, smart, fair, and well-paced. You don’t have to be a lawyer to read it; the book handles legal intricacies with a light touch (but without oversimplifying, a considerable accomplishment). Justice Brennan is more about the small-group dynamics of the Supreme Court than it is about legal doctrine, because Stern and Wermiel emphasize, appropriately, the relationships among the justices—most of whom come across as seriously engaged and conscientious, although not free of egoism and idiosyncrasy. The authors are also more concerned with telling Brennan’s story than with working out its implications. Was the Warren Court a liberal power grab by judges who were fatally out of touch with popular sentiment? Was it a one-time response to the particular circumstances of the 1950s and ’60s, never to be repeated? To the extent the authors address these questions, they offer something of a tentative, middle-of-the-road view: that Brennan’s brand of liberalism was wholly justified for a time, but in the end helped cause the backlash that led to Richard Nixon and, eventually, Ronald Reagan.

Brennan was one of the most important judges in American history—his ideological opposite, Justice Antonin Scalia, has described him as probably the most influential Supreme Court justice of the twentieth century—but he was not interesting in the ways that ordinarily make for a must-read biography. His personal life was mostly conventional. He seems to have instinctively recoiled from introspection or self-revelation. And he spent his professional life reading briefs, negotiating with other judges, and writing opinions—not the stuff of high drama.

William Brennan was born in Newark, New Jersey to parents who had emigrated from Ireland and met in the United States. His father was a manual laborer with a primary-school education who became a union leader and then a popular local politician. Brennan was raised as a Catholic, but not, it seems, in an especially rigorous way. “While he continued to attend Sunday school,” Stern and Wermiel report, “he had happier memories of playing pool in the church’s recreation room for teenagers.” Brennan’s Catholicism remained a minor theme throughout his public life—when he ruled in school prayer and abortion cases, for example.

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