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Author stresses Justice Brennan's continued relevance

By Bill Mears, CNN Supreme Court Producer
STORY HIGHLIGHTS
  • William Brennan is widely seen as the Supreme Court liberal archetype
  • The Eisenhower appointee served on the court from 1956 to 1990
  • Brennan's legacy of liberal decisions is still seen today, author tells CNN
  • Seth Stern: Brennan built consensus in a time when it was still possible

Washington (CNN) -- The U.S. Supreme Court vacancy this spring created a buzz of excitement among many liberal activists who hoped President Barack Obama would use the opportunity to name an outspoken, politically savvy, consensus builder.

They yearned for someone who could subtly pull conservatives to the left and forge a progressive legal "dynasty." Their model for this kind of liberal voice: Justice William Brennan, who served on the high court from 1956-90.

He is the subject of new biography, "Justice Brennan: Liberal Champion" (Houghton Mifflin Harcourt), written by Seth Stern and Stephen Wermiel. Stern is a reporter with "Congressional Quarterly" and attended Harvard Law School when Justice Elena Kagan served as dean. Wermiel teaches law at American University, and as a former reporter had remarkable access to the justice, his colleagues, and his papers. Those conversations formed the basis of this profile.

William J. Brennan Jr. (1906-97) was named by Republican President Dwight Eisenhower in 1956, but went on to build one of the most liberal records on the high court until his 1990 retirement. He wrote decisions mandating reapportionment of state legislative districts, broadening press protections from libel suits by public officials, upholding school desegregation and strengthening the rights of the accused. Eisenhower and generations of conservatives long lamented the nomination as an extreme "disappointment."

Brennan was enormously successful in working with moderates on the court to forge consensus on a range of hot-button issues. He once wrote, "The law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right." He also told his law clerks the most important number at the court was "five," the number of votes need to command a majority on the nine-member bench. His influence waned as he aged, and as the court slowly moved to the right.

CNN spoke with co-author Stern about Brennan's legacy and how it still has an impact on today's Supreme Court.

CNN: What is Justice Brennan's relevance today?

Stern:It's 20 years since Justice Brennan retired and in so many ways, we're still confronting, for better or worse, his legacy. Whatever the hot-button issue is -- involving race or education, the death penalty, abortion, minority rights -- Brennan had a hand in those decisions and a lot of these decisions helped spark a public backlash against the court, a sense that the court had become super-legislators and were trying to impose their vision. I think that both conservatives and liberals are uneasy about whether the court should play that role. You hear liberal scholars today speaking about being more deferential to the elected branches. So there is something of the cautionary tale for either a conservative or a liberal court to get too ahead of the public without sparking a real backlash and undermining the court's legitimacy and the public's confidence in it.

CNN: Your colleague Steve Wermiel had spoken extensively with the justice.

Stern: It was 1987 when he began the first of what became 60 interviews with Justice Brennan. It really was extraordinary unrestricted access to all his files, court files, personal papers, the term histories that he had his clerks prepare. He sat for extensive interviews. It's really a remarkable degree of access to both the professional and personal, which I think makes the book so much richer.

CNN: Do we see a new side of Brennan?

Stern: We definitely do, in how we view him as a justice and how we view him as a person; in terms of him as a justice, there's this notion that liberal judges are activists who read their own preferences into the Constitution. What's interesting about Brennan is that his personal views and constitutional vision didn't always align, whether the issue was abortion, women's rights or press freedoms. He was hailed a defender of the press, but he distrusted reporters and they often made him furious. He wrote iconic women's rights decisions, but refused to hire women clerks even after he had written several of those opinions. He helped craft the constitutional right to privacy and the Roe v. Wade decision, but he was very uncomfortable with abortion. There's a fascinating tension between his personal views and what he accomplished as a justice.

CNN: He was viewed as a master strategist. Can you name some examples?

Stern: So many instances where he did that: in the 1960s, Baker v. Carr, that eventually led to one person/one vote; some of the school desegregation cases in the 1960s and '70s. But what's most remarkable is that he continued to have influence, even after many of his close allies retired. Under Chief Justice Earl Warren, when they had that solid block of five liberals, it was easy to be the playmaker. It was much harder in the '70s, after his allies had retired and you had conservative courts under [chief justices Warren] Burger and [William] Rehnquist. But he continued to have success as a consensus builder; he managed to find common ground with centrists and more conservative justices and that really was a remarkable accomplishment.

CNN: What was his secret in building coalitions?

Stern: I think it's wrong to view him as some sort of Irish ward boss. There's this perception of [Irish-Catholic] Brennan as someone who would go around the court, sort of twisting arms and shaking hands and making deals. He was an extraordinarily friendly and personable man. I don't think that alone explains his success as a justice. I think it was a combination of several things: he served at a particular moment in time on the court when there was a chief justice [Warren], who shared a vision of transforming individual rights; and he continued to have partners throughout his tenure who were willing to work with him, even if they didn't agree with him; and he had an ability to build consensus."

CNN: Brennan was often linked in later years to Justice Thurgood Marshall.

Stern: It was a complex relationship; they were undeniably close allies; they had tremendous respect for each other. Brennan would constantly talk about Marshall as one of the most gifted, if not the most gifted, litigators he'd ever heard argue before the court. They shared a vision of the Constitution and a deep sense that the death penalty was wrong and cruel and unusual punishment. But Brennan had some disappointments with Marshall, ones he was very reluctant to share publicly out of the fear that it would feed what he viewed as sort of racist sentiments towards Marshall. He had no interest in undermining the achievements that Marshall had made; on the other hand, he was disappointed that Marshall had sort of given up in the '70s and '80s and wasn't doing his share of the work and the heavy lifting to help preserve the gains of the Warren era.

CNN: With President Obama now having made two high court appointments, will progressives become ultimately disappointed in Elena Kagan and Sonia Sotomayor as a Brennan-like justice?

Stern:It was fascinating to me to see that, 20 years after Brennan retired, he's still so relevant, is still being cited as the quintessential liberal playmaker and the kind of voice that people on the left want to see on the court. I think it's more complicated than that. It would be hard for anyone to come on a court that is now divided as it is between liberals and conservatives. Unlike in the Brennan era, there aren't a lot of people in the middle; a lot of Brennan's success depended on having those people in the middle who were willing to work with him. He wasn't serving with eight [conservative] Antonin Scalias. So it may benefit the left to have a passionate voice and someone who could write opinions that would voice his concerns, but as far as the ability to translate that vision or voice into a majority, that would be very challenging on this court.

CNN: What did you personally think of Justice Brennan, the man?

Stern:He's a fascinating person, yet I don't necessarily agree with everything he did -- the idea of human dignity, which he believed underlied his death penalty decisions, and so much else of what he did. I don't know if that's a very good basis for legal opinions; but he lived his life that way. He was famous for being as generous and friendly to the staff at the court as his colleague and family, and it was genuine. And it really is something admirable, the way he lived his life, with the importance of human dignity.