Justice on a Grand Scale: William J. Brennan, 1906-1997

By Wermeil, Stephen J. | Newsweek, August 4, 1997 | Go to article overview

Justice on a Grand Scale: William J. Brennan, 1906-1997


Wermeil, Stephen J., Newsweek


In one of my first interviews with Justice William J. Brennan Jr. as I began work on his biography more than a decade ago, I was caught totally off guard by a stern lecture delivered by this legendary jurist who was usually so warm, charming and unassuming. In that instant, Brennan showed his intense dislike of his public image as the Supreme Court's consummate politician, the one who won votes and built unexpected consensus by glad-handing his colleagues. "Kill off that silly notion of an amiable Irishman going around cajoling and maybe seducing colleagues -- that just doesn't happen," he said.

How, then, to explain the influence that even his most ardent conservative critics conceded was of unparalleled proportions? Frankly, the tale of justice Brennan is far less exciting than the mythical image which survived right up to his death last week at the age of 91. His influence came from his ability to articulate a consistent, forceful approach to the Constitution for a sustained period of time -- 34 years, making him the sixth longest-tenured justice in history. His influence came from his ability to make his expansive view of rights in the Constitution a more attractive, more appealing alternative for other justices than the austere, pinched reading of the Constitution advanced by conservative colleagues, from Felix Frankfurter and John M. Harlan to William H. Relinquist and Antonin Scalia.

His influence came from a keen intellect and sharp legal skills that enabled him to craft practical solutions to constitutional problems. His influence came from his extraordinary, even aggressive, willingness to accommodate the requests of other justices for changes in his draft opinions if that is what it took to amass five votes -- and if the end result was still substantially in line with Brennan's objectives. And his influence was aided, no doubt, by his infectious warmth, which enabled him to get along with all of the 22 other justices with whom he served. Indeed, despite his protestations about the image of a cajoler, many of the 109 law clerks who served him between 1956 and 1990, when ill health forced him to retire, have vivid memories of his walking off to the court's weekly conferences arm in arm with Justices Harlan or Harry A. Blackmun or Lewis F. Powell.

There is a grand scale and a narrow one on which I think Brennan would want his legacy to be measured. The narrow one consists of the many individual pieces of the puzzle of constitutional law -- the more than 1,350 opinions that he wrote, including 461 majority opinions. Among his major decisions were Baker v. …

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