Justice Brennan: Liberal Champion

Justice Brennan: Liberal Champion

Seth Stern

Language: English

Pages: 688

ISBN: 0547149255

Format: PDF / Kindle (mobi) / ePub

A sweeping insider look at the life of William Brennan, champion of free speech and widely considered the most influential Supreme Court justice of the twentieth century


Before his death, William Brennan granted Stephen Wermiel access to volumes of personal and court materials that are sealed to the public until 2017. These are what Jeffrey Toobin has called “a coveted set of documents” that includes Brennan’s case histories—in which he recorded strategies behind all the major battles of the past half century, including Roe v. Wade, affirmative action, the death penalty, obscenity law, and the constitutional right to privacy—as well as more personal documents that reveal some of Brennan's curious contradictions, like his refusal to hire female clerks even as he wrote groundbreaking women’s rights decisions; his complex stance as a justice and a Catholic; and details on Brennan’s unprecedented working relationship with Chief Justice Earl Warren. Wermiel distills decades of valuable information into a seamless, riveting portrait of the man behind the Court's most liberal era.

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suggesting substantial revisions. Brennan sent along Posner's memo nearly verbatim, making only minor changes in pencil to soften up the tone. Brennan wanted it to sound more like a suggestion than a critique. "While I agree with a great deal of it," Brennan gently wrote to his prickly colleague, "I should like to suggest a substantial change in emphasis for your consideration." He noted, "I hesitate to bring the husband-wife relationship within the right to association we have constructed in the

statistics that showed the death penalty was being imposed primarily on minorities. He argued that such discrimination qualified as "unusual" punishment under the Eighth Amendment. Stewart and White emphasized the infrequency and arbitrariness by which death sentences were imposed. Marshall provided the fifth vote for what Brennan knew was a particularly fragile majority. Each justice seemed inclined to go his own way rather than sign on to a single opinion. Nevertheless, in the weeks that

pains: Ibid. Perhaps the only parallel: Robert Henry, "The Players and the Play"' in The Burger Court: Counter-Revolution or Confirmation? ed. Bernard Schwartz (New York: Oxford University Press, 1998), 20. [>] "Who am I": Stephen Barnett (WJB OT '63 clerk) interview, Oct. 30, 1989. "liberating this country": Anthony Lewis, "Sex ... and the Supreme Court," Esquire, June 1963, 82. "hopelessly divided": WJB to JMH, June 9, 1962. Manual Enterprises v. Day: 370 U.S. 478 (1962). [>] American

increase for police and firemen: "This was only a living wage, and I think the men were entitled to it." Bill's liberalism did not extend, though, to his attitudes toward civil liberties. He pledged full cooperation with efforts to suppress the sale of magazines and other publications deemed morally objectionable. His tenure as commissioner coincided with a national crackdown on foreign radicals and suspected Communists, a movement he joined without qualms. He declared that any police officer

reapportionment case, in April 1961, everyone—including the lawyers arguing in favor of reapportionment—understood that Potter Stewart would be the key justice in the case. Reminiscent of the lawyer who once joked about moving his lectern directly in front of Stewart, the plaintiffs' lawyers in Baker v. Carr directed their arguments at Stewart. Frankfurter gave a tour de force argument at the April 21 conference, exceeding even his usual flare for melodrama. He spoke for at least ninety minutes,

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