EULOGY/Brett Campbell

A Justice for All

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.

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 corruption.

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 governments.

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 country.

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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