Brennan, William J., Jr. (1906–)

Author:Robert C. Post
Pages:229-232

Page 229

William Joseph Brennan, Jr., was appointed an Associate Justice of the United States Supreme Court in October 1956. He quickly became, in both an intellectual and statistical sense, the center of gravity of what commentators have come to call the WARREN COURT, dissenting less than any other Justice, and fashioning many of that Court's most important opinions.

He came to the Court with more past judicial experience than any of his colleagues. For seven years he had been a New Jersey state judge, beginning his career at the trial level and rapidly advancing to the New Jersey Supreme Court. He had also been prominent in the movement to reform the antiquated New Jersey court system. He understood and cared about the practical workings of the justice system, and this concern was to prove important in the development of his constitutional perspective.

Brennan was a committed civil libertarian who believed in "providing freedom and equality of rights and opportunities, in a realistic and not merely formal sense, to all the people of this nation." He considered courts to be the particular guardians of constitutional rights. "[T]he soul of a government of laws," he once wrote, "is the judicial function, and that function can only exist if adjudication is understood by our people to be, as it is, the essentially disinterested, rational and deliberate element of our society." For Brennan, the judicial function demanded a continual effort to translate constitutional values into general doctrinal formulations. This emphasis on DOCTRINE distinguished Brennan from his colleague WILLIAM O. DOUGLAS, who was an equally committed civil libertarian.

Brennan viewed courts as the last resort of the politically disfranchised and the politically powerless. Constitutional litigation was for him "a form of political expression"; it was often, he wrote in NAACP V. BUTTON (1963), "the sole practicable avenue open to a minority to petition for redress of grievances." Litigation was thus an alternative, perhaps the only alternative, to social violence. For these reasons he seized every opportunity to enlarge litigants' access to federal courts. Exemplary is his opinion in BAKER V. CARR (1962), which held that the issue of unequal legislative representation was justiciable in federal court, and which Chief Justice EARL WARREN called "the most important case that we decided in my time." In opinion after opinion Brennan worked to open the doors of the federal courthouse, and to make available such federal judicial remedies for violations of the Constitution as HABEAS CORPUS, INJUNCTIONS, DECLARATORY JUDGMENTS, and DAMAGES. In later years Brennan dissented vigorously as many of these opinions were cut back by the BURGER COURT.

Because he believed that "the ultimate protection of individual freedom is found in judicial enforcement" of constitutional rights, Brennan did not flinch from the exercise of JUDICIAL POWER. When the time came, for example, to accelerate the ALL DELIBERATE SPEED with which BROWN V. BOARD OF EDUCATION (1955) had ordered the nation's public schools to be desegregated, Brennan, in GREEN V. NEW KENT COUNTY SCHOOL BOARD (1968), shattered the facsade of southern "freedom-of-choice" plans and wrote that racial discrimination must end "now" and "be eliminated root and branch." In KEYES V. SCHOOL DISTRICT #1 OF DENVER (1973) Brennan took the lead in applying the requirement of Brown to northern school districts, and in cases like FRONTIERO V. RICHARDSON (1973) and CRAIG V. BOREN (1976) he played a major role in causing gender classifications to be subjected to substantial scrutiny under the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT.

Brennan was a nationalist. He believed in the power of Congress to define and protect CIVIL RIGHTS and to govern the national economy unrestrained by concerns of state SOVEREIGNTY. He disapproved of state regulations that interfered with interstate commerce. He favored the judicial imposition of national, constitutional values onto local decision-making processes. He believed, for example, that federal courts should fully incorporate almost...

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