Today in 1990: Justice William Brennan retires from the Supreme Court

July 20, 2012

Today in Legal HistoryOn July 20, 1990, “probably the most influential Justice of the [20th] century” retired from the U.S. Supreme Court.

That Justice is William J. Brennan, Jr., and the above quote can be attributed to Antonin Scalia.

Considering Scalia’s and Brennan’s starkly opposing ideologies, it seems hard to believe that Scalia would acknowledge Brennan thusly.

After all, Scalia’s renowned originalist judicial philosophy is the categorical opposite of Brennan’s, which this quote from Brennan himself sums up nicely:

“For 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 and current needs.”

However, just because Scalia and Brennan disagreed on just about every issue doesn’t mean that Scalia is above giving credit where it’s due.

And credit is certainly due to Brennan for his influence on the Supreme Court.

Widely acknowledged as a strong advocate for liberal causes, Brennan is credited as being one of the major forces behind the Warren Court’s marked expansion of individual rights.

However, it wasn’t because Brennan was immovably entrenched in his views, but because he was an adept consensus-builder.

Instead of digging in his heels, Brennan did whatever he could to achieve a majority for his rulings – and the bigger majority the better.

Though this sometimes meant sacrificing some of the legal holdings that would have otherwise been included in Supreme Court opinions, it was worth it to Brennan in order to secure the majority he desired.

Perhaps the best example of this is 1962’s Baker v. Carr.

Baker involved a lawsuit by Charles Baker, a resident of Shelby County, Tennessee (wherein Memphis is located), claiming that the current congressional districts within the state were unconstitutional since some of the rural districts had about a tenth of the people as his own.

Unfortunately, the judiciary had never previously addressed redistricting (with many arguing that the issue was a non-judiciable political question), so the Court had that additional issue to address in its ruling.

In the end, Brennan, the majority opinion’s author, was able to assemble enough Justices to rule that redistricting was, in fact, a judiciable issue.

However, despite the wishes of other Justices and Brennan himself to rule on the constitutionality of Tennessee’s congressional districts, Brennan maintained the coalition and simply remanded the issue back to the state courts.

Nevertheless, Brennan could see the big picture: once the issue was determined to be judiciable, it didn’t take long for redistricting challenges to pop up across the nation.

Justice William BrennanIn fact, it was only two years later, in Wesberry v. Sanders and Reynolds v. Sims, that the Supreme Court ruled that state and federal congressional districts must be proportional in population.

These famed compromises were not only achieved through Brennan’s lobbying efforts, but also through his affability.

Actually, Brennan’s personality may be one of the most interesting aspects of his legacy.

Despite his tireless advocacy for the rights of women, Brennan refused to hire a female law clerk until 1974 (18 years into his tenure).

Brennan once explained that, since he liked to swear and tell crass jokes, he didn’t feel he could have the same relaxed report with a female clerk.

Nonetheless, Brennan’s personal attitudes toward women tended to be paternalistic – even toward female attorneys arguing before the Court.

Likewise, in spite of Brennan’s ardent and steadfast support for abortion and reproductive rights, Brennan told his biographer that “I wouldn’t under any circumstances condone an abortion in my private life.”

Brennan also espoused these pro-choice views on the bench in the face of his devout Catholicism.

Further flying in the face of his Catholicism was his reliably voting for the separation of church and state.

In light of these and many other instances of Brennan’s conservative personal views, we are left wondering why Brennan’s track record was so starkly liberal.

It is because Brennan interpreted the Constitution as he understood it to be, not how his personal beliefs wanted it to be.