The origins of a judicial icon: Justice Brennan's Warren Court years.

• Author: Driscoll, Kevin O'D.

PROLOGUE: THE BRENNAN LEGACY

Upon his retirement in 1990, and even more so at his death seven years later, Justice William J. Brennan, Jr. was hailed as "a towering figure in modern law" (1) and "one of the greatest Justices of all time." (2) "Not since the retirement of Justice Holmes in the early 1930s," Owen Fiss remarked, "has the nation been more generous in its tributes to a ... justice." (3) There were a few dissenting voices, (4) but they were a distinct minority, all but drowned out by those proclaiming Justice Brennan's elevation to the status of judicial icon.

Many of the tributes, especially those composed at the Justice's death, dwell upon Brennan's personal traits, such as his seemingly boundless capacity for compassion and his legendary charm. (5) Some writers, however, took pains to point out that the Justice's personal traits should not be given undue attention, and certainly not at the expense of his intellect and judicial vision. (6) These fears notwithstanding, the overwhelming emphasis of the tributes, and justifiably so, is on Brennan's thirty-four years of service on the Court and on his catalog of landmark opinions (7) that "left a legacy that is visible everywhere in the law and in American political and social life." (8)

Few of these tributes, however, noted just how improbable Brennan's now-well-established greatness appeared when he first was nominated to the Supreme Court. (9) Leaving aside the Justice's son-of-Irish-immigrants childhood, (10) there remains the simple historical fact that Brennan came to the Court at a time when, to use Kim Isaac Eisler's understated phrase, "history had conspired against mediocrity." (11) Looking back at Brennan's career, and especially his time on the Warren Court, one question stands out: How did this state court judge from New Jersey manage to surpass in reputation and influence such judicial luminaries as Hugo Black, William O. Douglas, John Marshall Harlan, and Earl Warren? (12)

This paper aims to answer that question, albeit in a very literal, descriptive fashion. My purpose in this essay is not to recount the early years of Justice Brennan so as to further underline the improbability of his rise to greatness. Rather, I hope to track the evolution of his reputation and intellectual influence as a Justice over the course of his service on the Warren Court. My analysis necessarily points forward into the post-Warren Court era, but only to demonstrate how the import of Brennan's jurisprudence--and thus of his ultimate influence as a judge--was not fully apparent until well after the demise of the Warren Court.

I offer no opinion on Justice Brennan's worthiness for the iconic status that he has been accorded, nor do I venture an evaluation of his jurisprudence. Rather, I seek to explain how and why Justice Brennan--and not, say, Justice Black, Justice Douglas, or Justice Warren--has come to be considered not just the preeminent justice of the Warren Court, but also the "embod[iment] [of] the liberal vision of the Constitution as an engine of social and political change." (13)

1. THE ORIGINAL "STEALTH NOMINEE"--REACTIONS TO THE BRENNAN NOMINATION

   "This has come as a complete surprise to me," Justice-designate William Brennan, Jr. said to the press upon the announcement of his nomination to the Supreme Court by Dwight D. Eisenhower. "I had no inkling of my impending appointment until I arrived here this morning." (14) The new justice was not simply making a show of the modesty that many would come to know as a Brennan hallmark. That would come later--for instance when he likened his new position on the Court to that of "the mule that was entered in the Kentucky Derby." (15)

   Justice Brennan's surprise at his nomination was genuine--and understandable. He had arrived in Washington that morning at 5:30 a.m. on the Midnight Keystone out of Newark, New Jersey, having been summoned by Attorney General Herbert Brownell. (16) Brennan was "shocked" (17) to find the Attorney General himself awaiting his arrival at Washington's Union Station. His shock turned to stupefaction when Brownell informed him that he had been summoned to Washington not for service on an Attorney General's commission on court congestion, as Brennan suspected, (18) but rather to be announced as President Eisenhower's nominee to replace Justice Sherman Minton. "To this day," Brennan later recalled, "I know we had breakfast [before meeting with the President], but I can't remember it." (19)

   Justice Brennan's surprise at his own nomination was approached, if not surpassed, by the reaction among journalists, academics, and other Court watchers. Brennan's own hometown newspaper, the Newark Evening News, described the appointment as "so sudden that all the usual procedures were swept aside." (20) The New York Times headline was followed by a subhead that announced "SELECTION IS A SURPRISE." (21) The Times' "Man in the News" segment, in what would become a familiar theme in coverage of Justice Brennan, emphasized the nominee's charm and personality. Former Brennan colleagues are quoted, describing him as "a hell of a nice guy," "the friendly Irish type," "very convivial, easy-going," and "the Jimmy Walker type. Dapper and jaunty." (22)

   At his alma mater, Harvard Law School, Justice Brennan's appointment was greeted with something less than institutional pride. Professor Paul Freund, a law school classmate of Brennan's and himself an aspirant to the Court, wrote to Justice Felix Frankfurter, "I am chagrined to say that I don't remember him as a classmate." (23) To refresh his memory, Freund pulled Brennan's grades from the law school's files, only to discover that the new justice had not taken constitutional law. (24) The more Freund learned of the new nominee, the more uncomfortable he felt with his statement to a student newspaper that Brennan would prove to be "a great justice." (25)

   Farther south, in New Haven, Professor Fred Rodell at Yale Law School was similarly unenthusiastic about Eisenhower's selection. Rodell, fearing that the Harvard-educated Brennan would be another vote for Felix Frankfurter's faction on the Supreme Court, wrote to Justice William O. Douglas, "[T]he odds [are] against [Brennan] being great." (26) Rodell further bemoaned the fact that Brennan had been "chosen for all the wrong reasons." (27)

   This last assertion, concerning the motivations for Brennan's selection, obviously varied depending upon one's viewpoint. For Rodell, Brennan's nomination portended further support for a judicial philosophy he opposed--though his fears likely would have been assuaged somewhat had he known of the chagrin that had greeted the Brennan nomination in Cambridge. For Eisenhower, however, Brennan had been chosen for all the right reasons--two of them actually, both political. First, Brennan was a Catholic Democrat, which allowed Eisenhower to keep a promise to New York's Francis Cardinal Spellman and make an appeal to swing voters at the same time. (28) Second, Brennan was a state court judge, a constituency that had become increasingly vocal in its demands for a representative on the Supreme Court. (29)

   In addition to a political coup, Eisenhower and his aides thought they were getting a centrist judge or, at worst, a moderately liberal one. Contemporary news accounts echo this assessment of the new justice. Life magazine reported that "The opinions [Brennan] has delivered in his seven years on the New Jersey bench are clear, forceful and middle-of-the road." (30) U.S. News and World Report welcomed the appointment, finding Brennan's record to be "solid rather than spectacular," and concluding that "he cannot be counted on to join either a `liberal' or a `conservative' bloc on the nation's highest tribunal." (31)

   A few observers, however, offered slightly more prescient assessments. One was Arthur Krock who, writing in the New York Times, hailed Brennan's choice as "important proof of democracy" and "representative of what an American can, with honor and industry, achieve without the birthright of social and economic privilege." (32) More interesting in hindsight, however, is the statement Krock elicited from then New Jersey Governor Robert Meyner: "I suspect his opinions will not be quite as middle-of-the-road as some Republicans seem to think." (33)

   Such efforts to predict how the new justice would align himself had special urgency on a Court that was closely and often bitterly divided, especially in light of the increasing number of controversial cases occupying its docket. The term prior to Brennan's nomination had been, as Warren Court terms go, relatively quiet, even despite an important case that offered a "classic glimpse[] of the future" (34) in the area of criminal justice: Griffin v. Illinois, (35) in which a 5-4 Court invalidated Illinois' requirement that criminal appellants pay for trial transcripts. This case, along with events beyond the Court's marble walls--including the Montgomery bus boycott and the issuance of the "Southern Manifesto"--gave some indication of what lay ahead for the Court and its newest member.

   Nevertheless, it is worth noting that the question posed by Court watchers was, Which faction will Brennan join? The battle lines had already been drawn between the Court's two dominant personalities and their respective judicial philosophies: Black's aggressive, often dogmatic incorporationism on the one hand, and Frankfurter's equally insistent stance in favor of judicial deference to both Congress and the federal system. Brennan's importance, in the eyes of contemporary observers, was as a vote for one of these two factions--as the Court's new "swing man," as one columnist put it (36)--not as a potential leading light.

2. JOUSTING WITH FRANKFURTER: A LIBERAL JURIST EMERGES

   That Governor Meyner's assessment (37) of the new justice was closer to the mark than most other contemporary accounts of Justice Brennan is borne out by two perceptive...