William J. Brennan Jr.

William Joseph Brennan, Jr.
Associate Justice of the United States Supreme Court
In office October 16, 1956 – July 20, 1990
Nominated by	Dwight Eisenhower
Preceded by	Sherman Minton
Succeeded by	David Souter

William Joseph Brennan, Jr. (April 25, 1906 – July 24, 1997) was an Associate Justice of the Supreme Court of the United States. Known for his outspoken liberal views, including opposition to the death penalty and support for abortion rights, he was considered to be among the Court's most influential members.

Early life

Brennan was the second of eight children. His parents, William and Agnes (McDermott) Brennan, were Irish immigrants. They met in the United States, although both were originally from County Roscommon in Ireland. His father had little education; he worked as a metal polisher. However, he rose to a position of leadership, serving as the Commissioner of Public Safety for the city of Newark from 1917 to 1930.

Brennan attended public schools in Newark, New Jersey, graduating from Barringer High School. He then attended the Wharton School of the University of Pennsylvania, where he graduated with a degree in Economics in 1928. While there, he was a member of Delta Tau Delta Fraternity.

When he was 21, Brennan married Marjorie Leonard, whom he had met in high school. They eventually had three children: William, Nancy and Hugh. Brennan attended Harvard Law School, where he was a member of the Harvard Legal Aid Bureau. He graduated in 1931 and entered private practice in his home state of New Jersey, where he practiced labor law at the firm of Pitney Hardin (which would later become Day Pitney). He entered the Army as a major in March 1942, and left as a Colonel in 1945. He did legal work for the ordnance division. In 1949, Brennan was appointed to the Superior Court (a trial court) by Governor of New Jersey Alfred E. Driscoll. In 1951, Driscoll appointed him to the New Jersey Supreme Court.

Supreme Court

Brennan was named to the U.S. Supreme Court through a recess appointment by Dwight Eisenhower in 1956, shortly before the 1956 presidential election. Presidential advisers thought the appointment of a Catholic Democrat from the Northeast would woo critical voters in the upcoming election for Eisenhower, a Republican.

Brennan gained the attention of Eisenhower's attorney general and chief legal affairs adviser, Herbert Brownell, when Brennan had to give a speech at a conference (as a substitute for New Jersey Supreme Court Chief Justice Vanderbilt). To Brownell, Brennan's speech seemed to suggest a marked conservatism, especially on criminal matters. Other factors playing into Brennan's appointment were his Catholicism, his status as a state court judge (no state judge had been appointed to the High Court since Benjamin Cardozo in 1938), and Eisenhower's desire to appear bipartisan after his appointments of justices Earl Warren and John Harlan.

Justice Brennan became one of twelve Catholic justices– out of 110 total through the appointment of Justice Samuel Alito and Chief Justice John Roberts– in the history of the Supreme Court.

Supreme Court confirmation

His nomination faced a small amount of controversy from two angles. The National Liberal League opposed his nomination because they thought he would rely on his religious beliefs rather than the Constitution when ruling, and Senator Joseph McCarthy had read transcripts of Brennan's speech where he decried overzealous anti-communist investigations as "witch-hunts." After a confirmation hearing in which Brennan defended himself against McCarthy's attacks and proclaimed that he would rule solely on the basis of the Constitution and not on Church law, he was confirmed by a near-unanimous vote, with only Senator McCarthy voting against him.

He filled the seat vacated by Justice Sherman Minton. He held the post until his retirement on July 20, 1990 for health reasons; he was succeeded on the Court by Justice David Souter. Brennan then taught at Georgetown University Law Center until 1994. With 1,360 opinions, he is second only to William O. Douglas in number of opinions written while a Supreme Court justice.

Warren Court

An outspoken liberal throughout his career, he played a leading role in the Warren Court's dramatic expansion of individual rights. Brennan played a large behind-the-scenes role during the Warren Court, coaxing more conservative colleagues to join the Court's decisions. Brennan's opinions with respect to voting (Baker v. Carr), criminal proceedings (Malloy v. Hogan), the free speech and establishment clauses of the First Amendment (Roth v. United States), and civil rights (Green v. School Board of New Kent County) were some of the most important opinions of the Warren Era. Brennan's role in expanding speech rights under the First Amendment is particularly notable, as he wrote the opinion of the court in 1964's New York Times v. Sullivan, which created constitutional restrictions on the law of libel. It was Brennan who coined the phrase "chilling effect", in 1965's Dombrowski v. Pfister. His close friendship with Chief Justice Warren, who frequently assigned Brennan the task of writing the majority opinion, led to the other justices nicknaming him the "deputy Chief".

Burger and Rehnquist Courts

On the more moderate Burger Court, Brennan was a staunch opponent of the death penalty, and a supporter of abortion rights, and joined the majority in landmark rulings on both issues (1972's Furman v. Georgia on the death penalty and 1973's Roe v. Wade on abortion). With the accession of the most conservative member of the court, William Rehnquist, to the position of Chief Justice, and the replacement of Warren Burger and the moderate Lewis Powell with conservatives Antonin Scalia and Anthony Kennedy, Brennan found himself more frequently isolated. At times his opinions would be joined only by Thurgood Marshall, as by 1975 the two were the last remaining liberal justices of the Warren Court (Byron White was the third survivor of the Warren Court during Rehnquist's tenure, but he often sided with the conservatives, especially on cases involving criminals and abortion). This likemindedness led to both Brennan and Marshall's clerks referring to them as 'Justice Brennan-Marshall' in the face of the court's heavy conservative opposition to the two. Brennan declared in Furman that he believed the death penalty violated the Eighth Amendment's prohibition on "cruel and unusual" punishment, and for his remaining years on the bench he and Marshall dissented from every case upholding the imposition of the death penalty. He was able to convince no other justice of this view, though Justice Harry Blackmun would eventually agree in 1994--after Brennan's retirement.

In his penultimate and final terms on the Court, he wrote the controversial rulings for Texas v. Johnson and United States v. Eichman, respectively. In both cases, the Court held that the First Amendment protects flag desecration.

Brennan's wife Marjorie died in 1982. A few months later, in 1983, he married Mary Fowler, who had served as his secretary for 26 years. He was 77 years old. Brennan's colleagues learned of his second marriage via a short office memo stating, "Mary Fowler and I were married yesterday and we have gone to Bermuda."

Judicial philosophy

Brennan strongly believed in the entirety of the bill of rights, arguing early on in his career that it should be applied to the states in addition to the federal government. He often took positions in favor of individual rights against the state, often favoring criminal defendants, minorities, the poor, and other underrepresented groups. Furthermore, he generally shied away from the absolutist positions of Justices Hugo Black and William O. Douglas, being very amenable to compromise. He was willing to compromise to win a majority of Justices. Brennan's conservative detractors charged that he was a purveyor of judicial activism, accusing him of deciding cases before coming up with a legal rationale for them. At his retirement, Brennan said the case he thought was most important was Goldberg v. Kelly, which ruled that a local, state or federal government could not deny welfare payments to a person without an individual evidentiary hearing.

In the 1980s, as the Reagan administration and the Rehnquist Court threatened to "roll back" the decisions of the Warren Court, Brennan became more vocal about his jurisprudential views. In a 1985 speech at Georgetown University, Brennan criticized Attorney General Edwin Meese's call for a "jurisprudence of original intention" as "arrogance cloaked as humility" and advocated reading the U.S. Constitution to protect rights of "human dignity."

Brennan was also less interested in stare decisis or the avoidance of "absolutist" positions where the death penalty was concerned. Brennan and Thurgood Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled that the death penalty was constitutional four years later. Thereafter, Brennan or Marshall took turns, joined by the other, in issuing a dissent in every denial of certiorari in a capital case, and from every decision in a case which the court did take which failed to vacate a sentence of death.

Brennan also authored a dissent from the denial of certiorari in Glass v. Louisiana. In Glass, the Court chose not to hear a case that challenged the constitutionality of the use of the electric chair as a form of execution.

Brennan wrote:

Th[e] evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the "mere extinguishment of life." Witnesses routinely report that, when the switch is thrown, the condemned prisoner "cringes," "leaps," and "fights the straps with amazing strength." "The hands turn red, then white, and the cords of the neck stand out like steel bands." The prisoner's limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and "rest on [his] cheeks." The prisoner often defecates, urinates, and vomits blood and drool.

Brennan concluded that electrocution is "nothing less than the contemporary technological equivalent of burning people at the stake.

Quotations by Brennan

• "[W]e 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." In New York Times Co. v. Sullivan, 1964.
• "I cannot accept the notion that lawyers are one of the punishments a person receives merely for being accused of a crime." Jones v. Barnes, 463 U.S. 745 (1983) (dissenting).
• "Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life." McClesky v. Kemp, , 481 U.S. 279 (1987) (dissenting).

See also

• Brennan Center for Justice at the New York University School of Law
• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of United States Chief Justices by time in office
• List of U.S. Supreme Court Justices by time in office

• United States Supreme Court cases during the Burger Court
• United States Supreme Court cases during the Rehnquist Court
• United States Supreme Court cases during the Warren Court
• William J. Brennan Award

Secondary Sources

• Abraham, Henry J., Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d. ed. (New York: Oxford University Press, 1992). ISBN 0-19-506557-3.
• Cushman, Clare, The Supreme Court Justices: Illustrated Biographies,1789-1995 (2nd ed.) (Supreme Court Historical Society), (Congressional Quarterly Books, 2001) ISBN 1568021267; ISBN 9781568021263.
• Frank, John P., The Justices of the United States Supreme Court: Their Lives and Major Opinions (Leon Friedman and Fred L. Israel, editors) (Chelsea House Publishers: 1995) ISBN 0791013774, ISBN 978-0791013779.
• Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. ISBN 0195058356; ISBN 9780195058352.
• Martin, Fenton S. and Goehlert, Robert U., The U.S. Supreme Court: A Bibliography, (Congressional Quarterly Books, 1990). ISBN 0871875543.
• Urofsky, Melvin I., The Supreme Court Justices: A Biographical Dictionary (New York: Garland Publishing 1994). 590 pp. ISBN 0815311761; ISBN 978-0815311768.
• Woodward, Robert and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 9780380521838; ISBN 0380521830. ISBN 9780671241100; ISBN 0671241109; ISBN 0743274024; ISBN 9780743274029.