The U.S. Supreme Court has seldom been progressive and never been a bastion
of populism. In fact, next to the Federal Reserve Board, it's probably the
most elitist and unaccountable of America's important public institutions,
a haven for ideologues, political cronies, and rich lawyers who have usually
had little knowledge of and less regard for everyday citizens.
A Justice for All
That makes the passing of the court's most important populist figure even
more poignant. When William Brennan died on July 24, most Americans didn't
even know who he was. But in fact, the late Supreme Court Justice's legacy
was so pervasive that all friends of freedom owe him a moment of thanks
for many of the liberties we now take for granted.
The very publication you're now reading might not be possible if not for
Brennan's 1964 opinion in the New York Times vs. Sullivan case --
one of the most important judicial rulings in the history of humankind.
The case held that libel suits against public figures such as politicians
would have to meet a much higher standard than those directed at private
citizens in order to prevail.
But that description doesn't begin to express the immense importance of
this decision to human liberty. It means that the press can make responsible
investigations into government misbehavior without fear of reprisal -- a
right that the people of few other nations enjoy.
An independent press isn't really free unless it doesn't have to worry about
unjustified attack lawsuits that could bankrupt it. This doesn't mean the
press has a license to lie -- it just means that it can't be sued for libel
against a public figure, a threat governments from Singapore to Mexico are
increasingly using to stifle investigative reporting revealing government
And that, in turn, means that government must operate under the light of
public scrutiny, permitting the press to hold government accountable to
its citizens. Ultimately, that's a necessary though far from sufficient
condition for protecting us from government abuse of our personal liberties
as well as misspending of our tax dollars.
The Sullivan line of cases institutionalized Brennan's cherished
principle that "debate on public issues should be uninhibited, robust,
and wide-open, and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials." Yes,
Sullivan makes possible the sleaze-mongering that's plagued President
Clinton, but it also protected exposés of corruption from Watergate
down to your local city council's conflicts of interest.
ALONG WITH ADVANCING the cause of liberty more than any American
since Thomas Jefferson, Brennan did as much to promote justice for all.
His opinion in 1962's Baker vs. Carr established the principle of
one person, one vote. It's hard to imagine this was controversial at the
time, but it dramatically transformed state and local politics.
Once dominated unfairly by numerically smaller and generally conservative
rural interests, state governing bodies must now give representatives of
urban and minority interests their due representation. In other words, no
one's vote counts more than anyone else's. While that principle has since
been undermined by the power of organized money to give elite interests
extra weight, it still brought us closer to true equality of representation.
Brennan also helped extend greater political representation to disempowered
groups such as women (Frontiero vs. Richardson) and undocumented
immigrants (Plyler vs. Doe).
In fact, Brennan's whole career was dedicated to guaranteeing the Constitutional
rights of the little guys in our society against the awesome power of the
state. In a series of opinions in the 1960s, he helped ignite a due process
revolution that gave meaning to the noble but hitherto unrealized sentiments
of the Fourteenth Amendment and played major role in extending the rights
that most of us consider essential to American life to state courts and
In 1964's Baggett vs. Bullitt and 1967's Keyishian vs. Board of
Regents and others, Brennan found in the Constitution a barrier against
government bullying tactics such as loyalty oaths for public employees.
Thanks to Brennan, anytime, say, a teacher, is wrongly fired, she has a
right to a hearing to find out why -- and to challenge unfair reasons. He
fortified the wall of separation between church and state via opinions in
important school-prayer and creation pseudoscience cases. And even when
he didn't write the opinion, he was important vote and force in most of
the Court's progressive opinions during his tenure
Brennan was also a fine writer: his draft in Cooper vs. Aaron, the
unanimous 1958 opinion ordering the desegregation of the Little Rock, Arkansas,
schools, contains some of the most puissantly eloquent prose in American
history, and that powerful clarity contributed to its reluctant acceptance
by the segregationist state governments in the South.
Although his greatest accomplishments occurred when he was the key member
of the progressive Warren court of the 1950s and '60s, Brennan also proved
effective in the minority, when Republican presidents stacked the Supreme
Court with conservatives.
Chief Justice Rehnquist was so reactionary that he often couldn't find it
within himself to join a majority opinion that wasn't far enough to the
right. That left Brennan, the senior justice in the majority, the privilege
of assigning -- and often controlling -- the opinion-writing. In that position,
Brennan was a master at using the draft opinions circulated among the Justices
to develop compromise language that could command consensus support and
reduce the damage to progressive principles. He was content to achieve a
five-vote majority that, however awkwardly, became the law of the land rather
than holding out for an ideologically pure dissent that looked good in law
books but was meaningless in the real lives of real people.
This sort of practical, people-oriented approach is what made Brennan different
from so many of the swells that have dominated the Court. As Ira Gershwin
put it in the pre-Brennan musical Of Thee I Sing, Justices "have
powers that are positively regal / only we can take the law and make it
legal ... we're the eggheads who give OKs."
Unlike most Justices, who keep the company of big-firm, tassel-loafered
lawyers and rich ideologues, Brennan, son of an Irish immigrant, never lost
sight of how policy affected real people. His respect for the value of people
extended to respect for their opinions, which underlay his Sullivan
opinion protecting the robust debate in which the Irish excel. And it helped
when he applied his people skills in negotiations over opinions with the
other eight members of the court, including those who differed with him
politically but were charmed by him personally.
Not that Brennan lacked guiding principles; his most cherished was that
the fundamental purpose of the Constitution was "the protection of
the dignity of human beings and the recognition that every individual has
fundamental rights which government cannot deny him." It's hard to
imagine a better statement of the essence of Western civilization.
And he insisted that the language of the Constitution was meant to develop
along with the nation, so that we moderns could be informed but not imprisoned
by 18th-century ideas.
Toward the end of his career, after the national government turned more
aggressively against Main Street, Brennan championed the use of state institutions
to remedy the conservative deficiencies in the federal document, opening
a new front in the battle for human rights.
TODAY, THERE IS NO POPULIST figure comparable to Brennan on the Supreme
Court, and few in the other branches of our corporate-owned government,
which has, thanks to the power of money, come to be dominated by the wealthy,
the ideologues, and others out of touch with how people really live in this
Nevertheless, it's a mark of Brennan's genius that, despite a generation
of justices appointed by politicians who cared more about the powerful than
the people, most of his precedents still sail proudly along the treacherous
seas of American jurisprudence.
Brennan wasn't always right (as he'd cheerfully admit) and wasn't always
successful, especially after the conservatives took over the government
with Nixon's election; he went to his grave denouncing the brutal, state-sanctioned
homicide that is the death penalty. And he never got much credit for his
contribution; overshadowed by the Chief Justices with whom he served, he
never achieved more than 3 percent recognition in polls of American citizens.
Yet his influence will probably last longer than that of just about any
other American public figure in his lifetime.
In a time when Americans decry the absence of role models, Bill Brennan
was an authentic hero. Perhaps as much as any single figure, Brennan helped
make the ideals of American justice a reality for all of us.
Brett Campbell is a lapsed lawyer now practicing and teaching journalism
without a license in Eugene, Ore.
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