Brennan, long a liberal on high court, dies at 91 Scholar, deal maker was among the most influential of justices; Champion of human rights; He helped to shape the modern concept of First Amendment

THE BALTIMORE SUN

WASHINGTON -- Retired Supreme Court Justice William J. Brennan Jr., often considered the most influential justice of the past half-century and clearly its strongest champion of individual rights, died yesterday at age 91.

That rarest of judges, mixing the deep-thinking detachment and originality of a legal scholar with the deal-making wiles of an Irish politician, Justice Brennan had worked tirelessly behind the scenes to mold much of modern constitutional history.

He was the architect of the First Amendment as it is understood today, the principal author of the "one-person, one-vote" concept of pure political equality, the stubborn exponent of the idea that even the worst criminals deserve a measure of legal dignity, a ceaseless advocate of the equality of the races and of the sexes, and a promoter of the idea that the states must obey the Bill of Rights as fully as the national government must.

When the modern court began shifting its constitutional direction in the mid-1970s away from Brennan precedents and toward scaling back individual rights, he launched a speaking and writing campaign to persuade state supreme courts to step in and shore up those rights under state constitutions.

In his last public writing a year ago, Justice Brennan explained his zeal: "If I have drawn one lesson in my 90 years it is this: to strike another blow for freedom allows a man to walk a little taller and raise his head a little higher. And while he can, he must."

Justice Brennan's liberalism, and especially his recognition of rights not literally mentioned in the Constitution, had its sharp critics. These included some of the more conservative justices who joined him on the bench in his later years.

But those justices, too, were deeply fond of him. Justice Antonin Scalia said when Justice Brennan retired seven years ago: "Even those who were most in disagreement with him loved him."

President Clinton, who ordered all U.S. flags lowered to half-staff in Justice Brennan's memory, said his "devotion to the Bill of Rights inspired millions of Americans, and countless young law students, including myself."

Regretted retirement

In private, Justice Brennan said he regretted only one decision: his agreement with a doctor's suggestion in 1990 that he retire because work seemed to have become life-threatening. He had suffered a small stroke, and his doctor feared the worst if he remained on the bench.

Justice Brennan said to his wife and close friends that he thought he should continue serving on the court, believing -- as he wrote last year -- that "continuous hard work is needed if we are to realize the true potential of our Constitution and its Bill of Rights."

To Justice Brennan, the purpose of the Constitution and its Bill of Rights could be summed up simply: In his words, it was "to protect individual freedom from repressive governmental action."

An unapologetic liberal whose influence survived even the passing of the court he personally had dominated, under Chief Justice Earl Warren, Justice Brennan failed in but one cherished goal: He wanted to live long enough to see the end of the death penalty in America, a sentence he opposed under all circumstances as cruel and unusual punishment under the Eighth Amendment.

No justice now on the court has ever cast a vote like Justice Brennan's to scuttle the penalty. A day before Justice Brennan died, a convicted Virginia murderer was executed after the Supreme Court turned down a last-minute claim of innocence.

Bernard Schwartz, a Supreme Court historian and law professor at the University of Tulsa, summed up in a recent tribute what has become a common assessment of Justice Brennan:

"If we look at justices in terms of their role in the decision process, William J. Brennan Jr. was actually the most influential associate justice in Supreme Court history.

"More than any justice," Professor Schwartz said, "Brennan was the strategist behind Supreme Court jurisprudence."

It was in the internal decision-making process never seen by the public -- the corridor bargaining, the one-on-one pleading and flattering, the creative process of giving and taking that produces coalitions where Justice Brennan chose to spend his energies.

Given to reminding everyone -- and especially his law clerks -- that "five votes can do anything around here," Justice Brennan worked to get a majority of five as fervently and as successfully as any predecessor.

Often, if not always, five votes wound up in favor of his theories about shielding or expanding someone's constitutional rights.

Justice David H. Souter, who took Justice Brennan's seat in 1990 and became not only a devoted personal companion to Justice Brennan but also a follower of much of his judicial philosophy, marveled at Justice Brennan's skills as a tactician.

Justice Souter remarked last year: "Anyone who earns his pay by appellate judging has to see Brennan the tactician the way joggers see marathoners."

A modest man withal

For all of his power and his negotiating prowess, Justice Brennan remained a modest man to his closest friends and associates. He once told Professor Schwartz how surprised he was that someone at a charity auction had bid several thousand dollars to have lunch with the Brennans.

Justice Brennan had displayed some of the same modesty at the time of his nomination to the court by President Dwight D. Eisenhower in 1956: Likening himself to a mule entering the Kentucky Derby, he said: "I don't expect to distinguish myself, but I do expect to benefit from the association."

Norman Redlich, dean emeritus of New York University School of Law and a Brennan friend for more than 30 years, said yesterday: "He was a very gregarious person. He would always greet you with a bear hug. Bill Brennan's son once said to me, 'When Dad went on the bench, American politics lost a great potential ward-heeler.' "

Dean Redlich added: "I don't think any other justice could combine his judicial skills, his legal skills, with his political skills -- and I use the word political in a good sense."

Stephen J. Wermiel, a Georgia State University professor who is writing an authorized biography of Justice Brennan, said yesterday: "He came to the court with an understanding of the power and potential of law to serve humankind. And he learned how to carry that feeling out as a justice."

Justice Brennan, Professor Wermiel said, had an "ability to read rights into the Constitution" and to get five votes to make that happen, by tailoring an opinion not just to win but to make it acceptable to a core group of justices.

The basic constitutional guideline that Justice Brennan followed, throughout his career, was that the Constitution is "a living document," to be interpreted in a modern way by modern judges.

Last year, repeating a thought he had expressed many times in court opinions, Justice Brennan wrote: "The genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs."

His 34 terms on the court, Justice Brennan has said, "passed in a twinkle of an eye. I was startled when others pointed out that I served with 22 of the 108 justices who ever served on the court."

He could look up from his desk in his court chambers, he said, and see "the 40-odd shelf feet of my judicial opinions all bound neatly in red" -- 461 majority opinions, 425 dissents, 474 other opinions.

Each, he said, "was shaped by the heroic efforts of litigants and judges, the profound insights of scholars, countless hours of impassioned debate among my colleagues on the bench and my law clerks in chambers, and, I admit, quite a bit of hand-wringing on my own."

He added: "The truth, which I cannot stress enough, is that I served on a court of nine. The strides we made on the court during my tenure we made as a team."

One person, one vote

Experts on the court, however, can recite a long list of examples of how Justice Brennan was personally responsible for nudging the team to make those strides.

Law professors Lani Guinier and Pamela Karlan give him primary credit, for example, for launching what they call the court's "most successful modern-day effort at fundamental legal and political change" -- the 1962 decision in the case of Baker vs. Carr that cleared the way for courts to strike down legislative districting that gave voters unequal representation in state legislatures and Congress.

That decision gave rise to the now commonly accepted concept of "one person, one vote."

One of Justice Ruth Bader Ginsburg's favorite examples was a Brennan effort that fell just short of gaining majority approval. It was his 1973 opinion in the case of Frontiero vs. Richardson, declaring -- for himself and three other justices -- that sex discrimination should be banned as much as race discrimination is under the Constitution.

Justice Ginsburg was the women's rights lawyer who encouraged Justice Brennan to go that far in that case. Last year, as a justice, she sought to build on that precedent in the decision requiring the Virginia Military Institute to admit female cadets.

Although Justice Brennan worked energetically to find ways to accommodate his colleagues, even while trying to see his own basic doctrines prevail, he never abandoned his own strongly held views in favor of individual liberties.

He liked to recall the remark of Justice Felix Frankfurter, who had taught Justice Brennan at Harvard Law School and later became a colleague: "I always encourage my students to think for themselves, but Brennan goes too far!"

Life, ideas celebrated

Justice Brennan's life on the court has been celebrated in some 40 tributes in law reviews; two biographies and the third, by Professor Wermiel, in the works; a volume of commentary by some of the justices and other court observers; and the creation of a research institute in his honor -- the Brennan Center for Justice at New York University Law School.

Until illness recently forced him to withdraw from all activity, Justice Brennan monitored the work of that center. He even gave it permission to take a stance, in a Supreme Court case over election campaign financing, that contradicted a position he had taken as a justice.

The center is headed by a former Brennan law clerk, E. Joshua Rosenkranz, and is intended to serve as a living memorial to him.

Mr. Rosenkranz last saw Justice Brennan at his Washington home in early June.

"It was the best encounter I had with him in many, many months," Mr. Rosenkranz said.

His former clerk read to the justice from the commemorative volume of comments about his work, "Reason and Passion: Justice Brennan's Enduring Influence."

Mr. Rosenkranz said he read the chapter by David Halberstam, who describes Justice Brennan as a late bloomer who was as humane a person as he was a forceful thinker.

There is a detailed description of the justice's parents, who were born in Ireland, and the work of his father, William J. Brennan Sr., as a coal stoker and shoveler in Newark, N.J. His father eventually became a prominent labor leader and politician in Newark.

"It is a moment, reading to the justice, that I will remember the rest of my life," Mr. Rosenkranz said.

William J. Brennan Jr.

Born: April 25, 1906, in Newark, N.J., the second of eight children of William Brennan and the former Agnes McDermott.

Education: Magna cum laude graduate of the University of Pennsylvania. Graduated Harvard Law School 1931.

Early career: Specialized in labor law in Newark and became a trial judge, an appeals court justice and member of the New Jersey Supreme Court.

High court: Nominated to the Supreme Court by President Dwight D. Eisenhower in 1956, retired in 1990. Only five justices in the court's history served longer.

Family: Survived by his second wife, three children from his first marriage and seven grandchildren.

Memory

From 1992: Justice David H. Souter, right, who replaced Brennan, told the Harvard Club of Washington in 1992 of his first meeting with Brennan:

"I was not what might be called a Brennan liberal. I did not know what kind of reception I would get from him. He saw me standing in the outer reception room and he came forward to greet me. 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."

Tears welled in Souter's eyes as he continued: "Quite simply, Justice Brennan is a man who loves. The Brennan mind, which held a share of the judicial power of the United States, has met its match in the Brennan heart. And in their perfect match lies the secret of the greatness of our friend."

Notable opinions

Excerpts from the writings of the late Supreme Court Justice William J. Brennan:

From Eisenstadt vs. Baird, a 1972 decision striking down a law that banned distribution of contraceptives to unmarried people for birth control:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusions into matters so fundamentally affecting a person as whether to bear or beget a child.

From Furman vs. Georgia, a 1972 ruling that began a four-year moratorium on capital punishment in the United States:

Death is an unusually severe and degrading punishment; there is a strong possibility that it is inflicted arbitrarily; its rejection by contemporary society is virtually total, and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of zTC these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.

From his dissent in U.S. vs. Stanley, a 1987 decision barring a lawsuit by a soldier who unknowingly ingested LSD in secret chemical-warfare experiments:

Experimentation with unknowing human subjects is morally and legally unacceptable. Serious violations of the constitutional rights of soldiers must be exposed and punished. Soldiers ought not to be asked to defend a Constitution indifferent to their essential human dignity.

From a 1985 speech delivered at Georgetown University:

We current justices read the Constitution in the only way we can: as 20th-century Americans. The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

From New York Times vs. Sullivan, a 1964 ruling that said the First Amendment affords news organizations some protections from libel lawsuits by public officials:

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 constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of ++ whether it was false or not.

From a 1987 speech written to celebrate the Constitution's 200th anniversary:

Our entire Constitution is a national treasure; a document of heady ideals and eloquent, elegant language; a political landmark for individual rights. But one thing the old parchment is not is a china doll that has to be protected from the regular world by a good layer of cotton wool. It is a tough old soldier that's collected quite a few respectable dents in the line of duty.

ASSOCIATED PRESS

Pub Date: 7/25/97

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