Seth Stern - Justice Brennan: Liberal Champion

HOUGHTON MIFFLIN HARCOURT
BOSTON NEW YORK
2010

Copyright 2010 by Seth Stern and Stephen Wermiel

ALL RIGHTS RESERVED

For information about permission to reproduce selections from this book,
write to Permissions, Houghton Mifflin Harcourt Publishing Company,
215 Park Avenue South, New York, New York 10003.

www.hmhbooks.com

Library of Congress Cataloging-in-Publication Data
Stern, Seth (Seth Rose), date.
Justice Brennan : liberal champion / Seth Stern and Stephen Wermiel.
p. cm.
Includes index.
ISBN 978-0-547-14925-7
1. Brennan, William J. (William Joseph), 19061997.
2. JudgesUnited StatesBiography.
I. Wermiel, Stephen. II. Title.
KF 8745. B 68 S 74 2010
374.73'2634dc22
[ B ] 2010019036

Book design by Victoria Hartman

Printed in the United States of America

DOC 10 9 8 7 6 5 4 3 2 1

To Claire

SETH STERN

To Justice Brennan, Abner Mikva, and Seth Stern,
who made this book possible

To my wife, Rhonda Schwartz, and my daughter, Anne Wermiel,
who never stopped encouraging the effort

STEPHEN WERMIEL

List of Illustrations

Prologue: Last Surprise

PART I: 19061956

1. B ILL'S S ON

2. L AWYER

3. A SCENDING THE B ENCH

PART II: 19561962

4. I KE'S M ISTAKE

5. J OINING THE C OURT

6. C OLD W AR

7. I RISH OR H ARVARD

PART III: 19621969

8. T RIUMPHANT

9. D ISARMING THE S OUTH

10. C RIME & C RITICISM

11. A NGERING THE L EFT

12. P ASSAGES

13. T UMULT

PART IV: 19691982

14. N EW C HALLENGES

15. F RUSTRATION R ISING

16. P EDESTALS & C AGES

17. D EATH & D IGNITY

18. U NEXPECTED A LLY

19. D ARKEST Y EARS

PART V: 19831997

20. R EBIRTH

21. T WILIGHT

22. "S O L ONG , B ILL "

Authors' Note

Acknowledgments

Sources

Notes

Index

FOLLOWING PAGE

Wedding portrait of Justice Brennan's parents. Courtesy of the Brennan family

Campaign ad for William J. Brennan Sr.'s first reelection. Courtesy of the Brennan family

William J. Brennan Jr. at age seventeen. Courtesy of the Brennan family

William J. Brennan Sr., Newark's commissioner of public safety. Courtesy of the Brennan family

Harvard Legal Aid Bureau. Notman Photography Co./Courtesy of the Collection of the Supreme Court of the United States

Marjorie Brennan. Courtesy of the Brennan family

Major Brennan, World War II. Courtesy of the Collection of the Supreme Court of the United States

New Jersey Supreme Court in conference. TheSaturday Evening Postmagazine 1957. Saturday Evening Post Society

Brennan and President Eisenhower in the Oval Office. AP/Wide World Photos

Brennan family at home in Rumson, New Jersey, 1956. AP/Wide World Photos

Brennan, seven-year-old daughter Nancy, and Marjorie. AP/Wide World Photos

Brennan in his judicial robe. Robert Oaks,National Geographic/Courtesy of the Collection of the Supreme Court of the United States

Brennan before the Senate Judiciary Committee. AP/Wide World Photos

Justice Brennan and Chief Justice Earl Warren and family. Time & Life Pictures/Getty Images

The Warren Court. Harris & Ewing/Courtesy of the Collection of the Supreme Court of the United States

Lunch group at the Milton Kronheim liquor warehouse, late 1960s. Courtesy of the Collection of the Supreme Court of the United States

FOLLOWING PAGE

Justice Brennan receives the Laetare Medal, 1969. Catholic News Service

Justice Brennan and Marjorie at a Nantucket cottage, 1975. Photograph by R. Rhodes

Justice Brennan and Marjorie on a Nantucket sand dune. Courtesy of the Brennan family

The Wharf Rat Club, Nantucket. Photograph by Anne Wermiel

The Burger Court meets President Ronald Reagan. The White House/Courtesy of the Collection of the Supreme Court of the United States

Justices Marshall and Brennan at a courthouse dedication, 1985. Ray Lustig photograph 1985The Washington Post

Justices Brennan and Blackmun on their way to justices' conference, 198384. Courtesy of Jeffrey B. Kindler

Justice Brennan and his second wife, Mary Fowler. Courtesy of the Collection of the Supreme Court of the United States

Brennan speaks at Loyola Law School graduation, 1986. Bettmann/Cor-bis

Justice Brennan, in retirement, with his successor, Justice David Souter, 1996. Lois A. Long/Courtesy of the Collection of the Supreme Court of the United States

Herblock cartoon, 1990. The Herb Block Foundation

William J. Brennan lying in state in the Supreme Court's Great Hall, 1997. Time & Life Pictures/Getty Images

W ILLIAM J. B RENNAN J R. left his chambers as usual on the morning of June 27, 1990, when summoned by a buzzer to join his eight colleagues on the United States Supreme Court.

His first-floor chambers had remained largely unchanged since Brennan first arrived at the Court as a little-known New Jersey state judge thirty-four years earlier. Brennan had continued to work at the same desk, and the same wooden mantel clock still rested on the shelf above the fireplace. He preferred the old lamps to the fluorescent lighting other justices had installed. The only distinctive decorating touch in Brennan's chambers was the kelly green carpet covering the floor.

Stepping into the hallway, Brennan might have looked at the figures emerging from the neighboring chambers and thought for just a moment of his former allies Hugo Black, William Douglas, and Earl Warren, with whom he had transformed American constitutional law a quarter century earlier. All three had died long ago.

Brennan's closest remaining allies, Harry Blackmun and Thurgood Marshall, the nation's first African American justice, had, like him, grown old on the Court. Never a tall man, Brennan, now eighty-four, had shrunk as a result of age and illness. He shuffled when he walked the hallway toward the courtroom, and when he locked arms along the way with Blackmun or Marshall, the gesture was as much about steadying his gait as making an intimate connection.

He joined his colleagues in a small room behind the ornate courtroom, where they donned their robes and shook hands as per tradition before walking through the two-story-high curtains into the Court Chamber. As he had done for the last fifteen years, Brennan took the seat to the immediate right of the chief justice, at center, the spot reserved for the longest-serving associate justice.

The Court followed its custom of announcing decisions in reverse order of the author's seniority. The first to speak that day was the second-most-junior justice, Antonin Scalia, fifty-four, who had often sparred with Brennan since joining the Court four years earlier as its most conservative and youngest member. Scalia delivered an opinion severely restricting the ability of environmental and other citizen groups to challenge government action in federal court.

Justice Sandra Day O'Connor, President Reagan's first addition to the Court and the first female U.S. Supreme Court justice in history, followed with four decisions. Justice Byron White, who was the second-most-senior justice after Brennan and who had drifted to the right since President John F. Kennedy appointed him, then followed, with one. The six decisions announced by the members of the Court's conservative wing were a fitting finish to a term in which they had seemed to dominate.

Finally, Chief Justice William H. Rehnquist came to the last opinion of the dayand of the Court's termand announced that Brennan would deliver it. Brennan leaned forward and pulled himself up in his high leather chair to make sure he could be seen above the raised mahogany bench. He spoke in a strong voice, although one slowed by age and more gravelly than usual due to a lingering cold. Brennan stated that the Court was upholding the constitutionality of two affirmative action programs in which the Federal Communications Commission gave preference to minority-owned companies to operate television and radio stations.