How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it?
There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.
The Brennan legacy (1) likely exists in multiple forms. First, as a philosophical matter, Brennan did more than perhaps any other Justice to flame the paramount value of the Constitution and of the rule of law in terms of protecting individual human dignity. Second, in some specific areas of law Brennan contributed or advanced concrete tests and ideals that already seem to have become bedrock principles. Finally, there are areas of contemporary law in which Brennan's contributions will continue to frame the debate, even if their grasp is eroding.
This essay will examine the influence of Brennan on five facets of American law: government liability and accountability; freedom of speech; separation of church and state; the death penalty; and equality. In each of these fields, as with his entire body of Supreme Court jurisprudence, Brennan developed an overarching driving force that may be his most lasting contribution to legal thought in the United States--the idea that the Constitution, the courts, and indeed, the government itself should be dedicated to the principle of advancing individual human dignity. More than any Justice in history, Brennan advanced the idea that, as he said, "[f]rom its founding, the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders." (2)
In the years before Justice Brennan joined the Court, there were rare, sparse references to human dignity or individual dignity as a constitutional value that grew more frequent in the Warren Court era. But Brennan made human dignity a focal point, first of speeches, (3) and then of his Court opinions, albeit more often in dissent than in majority opinions. (4) For Brennan, although the question of how the Constitution protected and advanced human dignity remained somewhat amorphous, the value of human dignity was a driving force behind providing greater protection for the rights of criminal defendants; finding the death penalty to be cruel and unusual punishment in violation of the Eighth Amendment; and advancing equality for different populations in American society. (5)
Since Justice Brennan left the Court in 1990, a number of Justices have discussed the concept of human dignity in their opinions. (6) Although none has embraced the concept as broadly as Brennan did, Justice Kennedy has advanced the idea with greatest frequency, perhaps most powerfully in his opinion striking down the Texas anti-sodomy law. (7)
There is little doubt that Justice Brennan took great pride in helping to make the concept of protecting human dignity a part of the constitutional fabric. As he said in a 1987 speech, "[t]he vision of human dignity embodied in our Constitution throughout most of its interpretive history is, at least for me, deeply moving. It is timeless. It has inspired citizens of this country and others for two centuries." (8)
GOVERNMENT ACCOUNTABILITY AND LIABILITY
Justice Brennan had a lasting impact in changing the paradigm of government interaction with its citizens. Through a series of unrelated opinions and doctrines, he built a body of case law that, viewed as a whole, sought to make government more directly accountable to the people, altering the traditional notion that citizens seek government accountability and responsibility through the electoral process. Taken together, several areas of law in which he wrote important opinions create a new vision, one that has taken hold in various forms and with different degrees of longevity and tenacity. …