15 December, 2007Issue 7.1HistoryNorth AmericaPolitics & Society

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The Love That Moved

John-Paul McCarthy

Proceedings in the Supreme Court of the United States in Memory of Justice Brennan
Office of the Clerk of the Supreme Court of the United States, 2007
Originally issued May 1998


At a special dinner in 1992 convened in honour of the recently retired US Supreme Court Justice William J. Brennan, Jr, his successor on the bench quietly stole the show. David Hackett Souter, a tender bachelor who seems never to have recovered from a broken heart sustained as a young man, recalled his first meeting with Brennan in 1990 after his confirmation to the seat Brennan had held for nearly thirty-four years. ‘I certainly did not know how he would feel about the fact that I was not what might be called a Brennan liberal,’ Souter said. He continued:

I got ready for a handshake and what I got instead was a bear hug. Justice Brennan just threw his arms around me, and he hugged me, and he hugged me, and he went on hugging me for a very, very long time. And when I got hugged like that on that morning in October two years ago, I became not only the beneficiary of Justice Brennan’s love, but I also became one of thousands who have basked in the same warmth.

Souter was not alone in his surprise however, as Brennan seems to have astonished almost everybody who crossed his path during his epic tenure between 1956 and 1990. The memorial proceedings of the US Supreme Court, reissued to mark the tenth anniversary of his death, capture something of Brennan’s profound influence over contemporary American society. He wrote over thirteen hundred judicial opinions covering nearly every subject of importance, which are elegantly summarised in these elegiacs. And yet, scholars are still struggling to explain how this modest, gentle child of Irish immigrants, seemingly appointed to the court during one of Eisenhower’s shambolic golf days, would come to fundamentally change the American constitutional landscape prior to the stroke that forced him off the bench in 1990. As he drove from New Jersey to join a court graced by titans such as John Marshall Harlan II (a ‘Balliol Man’ down to his bootstraps), Hugo Lafayette Black (the former Klansman turned constitutional virtuoso) and William O. Douglas (the pathological liar born without an off-switch who wrote opinions on the back of cocktail napkins), Bill Brennan said he felt like the mule at the Kentucky Derby. These memorial proceedings show however that not only did he last the course, but that the mule was the only one who really knew the way home.


So spirited is the praise in these spirited proceedings that it is easy to forget that Brennan’s appointment in 1956 was greeted with a sharp intake of breath and more than one pursed mouth. Those leathery aristocrats orbiting the Harvard Law School—Paul Freund, Learned Hand and his colleague Justice Felix Frankfurter—were stupefied that someone with such mediocre grades was picked at all. But Brennan was to spend a lifetime confounding his critics. Here was the dapper Jimmy Walker look-alike who went home every evening to read Aquinas on a rickety card table set up on his porch in Georgetown and who dwelt repeatedly on Aristotle’s exigent critique of the crazy fantasies which make up Plato’s Republic. And here also was the pious Irish Catholic who did more than any other judge to articulate a woman’s inalienable right to control her own body in matters of procreation, a position which left the Catholic hierarchy open-mouthed with rage after Roe v. Wade was decided in 1973.

These proceedings marvel at Brennan’s legal acumen as they explain how he carefully and cannily developed his reticulate jurisprudence, especially in matters dealing with the mighty Due Process Clause of the Fourteenth Amendment. They arguably underestimate Brennan’s skills as a rhetorician however, for his opinions are some of the most moving authored in the last century. Recounting his major works at a stately gallop, one might linger over any number of them. There was Bowen v. Gilliard, the mundane welfare entitlement case in 1987 that Brennan somehow transformed into a meditation on the nature of contemporary family life as refracted through Tolstoy’s belief that ‘Happy families are all alike; every unhappy family is unhappy in its own way.’ Or his extraordinarily powerful essay in Glass v. Louisiana, where he set out to show that there was no physical or moral difference between the pyres of seventeenth-century Salem and the contemporary electric chair.

While nobody knows for sure why words move us, in a recent sublime meditation on this problem, Louis Menand of New Yorker fame suggested that ‘[w]e hoard quotations like amulets. They are charms against chaos, secret mantras for dark times, strings that vibrate forever in defiance of the laws of time and space.’ Bill Brennan knew this at some level, and enciphered in the long list of his opinions one will find several frugally beautiful passages, still luminous after all these years, his rendition of a series of principles by which the world might live. Putting a constitutional ceiling on libel awards for the first time in over one hundred and seventy years (and thereby saving the New York Times from certain financial ruin), Brennan’s landmark opinion in New York Times v. Sullivan began with the celebrated words,

Thus we consider this case against the background of a profound national commitment to the 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.

The elegance of his idealism here was matched by a fierce eloquence in dissent. Objecting to the court’s dismissal of a death penalty appeal in less than fifteen minutes while a deranged defandant lay tethered to the electric chair, Brennan produced a j’accuse that still shocks the conscience twenty years later. ‘Due process’ he wrote in Lowenfield v. Butler

means little if it requires the courts to provide an opportunity to be heard without imposing on them a concomitant duty to listen –and, at least when a life is at stake, to listen very carefully. Presumably, it was in recognition of the injustice that four of us (one less than the requisite five) voted to stay petitioner’s execution, so as to consider his insanity claim in an atmosphere that was not itself lunatic. Regrettably, this case is not atypical. It is the natural product of a penal system conducive to inaccurate factfinding and shoddy analysis. And I doubt that any system could be devised to cure the evil, so long as States continue to impose punishments so severe as to be irrevocable. Even were I not convinced that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth Amendment, I would have no part of a penal system that permits a State’s interest in meting out death on schedule to convert our constitutional duty to dispense justice into a license to dispense with it.

Similarly his dissent in McCleskey v. Kemp spoke not just to his colleagues, but to future generations whom he hoped would recognise the racist nature of the death penalty experiment. ‘It is tempting to pretend’ he suggested here ‘that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. The destinies of the two races in this country are indissolubly linked together and the way in which we choose those who will die reveals the depth of moral commitment among the living’.

His notes prior to Roe show that saw that the problem at issue went deeper than the doctor-patient relationship and that the court was confronted with an existential quandary at its core. He told Justice Douglas in 1973 that ‘I agree with you that the right [to terminate a non-viable fetus] is a species of ‘liberty’…but I would identify three groups of fundamental freedoms that ‘liberty’ encompasses: first, freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person; second, freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception and the education and upbringing of children; and third, autonomous control over the development and expression of one’s intellect and personality.’

And in Cooper v. Aaron, Brennan took aim at the authorities in Arkansas who called out the state militia so as to prevent the enrollment of black children in the public schools. In what was probably the most incendiary assignment of his career to date (he had only been on the bench for two years by 1958), Brennan spoke softly, but brandished a big stick.‘No state legislator or executive or judicial officer’ he warned ‘can war against the Constitution without violating his undertaking to support it. The right of a student not to be segregated on racial grounds in schools… is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.’ Brown v. Board of Education would outlive Governor Falbus’s attempt to strangle the mandate of the federal courts in the Old Confederacy.


Justice Felix Frankfurter, who opposed most of Brennan’s attempts to expand dramatically the mandate of the Supreme Court, was fond of telling anybody who would listen that Brennan did not even take his constitutional law class at Harvard, focusing instead on corporate law. So just where in hell did Brennan get all of the above? Here the memorial proceedings are of little help because Brennan’s intellectual development remains poorly understood. His precious case histories, which constitute a kind of intellectual autobiography over his thirty-four terms on the court, remain locked away, though Slate Magazine published a tantalising selection last January. (See http://www.slate.com/id/2156940/entry/2156943/). It is easy to be seduced by trite labels like ‘liberal lion’ or ‘Warren Court activist’. But Brennan surprised nearly everybody by the depth and range of his scholarship and could be unpredictable in certain areas flagged quietly by the proceedings. The late David Halberstam put it elegantly when he asked, ‘[H]ow did this quiet, self-effacing man of surpassing humanity and modesty, and with an intellect defter and more forceful than almost anybody realized become quite likely the dominating figure of the Court over more than a third of a century and equally likely the most influential political figure in America in the post-war years?’

One would like to know more, for example, about the nature of Brennan’s initial doubts about capital punishment in the early sixties, doubts which actually preceded the American Civil Liberties Union’s interest in the problem and which by the early seventies had calcified into an implacable contempt for the machinery of death. He seems to have been traumatised by the skirmishes that accompanied the review of applications for stays of executions, and well into his eighties could emerge from the justices’ private conference each Friday gulping back tears of shame and rage. He also battled with First Amendment issues, and between Roth v. United States in 1957 and Paris Adult Theatre v. Slaton in 1973 made a forlorn effort to define the constitutional limits of unprotected obscenity. By 1973, he had decided that this was an activity in which confusion could only be crowned with absurdity. States, he concluded that year, could not prosecute obscenity absent juvenile involvement or coerced production.

Less straightforward here is Brennan’s Establishment Clause jurisprudence governing the place of religion within the public sphere. His eighty-page opinion in Abington Township School District v. Schempp from 1963, barring the reading of non-denominational excerpts from the Bible in the Pennsylvania public school system, remains a classic of its kind, a passionate coloratura that marches proudly behind the banner of Locke’s Letters on Toleration. Yet this opinion could perhaps only have been written by a practising Catholic, such was the psychological sensitivity in evidence regarding the power of faith in the republic’s tangled sectarian history and his assumption that government could itself actually undermine religious values and not just vice versa. Though stern in this regard, Brennan voted on occasion to exempt non-profit religious organisations from fair-employment laws prohibiting discrimination on grounds of religion. He was initially sympathetic to employees who sued in order to ensure that they did not have to work on their various Sabbath days, though he reversed course here in the early eighties. Brennan’s private faith may well be central to his constitutional analysis as his civil rights opinions conjure up some of the same humane individualism one encounters in the polemics of other pre-eminently Catholic intellectuals such as François Rio, de Tocqueville or Ernest Renan. Where many of his generation found only a bolt-throwing tyrant at the apex of their ancestral Irish Catholicism, Brennan seemed to divine ‘the Love that moved the sun and the other stars’, as well as the emotional foundation for his often lonely attempts to extend the capacious scaffolding of the Fourteenth Amendment around homosexuals, single-mothers and terrified, pregnant teenagers. Yet we still know far too little about this aspect of his life.


The proceedings under review here are too polite in tone to remind readers that Brennan’s eloquence could enrage as much as delight. He made many friends over the course of his thirty-four year service. Beer and nachos were lustily consumed at the World Series every year with Earl Warren, the ailing Chief Justice whom he consoled as he lay dying with the assurance that he had the votes to make sure that Nixon got what was coming to him in the tapes case. He spent many clammy summer evenings drinking bourbon on Hugo Black’s Virginian veranda and Thurgood Marshall, his soul mate on the major constitutional issues in the eighties, hailed him as a ‘brother’ when he retired in 1990. But since Brennan played for keeps, he also made many enemies. Alan Dershowitz has written about the froideur in Brennan’s personality that came out when he would tactically vote to abandon certain criminal defendants to their fates even though he knew they had been unfairly tried or convicted. Brennan sometimes did this as part of a larger power play in order to court a particular colleague whom he was cultivating for the big civil rights cases down the line. Brennan paid particular attention in this regard to Harry Blackmun, that infinitely gentle, infinitely suffering thing

Brennan’s coup d’oeuil remains deeply impressive in retrospect. But if you got on the wrong side of his calculations, the mule at the Kentucky Derby would run you over without a thought. To this extent, Frankfurter’s sneer about there being ‘too much ego in Bill’s cosmos’ could be interpreted as something more than mere jealousy in its dotage. Other scholars who are not necessarily hostile to Brennan’s principled support for racial equality in America have nonetheless complained that he never met an affirmative action scheme that he couldn’t endorse, no matter how gross the racial carve-up involved or how blundering the plan in question. In 1988, he rushed to affirm Virginia’s controversial plan to set-aside 30% of city construction contracts for minority subcontractors without inquiring too closely into how or why the Richmond city council alighted on that precise proportion.

And during Brennan’s penultimate term in 1989, he seemed to precipitate a collective nervous breakdown among his colleagues in the Texas v. Johnson flag-burning case, one of those periodic free speech cases which appear incomprehensible to more jaundiced European eyes and which is duly celebrated here. In his majority opinion holding flag desecration to be a protected form of expressive conduct, Brennan preposterously implied that the fate of American democracy could hinge on whether the state tolerated the antics of drunken flag burners. In dissent, William Rehnquist doubled the delirium with a piece of nonsense of his own and sang the praises of Old Glory while John Paul Stevens, ordinarily a model of poise and urbanity, read his dissent from the bench through tears. It is surely not to be too harsh on the American civic tradition to suggest that federal judges could find better ways to spend their time than deciding non-issues like these amid such fanfare.


The Supreme Court’s memorial to Brennan, hailing him as the most important American judge since Holmes and Marshall, reminds readers that there are times in public life when a man’s stature depends on what he is as much as what he does. This was very true when in 1956 a judicial tyro ambled up to the high-stakes table during a no-limit game that would decide the fate of Jim Crow. Gracious in victory yet correct in retreat, Brennan’s disposition stood in the starkest contrast to the more academic personalities that surrounded him, with their bottomless capacity for scheming, tantrums and grudges. He handled his first six years on the court, his most trying time save for his wife’s long illness throughout the late seventies, with evident dignity, simply ignoring Frankfurter’s taunts about his mediocre grades and gruff New Jersey accent. The burden of cranky colleagues can sometimes coarsen and cripple, but this memorial suggests that Brennan possessed a kind of grace that is rare in men of bravura disposition. He showed no public bitterness when Rehnquist stripped him of his official driver in 1990 and forced a perished octogenarian to climb two flights of stairs to reach his new, diminished chambers [at least karma caught up with R]. And while the court became a terrifically unpleasant place to work in the eighties, no amount of interpersonal pressure could force him off his Eighth Amendment rock on death penalty appeals (the strain of these cases broke the health of his colleague Lewis Powell by 1987, and Powell was hardly a communion boy). Brennan was not a wannabe WASP or one of those professionally Irish bullshit-artists who can shake a NORAID box without spilling a drop from their glass. Rather, he was a man whose soul was his own, one who lived long enough to show that the exercise of power might actually ennoble rather than warp, and that sometimes those whose decisions deeply affect our sad lives can arrange things so that the least matter as much as the greatest, if only for a spell. The man himself may be gone, but his finely wrought words remain. And, happily, those are ours to keep.

John-Paul McCarthy, a DPhil student in History at Exeter College, Oxford, is studying W E Gladstone’s intellectual life.