Brennan, William J., Jr. (1906–) (Update 1)

• Author: Geoffrey R. Stone
• Pages: 232-236

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After graduating near the top of his Harvard Law School class, William Brennan returned to his hometown, Newark, New Jersey, where he joined a prominent law firm and specialized in labor law. As his practice grew, Brennan, a devoted family man, resented the demands it made on his time and accepted an appointment to the New Jersey Superior Court in order to lessen his work load. Brennan attracted attention as an efficient and fair-minded judge and was elevated to the New Jersey Supreme Court in 1952. President DWIGHT D. EISENHOWER, appointed him to the Supreme Court of the United States in 1956. The appointment was criticized at the time as "political," on the ground that the nomination of a Catholic Democrat on the eve of the 1956 presidential election was intended to win votes for the Republican ticket.

Once on the Court, Brennan firmly established himself as a leader of the "liberal" wing. Often credited with providing critical behind-the-scenes leadership during the WARREN COURT years, Brennan fashioned many of that Court's most important decisions. He continued to play a significant role?although more often as a dissenter, lamenting what he believed to be the evisceration of Warren Court precedents?as the ideological complexion of the Court changed in the 1970s and 1980s.

Brennan was a committed civil libertarian who believed that the Constitution guarantees "freedom and equality of rights and opportunities ? to all people of this nation." For Brennan, courts were the last resort of the politically disfranchised and the politically powerless, and constitutional litigation was often "the sole practicable avenue open to a minority to petition for redress of grievances." Thus, in Brennan's view, the courts played an indispensable role in the enforcement, interpretation, and implementation of the most cherished guarantees of the United States Constitution. As Brennan observed, the Constitution's "broadly phrased guarantees ensure that [it] need never become an anachronism: The Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it."

Brennan had an especially influential impact in the areas of EQUAL PROTECTION OF THE LAWS, DUE PROCESS, FREEDOM OF SPEECH, and CRIMINAL PROCEDURE. In his interpretation of the equal protection clause, Brennan evinced little tolerance for INVIDIOUS DISCRIMINATION by the government. When Brennan joined the Court in 1956, the equal protection clause was high on the Court's agenda, for the Court had just handed down its explosive decisions in BROWN V. BOARD OF EDUCATION (1954, 1955). Despite these decisions, and to the Court's mounting frustration, SEGREGATION of southern schools remained largely intact more than a decade after Brown. In GREEN V. COUNTY SCHOOL BOARD OF NEW KENT (1968), however, Brennan's opinion for the Court finally dismantled the last serious barriers to DESEGREGATION by invalidating the "freedom of choice" plans that had been used to forestall desegregation in the rural South. Putting aside the ALL DELIBERATE SPEED formula, Brennan emphatically expressed his own and the Court's impatience at the pace of desegregation: "The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now. "

When the Court first considered the lawfulness of school segregation in a city that had never expressly mandated racially segregated education by statute, it was again Brennan, writing for a closely divided Court in KEYES V. SCHOOL DISTRICT NO. 1 OF DENVER (1973), who took a strong stand on the issue: "A finding of intentionally segregative school board action in a meaningful portion of a school system ? creates a presumption that other segregated schooling within the system is not adventitious [and] shifts to school authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions."

Although Brennan naturally assumed a leadership role in condemning RACIAL DISCRIMINATION, he sharply distinguished such discrimination from race-conscious AFFIRMATIVE ACTION programs designed to protect racial minorities. Brennan explained the distinction in his separate opinion in REGENTS OF UNIVERSITY OF CALIFORNIA V. BAKKE (1978): "Against the background of our history, claims that law must be 'color-blind' or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. [We] cannot ? let color blindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by law and by their fellow citizens." Brennan therefore concluded that the purpose of "remedying the effects of past societal discrimination is ? sufficiently important to justify the use of race-conscious" affirmative action programs "where there is a sound basis for concluding that minority representation is substantial and chronic and that the handicap of past discrimination is impeding access of minorities to the [field]."

Brennan also played a pivotal role in the evolution of equal protection doctrine in the area of SEX DISCRIMINATION. In FRONTIERO V. RICHARDSON (1973) Brennan, writing a PLURALITY OPINION for four Justices, argued that classifications

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based on sex are inherently suspect and, like racial classifications, must be subjected to STRICT SCRUTINY. Taking a strong stand on the issue, Brennan explained that "our Nation has had a long and unfortunate history of sex discrimination" and that history has traditionally been "rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage." Although Brennan never garnered the crucial fifth vote for this position, he did gain a decisive victory in CRAIG V. BOREN (1976), in which he wrote for the Court that gender-based classifications must be subjected to intermediate scrutiny and that "to withstand constitutional analysis" such classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives."

Brennan also opened the door to the Court's REAPPORTIONMENT revolution. Prior to 1962, the Court had consistently declined to consider claims that state laws prescribing legislative districts that were not approximately equal in population violated the Constitution. As Justice Frankfurter explained in COLEGROVE V. GREEN (1946), such controversies...