William J. Brennan Jr.
Official portrait of United States Supreme Court justice William J. Brennan Jr.
Official portrait, 1972
Associate Justice of the Supreme Court of the United States
In office
October 16, 1956 – July 20, 1990[1]
Nominated byDwight D. Eisenhower
Preceded bySherman Minton
Succeeded byDavid Souter
Associate Justice of the
New Jersey Supreme Court
In office
April 1, 1951 – October 13, 1956
Nominated byAlfred E. Driscoll
Preceded byHenry E. Ackerson Jr.[2]
Succeeded byJoseph Weintraub
Personal details
Born
William Joseph Brennan Jr.

(1906-04-25)April 25, 1906
Newark, New Jersey, U.S.
DiedJuly 24, 1997(1997-07-24) (aged 91)
Arlington, Virginia, U.S.
Political partyDemocratic
Spouse(s)
  • Marjorie Leonard
    (m. 1927; died 1982)
  • Mary Fowler
    (m. 1983)
Children3
Education
Military service
AllegianceUnited States
Branch/serviceUnited States Army
Years of service1942–1945
Rank
US-O6 insignia.svg
Colonel

William Joseph Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990. He was the seventh-longest-serving justice in Supreme Court history, and known for being a leader of the Court's liberal wing.[3]

Born in Newark, New Jersey, Brennan studied economics at the University of Pennsylvania, then attended Harvard Law School. He entered private legal practice in New Jersey and served in the U.S. Army during World War II. He was appointed in 1951 to the Supreme Court of New Jersey. Shortly before the 1956 presidential election, President Dwight D. Eisenhower used a recess appointment to place Brennan on the Supreme Court. Brennan won Senate confirmation the following year. He remained on the Court until his retirement in 1990, and was succeeded by David Souter.

On the Supreme Court, Brennan was known for his outspoken progressive views, including opposition to the death penalty and support for abortion rights and gay rights. He authored several landmark case opinions, including Baker v. Carr (1962), establishing that the apportionment of legislative districts is a justiciable issue, Eisenstadt v. Baird, which made contraception legal for unmarried people, and helped solidify the sexual revolution, and New York Times Co. v. Sullivan (1964), which required "actual malice" in libel suits brought by public officials.

Due to his ability to shape a variety of wide opinions and "bargain" for votes in many cases, he was considered to be among the Court's most influential members. Justice Antonin Scalia called Brennan "probably the most influential Justice of the [20th] century."[4]

Early life and education

William J. Brennan Jr. was born on April 25, 1906, in Newark, New Jersey, the second of eight children. Both his parents, William and Agnes (McDermott) Brennan, were Irish immigrants. They met in the United States, although both were originally from County Roscommon in Ireland. William Brennan, Sr. had little education and worked as a metal polisher, but rose to a position of leadership, serving as the Commissioner of Public Safety for the city of Newark from 1927 to 1930.

Brennan attended public schools in Newark, and graduated from Barringer High School in 1924. He then attended the Wharton School of the University of Pennsylvania, where he graduated cum laude with a degree in economics in 1928.[5] While there, he joined Delta Tau Delta fraternity.[6] Brennan graduated from Harvard Law School near the top of his class in 1931 and was a member of the Harvard Legal Aid Bureau.[7]

When he was 21, Brennan married Marjorie Leonard, whom he had met in high school. They eventually had three children: William III, Nancy, and Hugh.[8]

Early legal career

After graduating from Harvard Law School, Brennan entered private practice in his home state of New Jersey, where he practiced labor law at the firm of Pitney Hardin (which would later become Day Pitney).[9][10] During World War II, Brennan was commissioned in the Army as a major in March 1942, and left as a colonel in 1945. He did legal work for the ordnance division. In 1949, Brennan was appointed to the Superior Court (a trial court) by Governor of New Jersey Alfred E. Driscoll. In 1951, Driscoll appointed him to the Supreme Court of New Jersey.

Supreme Court

Supreme Court appointment

Brennan was given a recess appointment as an associate justice of the United States Supreme Court by President Dwight D. Eisenhower on October 15, 1956,[11] shortly before the 1956 presidential election, and was sworn into office the following day.[1] The president's advisers thought the appointment of a Roman Catholic Democrat from the Northeast would woo critical voters in the upcoming re-election campaign for Eisenhower, a Republican.[12] Brennan was also strongly supported by Cardinal Francis Spellman.

Brennan gained the attention of Herbert Brownell, United States Attorney General and Eisenhower's chief legal affairs adviser, when Brennan had to give a speech at a conference (as a substitute for New Jersey Supreme Court Chief Justice Arthur Vanderbilt).[13] To Brownell, Brennan's speech seemed to suggest a marked conservatism, especially on criminal matters.[13]

His nomination, formally submitted to the Senate Judiciary Committee on January 14, 1957,[11] faced a small amount of controversy from two angles. The National Liberal League opposed the nomination of a Catholic, thinking he would rely on his religious beliefs rather than the Constitution when ruling,[12] and Senator Joseph McCarthy had read transcripts of Brennan's speech where he decried overzealous anti-Communist investigations as "witch-hunts." After a confirmation hearing in which Brennan defended himself against McCarthy's attacks and proclaimed that he would rule solely on the basis of the Constitution and not on Church law,[14] he was confirmed by a near-unanimous vote, with only Senator McCarthy voting against him.[15]

Other factors playing into Brennan's appointment were his status as a state court judge – no state judge had been appointed to the High Court since Benjamin N. Cardozo in 1932 – and Eisenhower's desire to appear bipartisan after his appointments of two Republicans: Earl Warren (former Governor of California) and John Marshall Harlan II.[16]

Brennan filled the seat vacated by Justice Sherman Minton. He held the post until his retirement on July 20, 1990, for health reasons; he was succeeded on the Court by Justice David Souter. He was the last federal judge in active service to have been appointed by President Eisenhower. Brennan then taught at Georgetown University Law Center until 1994. With 1,360 opinions,[17] he is second only to William O. Douglas in number of opinions written while a Supreme Court justice.[18]

Warren Court

An outspoken liberal throughout his career, he played a leading role in the Warren Court's expansion of individual rights. Brennan played a behind-the-scenes role during the Warren Court, coaxing more conservative colleagues to join the Court's decisions. Brennan's opinions with respect to voting (Baker v. Carr), criminal proceedings (Malloy v. Hogan), the free speech and establishment clauses of the First Amendment (Roth v. United States), and civil rights (Green v. County School Board of New Kent County) were some of the most important opinions of the Warren Era. Brennan's role in expanding free speech rights under the First Amendment is particularly notable, as he wrote the Court's opinion in 1964's New York Times Co. v. Sullivan, which created constitutional restrictions on the law of libel. It was Brennan who coined the phrase "chilling effect", in 1965's Dombrowski v. Pfister. His close friendship with Chief Justice Warren, who frequently assigned Brennan the task of writing the majority opinion, led to the other justices nicknaming him the "deputy Chief".

In the 1962-1963 term, one of Brennan's law clerks was Richard A. Posner, who later became a founder of the field of Law and Economics and one of the most influential legal scholars in the United States.[19][20][21][22][23]

Burger and Rehnquist Courts

On the more conservative Burger Court, Brennan was a staunch opponent of the death penalty and a supporter of abortion rights and joined the majority in landmark rulings on both issues (Furman v. Georgia (1972) on the death penalty and Roe v. Wade (1973) on abortion). With the ascension of the most conservative member of the court, William Rehnquist, to the position of Chief Justice, and the replacement of Warren Burger and the moderate Lewis Powell with Antonin Scalia and Anthony Kennedy, Brennan found himself more frequently isolated. At times, his opinions would be joined only by Thurgood Marshall since, by 1975, both were the last remaining liberals of the Warren Court (Byron White was the third survivor of the Warren Court during Rehnquist's tenure but often sided with the conservatives, especially on cases involving criminals or abortion). That like-mindedness led to both Brennan and Marshall's clerks referring to them as 'Justice Brennan-Marshall' in the face of the court's heavy conservative opposition to the two. Brennan declared in Furman that he believed the death penalty violated the Eighth Amendment's prohibition on "cruel and unusual" punishment, and for his remaining years on the bench, he and Marshall dissented from every case upholding the imposition of the death penalty. He was able to convince no other justice of this view, but Justice Harry Blackmun would eventually agree in 1994, after Brennan's retirement.

Brennan authored three Supreme Court opinions holding that a plaintiff has a cause of action for money damages (compensatory and punitive) arising solely out of an alleged violation of the Bill of Rights.[24][25][26][27] In Bivens v. Six Unknown Named Agents, Brennan so held with respect to the Unreasonable Search and Seizure clause of the Fourth Amendment.[28] In Davis v. Passman, Brennan extended this rationale to the equal protection component of the Due Process Clause of the Fifth Amendment, in a suit for gender discrimination in employment against a former Congressman (Congressional staffers were explicitly excluded from Title VII of the Civil Rights Act).[29] In Carlson v. Green, Brennan extended this rationale again to the Cruel and Unusual Punishment clause of the Eighth Amendment, in a suit by the estate of a deceased federal prisoner (even though the plaintiff also had a cause of action under the Federal Tort Claims Act).[30]

Brennan's gravesite
Brennan's gravesite

During the same period, Brennan began to adopt and promote a coherent and expansive vision of personal jurisdiction. He authored the sole dissent in Helicopteros Nacionales de Colombia, S. A. v. Hall, defining minimum contacts very broadly for the purposes of general jurisdiction, and influential dissents and partial concurrences in World-Wide Volkswagen Corp. v. Woodson and Asahi Metal Industry Co. v. Superior Court on the subject of specific jurisdiction, holding to a simple "stream-of-commerce" analysis for product liability cases and emphasizing the role of fairness in the Court's analysis of the holding in International Shoe Co. v. Washington. The upshot of Brennan's analysis is an expansion of the jurisdiction of state courts, particularly over corporations; state courts are typically more sympathetic to small, weak plaintiffs than to large, powerful corporate defendants. In this process, he frequently clashed with Justice Scalia over this issue, and uncharacteristically dissented from Justice Marshall's majority opinion on the subject in Shaffer v. Heitner.

In his penultimate and final terms on the Court, he wrote the controversial rulings for Texas v. Johnson and United States v. Eichman, respectively. In both cases, the Court held that the First Amendment protects desecration of the United States flag.

Brennan's wife Marjorie died in 1982. A few months later, in 1983 when he was 77 years old, he married Mary Fowler,[31] who had served as his secretary for 26 years. Brennan's colleagues learned of his second marriage via a short office memo stating, "Mary Fowler and I were married yesterday and we have gone to Bermuda."

Judicial philosophy

Brennan strongly believed in the Bill of Rights, arguing early on in his career that it should be applied to the states in addition to the federal government.[32] He often took positions in favor of individual rights against the state, favoring criminal defendants, minorities, the poor, and other underrepresented groups. Furthermore, he generally shied away from the absolutist liberal positions of Justices Hugo Black and William O. Douglas, being very amenable to compromise in order to win a majority of Justices.[33] Brennan's conservative detractors charged that he was a purveyor of judicial activism, accusing him of deciding outcomes before coming up with a legal rationale for them.[34] At his retirement, Brennan said the case he thought was most important was Goldberg v. Kelly, which ruled that a local, state or federal government could not terminate welfare payments to a person without a prior individual evidentiary hearing.[35]

In the 1980s, as the Reagan administration and the Rehnquist Court threatened to "roll back" the decisions of the Warren Court, Brennan became more vocal about his jurisprudential views. In a 1985 speech at Georgetown University, Brennan criticized Attorney General Edwin Meese's call for a "jurisprudence of original intention" as "arrogance cloaked as humility"[36] and advocated reading the U.S. Constitution to protect rights of "human dignity".

Brennan was also less interested in stare decisis or the avoidance of "absolutist" positions where the death penalty was concerned, as he believed that the deliberate taking of human life by the state, as a punishment, was inherently cruel and unusual. Brennan and Thurgood Marshall, Brennan's closest ally in the Court, concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled that the death penalty was constitutional four years later. Thereafter, Brennan or Marshall took turns, joined by the other, in issuing a dissent in every denial of certiorari in a capital case, and from every decision in a case which the Court did take which failed to vacate a sentence of death.[37]

Brennan also authored a dissent from the denial of certiorari in Glass v. Louisiana. In Glass, the Court chose not to hear a case that challenged the constitutionality of the use of the electric chair as a form of execution. Brennan wrote:[38]

Th[e] evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the "mere extinguishment of life". Witnesses routinely report that, when the switch is thrown, the condemned prisoner "cringes," "leaps," and "fights the straps with amazing strength." "The hands turn red, then white, and the cords of the neck stand out like steel bands." The prisoner's limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and "rest on [his] cheeks." The prisoner often defecates, urinates, and vomits blood and drool.

Brennan concluded by stating that electrocution is "nothing less than the contemporary technological equivalent of burning people at the stake." Brennan voted with the majority in Roe v Wade which legalized abortion nationally and helped craft the decision.[39] In a dissent in a 1972 case, Brennan argued that unequal funding of poor and wealthy school districts violated the Equal Protection Clause .[40] Brennan supported gay rights. He dissented in Bowers v. Hardwick, which allowed states to prosecute consensual homosexual sodomy.[41] In a dissent from a denial of certiorari in 1985, Brennan publicly criticized homophobia, writing "Homosexuals have historically been the object of deep and sustained pernicious hostility, and it is fair to say that discrimination against homosexuals is likely to reflect deep-seated prejudice rather than rationality."[42] He is regarded as one of the most liberal justices in the history of the court.[43]

Quotes

Honors and awards

As a result of his long and distinguished career on the United States Supreme Court, Brennan was honored with many different awards. In 1969, he was awarded the Laetare Medal by the University of Notre Dame, considered the most prestigious award for American Catholics.[46] In 1987, Brennan received the U.S. Senator John Heinz Award for Greatest Public Service by an Elected or Appointed Official, an award given out annually by Jefferson Awards.[47] In 1989, the historic Hudson County Courthouse in Jersey City, New Jersey, which had opened in 1910, was renamed the William J. Brennan Court House in his honor[48] and, in that same year, he received the Freedom Medal.[49] On November 30, 1993, President Bill Clinton presented Brennan with the Presidential Medal of Freedom.[50]

Upon his death, Brennan lay in repose in the Great Hall of the United States Supreme Court Building.[51]

Years after his death, in 2010, Brennan was inducted into the New Jersey Hall of Fame[52][full citation needed] and William J. Brennan High School was founded in San Antonio, Texas, honoring him.[53] Brennan Park across from the historic Essex County Courthouse in Newark, New Jersey, was named in Brennan's honor and a statue of him was erected in front of the Essex County Hall of Records by historian Guy Sterling.[54][55]

See also

References

  1. ^ a b "Justices 1789 to Present". Washington, D.C.: Supreme Court of the United States. Retrieved February 15, 2022.
  2. ^ "HENRY ACKERSON OF JERSEY COURT". December 11, 1970. Archived from the original on October 21, 2017. Retrieved October 20, 2017.
  3. ^ "Souter's Exit Opens Door for a More Influential Justice" https://www.nytimes.com/2009/05/08/us/08court.html Archived February 27, 2021, at the Wayback Machine . Retrieved October 9, 2009.
  4. ^ Brennan, Patricia (October 6, 1996), "Seven Justices, On Camera", The Washington Post, archived from the original on November 19, 2018, retrieved April 21, 2010
  5. ^ Hentoff, Nat (1998). Living the Bill of Rights: How to Be an Authentic American. p. 31. ISBN 9780520219816. Retrieved August 3, 2015.
  6. ^ "Famous Delts". Delta Tau Delta. Archived from the original on March 8, 2014. Retrieved August 3, 2015.
  7. ^ "Harvard Legal Aid Bureau". Law.harvard.edu. October 9, 2008. Archived from the original on February 3, 2010. Retrieved January 3, 2010.
  8. ^ David J. Garrow (October 17, 2010). "Justice William Brennan, a liberal lion who wouldn't hire women". The Washington Post. Archived from the original on November 12, 2012. Retrieved May 27, 2011.
  9. ^ Kim Isaac Eisler (2003). The Last Liberal: Justice William J. Brennan, Jr. and the Decisions That Transformed America. Beard Books. pp. 32–35, 38, 52–53. ISBN 9781587982712. Archived from the original on November 19, 2020. Retrieved October 18, 2020. It is often reported that Pitney, Hardin & Ward, now located in Morristown, New Jersey, was founded by one Supreme Court justice and produced another. But it is not true.
  10. ^ "William Joseph Brennan Jr". Archived from the original on August 26, 2016. Retrieved July 13, 2016.
  11. ^ a b McMillion, Barry J. (January 28, 2022). Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President (PDF) (Report). Washington, D.C.: Congressional Research Service. Retrieved February 15, 2022.
  12. ^ a b James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. ISBN 9780743272261. Archived from the original on May 11, 2011. Retrieved October 20, 2008.
  13. ^ a b Eisler (1993), p. 85.
  14. ^ "I believe that the Senators are entitled to know how you feel...." Archived April 8, 2016, at the Wayback Machine: Hearings on the Nomination of William J. Brennan Jr. to Be an Associate Justice of the U.S. Supreme Court, Princeton University (accessed February 14, 2016).
  15. ^ Eisler (1993), p. 119.
  16. ^ Eisler (1993), p. 84.
  17. ^ Little, Rory K. (1999). "Reading Justice Brennan: Is There a "Right" to Dissent?" (PDF). Hastings Law Journal. 50: 683. Archived from the original (PDF) on August 10, 2014. Retrieved October 1, 2014.
  18. ^ "In the opinion of many, Justice Brennan was the most influential member in the US Supreme Court's history". Archived from the original on January 28, 2021. Retrieved September 5, 2017.
  19. ^ "Richard A. Posner | University of Chicago Law School". www.law.uchicago.edu. Archived from the original on September 27, 2019. Retrieved September 25, 2019.
  20. ^ Witt, John Fabian (October 7, 2016). "The Provocative Life of Judge Richard Posner". The New York Times. ISSN 0362-4331. Archived from the original on September 25, 2019. Retrieved September 25, 2019.
  21. ^ "The judicial philosophy of Richard Posner". The Economist. September 9, 2017. ISSN 0013-0613. Archived from the original on September 24, 2019. Retrieved September 25, 2019.
  22. ^ "Judge Richard Posner explains why we should "burn all copies of the Bluebook"". The Washington Post. Archived from the original on September 25, 2019. Retrieved September 25, 2019.
  23. ^ "Swan Song of a Great Colossus: The Latest from Richard Posner". Law & Liberty. May 13, 2019. Archived from the original on May 17, 2019. Retrieved September 25, 2019.
  24. ^ Robotti, Michael P. (2009). "Separation of Powers and the Exercise of Concurrent Constitutional Authority in the Bivens Context". Connecticut Public Interest Law Journal. 8: 171.
  25. ^ Daniel, Scott R. (2008). "The Spy Who Sued the King: Scaling the Fortress of Executive Immunity for Constitutional Torts in Wilson v. Libby". American University Journal of Gender, Social Policy & the Law. 16: 503.
  26. ^ Vladeck, Stephen I. (2010). "National Security and Bivens after Iqbal". Lewis & Clark Law Review. 14: 255.
  27. ^ Bandes, Susan (1995). "Reinventing Bivens: The Self-Executing Constitution". Southern California Law Review. 68: 289.
  28. ^ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
  29. ^ Davis v. Passman, 442 U.S. 228 (1979).
  30. ^ Carlson v. Green, 446 U.S. 14 (1980).
  31. ^ "Mary Fowler Brennan, 83, Justice's Widow". The New York Times. April 2, 2000. Archived from the original on April 11, 2021. Retrieved April 11, 2021.
  32. ^ Eisler (1993), p. 167
  33. ^ Eisler (1993), p. 13
  34. ^ " THE NATION: A Volley by Brennan; The 'Judicial Activists' Are Always on the Other Side" https://query.nytimes.com/gst/fullpage.html?res=940DE1DF133EF930A35754C0A96E948260 Archived November 8, 2021, at the Wayback Machine
  35. ^ Frum, David (2000). How We Got Here: The '70s. New York City: Basic Books. pp. 228–229. ISBN 0-465-04195-7.
  36. ^ "Justice Brennan Calls Criticism of Court Disguised Arrogance". Associated Press. October 13, 1985. Archived from the original on March 7, 2016. Retrieved July 13, 2016 – via LA Times.
  37. ^ Woodward, The Brethren; Lazarus, Closed Chambers
  38. ^ "Execution News and Developments: 2004–1998". Deathpenaltyinfo.org. Archived from the original on November 3, 2007. Retrieved January 3, 2010.
  39. ^ Wermiel, Stephen (October 4, 2010). Justice Brennan: Liberal Champion. Houghton Mifflin Harcourt. ISBN 9780547523897.
  40. ^ Brennan, William J. Jr. "San Antonio Independent School District V. Rodriguez". Justia.
  41. ^ "Bowers v. Hardwick (1986)". LII / Legal Information Institute. Archived from the original on June 28, 2021. Retrieved June 28, 2021.
  42. ^ Murdoch, Joyce (May 9, 2002). Courting Justice: Gay men and Lesbians at the Supreme Court. Basic Books. p. 248. ISBN 9780786730940.
  43. ^ Ph. D., History; M. A., University of Colorado; B. A., University of Connecticut. "The 7 Most Liberal Supreme Court Justices in American History". ThoughtCo. Archived from the original on June 28, 2021. Retrieved June 28, 2021.
  44. ^ a b c "Constitutional Interpretation by Justice William J. Brennan Jr". Teachingamericanhistory.org. October 12, 1985. Archived from the original on June 13, 2010. Retrieved January 3, 2010.
  45. ^ "Brennan Praises Israel's Protection Of Civil Liberties". Archived from the original on March 24, 2016. Retrieved July 13, 2016.
  46. ^ "Recipients | The Laetare Medal". University of Notre Dame. Archived from the original on February 4, 2021. Retrieved July 31, 2020.
  47. ^ "National – Jefferson Awards Foundation". Archived from the original on November 24, 2010. Retrieved July 13, 2016.
  48. ^ Karnoutsos, Carmela. "Brennan (William J.) Hudson County Courthouse". New Jersey City University. Archived from the original on November 1, 2014. Retrieved October 31, 2014.
  49. ^ Four Freedoms Award#Freedom Medal
  50. ^ U.S. Senate. "Presidential Medal of Freedom Recipients". Archived from the original on July 14, 2004. Retrieved July 1, 2012.
  51. ^ McGonigal, Chris; Farias, Cristian (February 17, 2016). "Historic Photos Show Supreme Court Justices' Funerals Through The Years". Huffington Post. Archived from the original on March 24, 2018. Retrieved September 28, 2018.
  52. ^ The Newark Star Ledger. ((cite news)): Missing or empty |title= (help)
  53. ^ "SCHOOL NAMESAKE". nisd.net. nisd. 2009. Archived from the original on October 18, 2019. Retrieved October 10, 2019.
  54. ^ Schoonmaker, L. Craig. "Brennan Park". NewarkUSA Blog. Blogspot. Archived from the original on July 15, 2015. Retrieved July 8, 2015.
  55. ^ "Justice William J. Brennan Jr. Park". Google Maps. Archived from the original on November 8, 2021. Retrieved July 8, 2015.

Sources

Further reading