Justice Brennan: Liberal Champion.

• Author: Johnsen, Dawn
• Position: Book review

JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern and Stephen Wermiel. Boston and New York: Houghton Mifflin Harcourt. 2010. Pp. xiv, 547. $35.

INTRODUCTION

In June 2012, the New York Times prominently reported that three-quarters of Americans believe that U.S. Supreme Court decisions sometimes are influenced by the Justices' personal or political views, while only 13% view their rulings as based solely on legal analysis without regard to such views. (1) At one level, this should be unsurprising, a "dog bites man" story. Who sits on the Supreme Court--each Justice's personal as well as legal views--of course affects the Court's rulings. The Times, however, paired this poll result with the finding that the Court's approval rating had fallen to 44%, from 66% in the 1980s, (2) thereby suggesting that the Court's reputation may have fallen because the public perceived those influences as improper. It singled out the Court's five-to-four decisions in Bush v. Gore (3) and Citizens United, (4) as well as the debate over the constitutionality of the Patient Protection and Affordable Care Act, (5) which the Court had not yet decided at the time of the poll. (6)

The Court's reputation may well have diminished because of the perception of improper influences, for example in the Court's willingness in Bush v. Gore in effect to resolve a presidential election along ideological lines and contrary to widespread expectations that the Court would decline to play that role. Another likely factor behind the fall is the public's substantive disagreement with the Court's rulings and the values they reflect, which seems especially likely in the case of the extraordinarily unpopular Citizens United decision.7

The Times' presentation of the poll results, however, risks perpetuating the myth that the content of the Court's rulings should be--and can be-wholly unrelated to the identities of the Justices sitting on the Court, and that the ideal should be judicial interpretations reached entirely without regard to the Justices' personal views and values. (8) The poll's phrasing is unfortunate: although "personal or political views" (9) evokes negative associations with such improper factors as personal or partisan gain or prejudice, the scope of the term is not so limited, especially in the context of the poll's two options. It also includes views and values that properly and inevitably inform legal analyses, particularly on the close constitutional questions most familiar to the American public: the meaning of broad, undefined guarantees such as "liberty," "equal protection," "cruel and unusual punishment," and "freedom of speech." (10)

During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked.... values and philosophies" of federal judges. (11) Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often unseen and rarely understood, impact on nearly every aspect of our lives." (12) Both were correct: because under our Constitution, "We, the People" govern, public appreciation of the actual influences on judicial decisionmaking should be seen as desirable, even if the Court's popularity suffers when the public disagrees with it. (13)

The Reagan Administration and Professor Tribe diverged, predictably, on the desirable content of Justices' values and philosophies, and both pointed to the example of Justice William J. Brennan, Jr. While Reagan officials singled out Justice Brennan as possessing precisely the wrong "values and philosophies" and targeted many of his "activist" decisions for overruling, (14) Professor Tribe held him up as an exemplar of a "catalytic" Justice whose work on the Court greatly improved Americans' lives. (15)

Around this time, Justice Brennan agreed to cooperate in the writing of his biography by Stephen Wermiel, (16) to whom he gave extraordinary access during his final few years of service before his 1990 retirement. (17) Wermiel later partnered with coauthor Seth Stern (18) to complete the project, (19) and in 2010, they published Justice Brennan: Liberal Champion, an engaging account of the life and work of one of the Court's most influential, effective, and controversial Justices. Over those decades, the Court's vital role in American life advanced from "often overlooked" and "rarely understood" to a frequent subject of news reports and popular cable comedy shows. For example, the Court's ruling in Citizens United sparked a valuable nationwide conversation, from President Barack Obama's State of the Union address, (20) to "Occupy" demonstrations across the nation, (21) to a running "joke" by comedian Stephen Colbert that included the formation of an active Super PAC and Colbert's indirect candidacy in a state presidential primary. (22)

Although the public better appreciates the extent of the Court's power, partisan battles fuel continued confusion about the proper role of Justices' personal views and values. During Senate confirmation proceedings marked by lengthy holds, filibuster threats, and little constructive dialogue, judicial nominees strive to say as little of substance as possible. They seek to minimize the extent to which their legal views--let alone their personal values--matter by emphasizing that their role is simply to interpret, not make, law. (23) As the charge of "judicial activism" once leveled at Justice Brennan increasingly focuses on the ideological right of the Court for overruling precedent and striking down statutes, nominees from both political parties engage in misleading oversimplification of the Justices' role. Chief Justice John Roberts, for example, during his confirmation hearing analogized a Justice to a baseball umpire who merely calls balls and strikes. (24) President Obama's modest suggestion that a capacity for empathy is a desirable characteristic in a judge met with widespread Republican ridicule, (25) which in turn led Justice Sonia Sotomayor to disavow the President's position in her confirmation hearing: "I ... wouldn't approach the issue of judging in the way the President does.... [J]udges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law." (26) Reform of our broken appointment process should be a national priority, but Senate confirmation hearings are unlikely to be conducive to nuanced conversations and enhanced public understanding about difficult and divisive constitutional questions.

The words and work of Justices who have run the political gauntlet to life tenure are far more promising sources to educate the citizenry--in the words of Justice Stephen Breyer, quoting Thomas Jefferson, a valuable means "to illuminate ... the minds of the people at large" (27) about the Court's "role in protecting the Constitution." (28) In that vein, Stern and Wermiel's biography of Justice Brennan instructs by example about the complex relevance of a Justice's views, values, and philosophies to the interpretive process. Justice Brennan is an ideal case study, for "while he remains a hero to two generations of progressive lawyers, including Presidents Bill Clinton and Barack Obama, he is also still the very symbol of judicial activism decried by conservatives" (p. xiv). Part I of this Review endorses Stem and Wermiel's central claim that Justice Brennan's personal abilities, attributes, and values, including his strong capacity for empathy, enabled him to become a "liberal champion." Part II examines Justice Brennan's extraordinary behind-the-scenes work in representative cases drawn from the biography through the lens of his famed "Rule of Five"--the number of Justices needed for a majority--as the composition of the Court changed dramatically over three distinct periods of Justice Brennan's service. Part III assesses Justice Brennan's legacy on the overarching issue of interpretive methodology by examining how his support for the constitutional value of "human dignity" and the concept of a "living Constitution" has fared against calls for judicial restraint and originalism.

By chronicling the life's work of one of the Court's greatest Justices, Stern and Wermiel show that judicial selection is a choice not among umpires but between a Justice William Brennan and a Justice Felix Frankfurter, a Justice Sonia Sotomayor and a Chief Justice John Roberts--all exceptionally smart and well-trained lawyers who fully understand the rules of the game and the relevance of what they personally bring to the awesome responsibility of interpreting the Constitution.

1. LIBERAL CHAMPION

   Stern and Wermiel ably establish their central claim that Justice Brennan was a liberal champion. Even readers generally familiar with Justice Brennan's work will be impressed to read about the many landmark opinions he authored to establish constitutional protections now viewed as fundamental: the justiciability of electoral redistricting questions (29) which paved the way for the "one person, one vote" principle; (30) vibrant First Amendment speech protections for unpopular expressive conduct (31) and "vehement, caustic" criticism of government and public officials; (32) protections for racial minorities (33) and individuals discriminated against on the basis of sex; (34) the incorporation of Bill of Rights protections against the states; (35) and basic access to justice in federal court for those challenging criminal convictions (36) and before administrative agencies for those living in "brutal need." (37) Even more...