BRENNAN, WILLIAM JOSEPH, JR.

BRENNAN, WILLIAM JOSEPH, JR.

William Joseph Brennan Jr. was the first Roman Catholic appointed to the Supreme Court; he served as associate justice of the Court from 1956 to 1990. His unshakable belief in the Constitution as the guardian of individual rights and liberties garnered both respect and criticism.

Brennan was born April 25, 1906, in Newark, New Jersey. He was the second of eight children of William Joseph Brennan and Agnes McDermott Brennan, Irish immigrants who settled in Newark in the 1890s. His father worked as a coal shoveler in a brewery and, according to Brennan, was the most influential person in Brennan’s life. He was also a labor leader and municipal reformer who imbued Brennan with a profound social conscience and an affinity for activism.

Brennan received his early education in
Newark public schools, and attended the Wharton
School of Finance and Commerce, at the
University of Pennsylvania, where he received
his bachelor of science degree, cum laude, in
1928. He earned a scholarship to Harvard University
Law School, where he studied under
FELIX FRANKFURTER, who would later be his
colleague on the Supreme Court. Brennan graduated
near the top of his class in 1931.
He began his legal career in 1932 with the
Newark law firm of Pitney,Hardin, and Skinner.
The firm later added Brennan as a partner and
became Pitney, Hardin,Ward, and Brennan. He
specialized in LABOR LAW and showed a unique
talent for successfully negotiating employeremployee
disputes. During WORLD WAR II, Brennan
served in the U.S. Army and eventually
became the labor branch chief, Civilian Personnel
Division of Army Ordnance. He rose to the
rank of colonel and was awarded the Legion of
Merit for services to the Army and Army Air
Forces procurement programs.
After his army service, Brennan returned to
private practice, counseling large manufacturing
corporations on labor matters. In 1949, he was
tapped by New Jersey’s Republican governor to
serve on the state’s superior court. Assigned to
the appellate division, he distinguished himself
by implementing reforms that relieved congestion
in the court calendar. He was appointed to
the New Jersey Supreme Court, and took his seat
on March 24, 1952.While there, he helped institute
a PRETRIAL CONFERENCE system that shortened
and simplified trials and encouraged
settlements, resulting in fewer and speedier
trials.
Brennan had served only four years on the
New Jersey Supreme Court when, to the surprise
of everyone, including Brennan, President
DWIGHT D. EISENHOWER nominated him to
serve on the U.S. Supreme Court. Eisenhower, a
Republican, would later regard his appointment
of the liberal Democrat as one of his worst mistakes,
along with his earlier appointment of
Chief Justice EARL WARREN. Together, Brennan
and Warren led the Court into an unprecedented
era of judicial activism that was anathema
to conservatives like Eisenhower.
Brennan quickly established himself as a
staunch supporter of the rights and liberties
guaranteed by the Constitution. He insisted that
the BILL OF RIGHTS applies to all U.S. citizens,
whether of the lowest or the highest stature.
Brennan invited controversy with his view that
the Constitution’s guarantees must be constantly
evolving. Said Brennan, “The genius of
the Constitution rests not in any static meaning
it might have had in a world that is dead and
gone, but in the adaptability of its great principles
to cope with current problems.”
Brennan’s broad interpretation of the
Constitution put him at odds with more conservative
court members who construe the Constitution
as narrowly as possible and attempted to
ascertain the ORIGINAL INTENT of the drafters.
Conservatives believe that if a right or freedom
is not clearly conferred by the Constitution or by
judicial precedent, it is not the job of the Court to try to find it there. They place the burden on
the individual to show that the right or protection
sought exists. Conversely, like-minded liberals
(and Brennan was one) approach a case by
asking whether anything in the Bill of Rights
explicitly prevents the Court from finding that
the right or protection exists, and they look to
the government to prove that the right does not
exist. Ironically, when a case involves the use of
government power, the opposing groups tend to
adopt each other’s philosophy: conservatives ask
whether anything in the law prevents the exercise
of the power, and liberals ask whether the
power is explicitly allowed by the Constitution
or some other statute.
In spite of his single-minded determination
to read the Constitution as broadly as possible,
Brennan often acted as a mediator between the
liberal and conservative wings of the Court. A
warm and charming man who was universally
well liked, he used his formidable intellectual
and technical skills in tandem with his innate
diplomacy to build coalitions on some of the
most divisive issues of the time. “You cannot dislike
this man on a personal level, no matter how
destructive he’s been to the values you hold
dear,” declared Charles J. Cooper, assistant attorney
general under President RONALD REAGAN
and an ideological archenemy of Brennan. Brennan
was respected by friends and adversaries
alike. In fact, although he was a lifelong Democrat,
his appointments to the judiciary were recommended
by conservative Republicans.
It is impossible to overstate the effect Brennan
had on the law of the land from 1960 to
1990. He was the architect of pivotal decisions
that shaped U.S. life during those years, including
Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct.
1029, 31 L. Ed. 2d 349, a 1972 decision that
struck down a law prohibiting the distribution
of contraceptives to unmarried women. Brennan
recognized a constitutional “right to privacy”
protecting “the decision whether to bear
or beget a child.” His reasoning in Eisenstadt
became the foundation for ROE V. WADE, 410
U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973
decision that removed many barriers to legal
ABORTIONS.
Early in his career Brennan wrote the majority
opinion in BAKER V. CARR, 369 U.S. 186, 82 S.
Ct. 691, 7 L. Ed. 2d 663 (1962), which allowed
federal courts to hear challenges to legislative
APPORTIONMENT and paved the way for later
Supreme Court cases establishing the concept of
one person, one vote. In NEW YORK TIMES V.
SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed.
2d 686 (1964), Brennan wrote that the FIRST
AMENDMENT protects the press from LIBEL suits
brought by public officials, unless actual malice
is proved. He extended the FIFTH AMENDMENT
right against SELF-INCRIMINATION to prohibit
mandatory registration of Communist party
members in Albertson v. Subversive Activities
Control Board (382 U.S. 70, 86 S. Ct. 194, 15 L.
Ed. 2d 165 [1965]).
Brennan found that the Constitution prohibits
unequal treatment based on race, age, or
gender, in a number of decisions, including IN
RE WINSHIP (establishing use of the REASONABLE
DOUBT STANDARD for juveniles); FRONTIERO
V. RICHARDSON (extending constitutional
scrutiny to gender-based classifications); and
Craig v. Boren (declaring that gender-based classifications
are unconstitutional unless they are
substantially related to the achievement of an
important government objective) (In re Winship,
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d
368 [1970]; Frontiero v. Richardson, 411 U.S.
677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]; and
Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L.
Ed. 2d 397 [1976]).
Brennan was a strong believer that AFFIRMATIVE
ACTION was a way to remedy past discrimination, and he wrote numerous opinions on the
subject. In United States v. Weber Aircraft Corp.,
465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814
(1984), the Court held that it is lawful for
employers to adopt voluntary affirmative action
programs that are race conscious. Brennan
wrote the opinion that upheld limited preferential
treatment on the job for women and minorities
in Johnson v. Transportation Agency of Santa
Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L.
Ed. 2d 615 (1987), and found in United States v.
Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed.
2d 203 (1987), that a one-black-for-one-white
promotions quota did not violate the Constitution.
Finally, in one of his last opinions on affirmative
action, Brennan wrote that the
Constitution permits preferential treatment of
minorities in the awarding of FCC broadcast
licenses (Metro Broadcasting v. FCC, 497 U.S.
547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 [1990]).
Brennan was an adamant defender of free
expression even for the most reprehensible
words or acts. In TEXAS V. JOHNSON (491 U.S.
397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989])
and in United States v. Eichman (496 U.S. 310,
110 S. Ct. 2404, 110 L. Ed. 2d 287 [1990]), he
wrote opinions invalidating statutes that banned
flag desecration, on the grounds that they violated
the First Amendment. Although recognizing
the “special place reserved for the flag in this
Nation,” he stated, “we do not consecrate the flag
by punishing its desecration, for in doing so we
dilute the freedom that this cherished emblem
represents” (Johnson).
He was also an ardent defender of the rights
of children, declaring that we must teach young
people “that our Constitution is a living reality,
not parchment preserved under glass.” He was
appalled by cases in which the Court seemed to
hold that the Bill of Rights does not apply to
schoolchildren, and wrote in one dissent that the
majority’s decision had given school officials the
license to act as “thought police” and taught the
students “to discount important principles of
our government as mere platitudes” (Hazelwood
School Dist. v. Kuhlmeier, 484 U.S. 260, 285, 290,
108 S. Ct. 562, 577, 580, 98 L. Ed. 2d 592 [1988]).
Brennan earned the highest praise as well as
the harshest criticism from his opinions in cases
involving the rights of the accused. He steadfastly
opposed the use of CAPITAL PUNISHMENT,
labeling it state-sanctioned killing, and in one of
his final decisions on the Court, he voted against
an execution by the state of Virginia. Taking
human life, he said, “is God’s work, not man’s.”
When that statement was dismissed as mere sentimentality,
he replied, “The most vile murder
does not, in my view, release the state from constitutional
restraints on the destruction of
human dignity. . . . The fatal constitutional infirmity
of capital punishment is that it treats members
of the human race as nonhuman, as objects
to be toyed with and discarded.” Brennan’s critics
pointed out that his opposition to the death
penalty did not seem in harmony with his support
of women’s right to abortion, which some
consider “state-sanctioned killing.”
Brennan passionately defended the protections
afforded by the Fourth Amendment’s prohibition
of unreasonable SEARCHES AND
SEIZURES. His interpretation of the amendment
helped establish the EXCLUSIONARY RULE, which
holds that any evidence obtained illegally is
tainted and cannot be used against the accused.
During the 1980s, the Supreme Court recognized
a growing number of exceptions to the rule, prompting Brennan to redouble his efforts
to bolster its strength. His advocacy of the rights
of criminal defendants brought him sharp criticism,
particularly from the media, which often
portrayed him as a libertarian who supported
the rights of criminals while ignoring those of
victims. In a radio interview in 1987, Brennan
became uncharacteristically agitated when
asked, “Why do you let some of those creeps go?
They do such bad things, and on a technicality,
you let them go.” Brennan replied sharply,
You and the media ought to be ashamed of
yourself to call the provisions and the guarantees
of the Bill of Rights technicalities.
They’re not. We are what we are because we
have those guarantees, and this Court exists
to see that they are faithfully enforced. These
guarantees have to be sustained—even
though the immediate result is to help out
some very unpleasant person. They’re there
to protect all of us.
Citing advancing age and health concerns,
Brennan retired from the Court in July 1990,
after 34 years as an associate justice. He was
replaced by Associate Justice DAVID H. SOUTER.
Although he eventually slowed his pace considerably,
he continued to be sought as a speaker
and used every opportunity to carry on his campaign
for individual rights and liberties.
During his tenure on the Supreme Court,
Brennan wrote almost 1,600 opinions, many of
which have had a significant impact on the
American justice system. In 1995, as a tribute to
Brennan’s legacy, a number of former law clerks,
along with family and friends created the Brennan
Center. The center, which is housed at New
York University’s School of Law, pursues an
ambitious agenda of litigation, teaching,
research, and advocacy in public policy areas,
including democracy, poverty, and criminal justice.
Brennan died on July 24, 1997, in Arlington,
Virginia.

FURTHER READINGS
Brennan Center for Justice. Available online at (accessed June 19, 2003).

CROSS-REFERENCES
Freedom of the Press; Freedom of Speech; Judicial Review;
Warren Court.