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The Most Skillful Liberal

Paul Hosefros/The New York Times/Redux
Justice William J. Brennan in his Supreme Court chambers, Washington, D.C., 1986

In 1946, in the case of Colegrove v. Green, the Supreme Court rejected an attempt to get the federal courts to address the festering problem of political districts grossly unequal in population. At the time, for example, Connecticut was districted so that the 177,000 citizens of Hartford elected two members of the state House of Representatives; so did the town of Colebrook, population 592. Of course the largely rural beneficiaries of the malapportionments were disinclined to correct the distortions. But Justice Felix Frankfurter, in finding that a claim of unconstitutional discrimination was not fit for judicial resolution, wrote: “Courts ought not to enter this political thicket.”

In the years after that decision the Court rejected ten more challenges to unequal districts—summarily, without opinions. The issue seemed to be dead. Then, in 1960, a case called Baker v. Carr came to the Court from Tennessee, and the Court agreed to hear it. One of Justice William J. Brennan Jr.’s law clerks that year, Richard S. Arnold, noted in his diary that four justices had voted to hear the case, the minimum number required. He added:

They want to overrule Colegrove. The boss doubts they will have the votes. So do I.

After argument—twice—of Baker v. Carr, the Court was divided: four for sticking to Colegrove and four for overruling it. The ninth justice, Potter Stewart, was willing to have districting questions go to the courts, but with no intimation of what constitutional test would be applied. Chief Justice Earl Warren assigned the opinion of the Court to Justice Brennan, believing that he would have the best chance of building a majority.

Justice Brennan wrote an opinion aimed at securing Stewart’s vote. It eschewed any discussion of what the Constitution would require if unequal apportionments were put to the test. The opinion was a scholarly examination of what are called political questions, matters on which courts should stay their hand, concluding that districting was not one. Justice Stewart joined unreservedly. Then Justice William O. Douglas wrote a concurring opinion demanding absolute population equality in political districts. That moved Justice Stewart to add a concurrence emphasizing the limited nature of what the Court was actually deciding. The situation was in danger of unraveling, but Justice Brennan held it together. Then one of the original four opponents, Justice Tom C. Clark, switched to Brennan’s side. And another, Justice Charles E. Whittaker, retired because of ill health. The vote to overrule Colegrove was 6–2.1 The day after the decision a former Brennan law clerk, Daniel Rezneck, wrote him:

Bravo! That was a memorable day yesterday, one of the great ones in the Court’s history…. I think a certain dissenting colleague of yours must have been reminded of the last words of General Custer: “Where did all those damned Indians come from?”

Baker v. Carr set off an explosion of lawsuits challenging unequal districts around the country. Just two years later the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required substantial equality in all its legislative districts. Apportionments were adjusted without any of the political-judicial conflict that Justice Frankfurter had feared. Chief Justice Warren said later that the districting cases were the most important of his years on the Court.

That constitutional revolution would not have happened without Justice Brennan. The record as now known makes that clear. Baker v. Carr is a powerful example of a phenomenon that runs through Brennan’s thirty-four years on the Supreme Court (1956–1990): his ability to produce majorities for liberal outcomes in difficult cases. His colleague Thurgood Marshall once said to me, “I don’t know how he does it.”

How did he do it? is the question underlying much of the book by Seth Stern and Stephen Wermiel. The largest part of the book is devoted to an examination of Justice Brennan’s work on the Supreme Court term by term. And the focus is on how he struggled to build majorities. The authors disclose a good deal of the process that went on before the decision in many cases. They could do that because they had unusual access to Justice Brennan’s papers—which in turn stems from the unusual history of the book.

Justice Brennan agreed in 1986 to cooperate in a biography by Stephen Wermiel, a lawyer-journalist who was then covering the Supreme Court for The Wall Street Journal. He opened his files to Wermiel and was interviewed by Wermiel more than sixty times in the coming years. He also gave Wermiel copies of the narrative histories of Supreme Court decisions he had his law clerks prepare each term—something that, to my knowledge, no other justice has done.

Wermiel spent years doing research and writing a few draft chapters but put the biography aside after Brennan’s death in 1997. Finally, in 2006, he enlisted another lawyer-journalist as coauthor, Seth Stern, who did further research after absorbing Wermiel’s. Stern wrote most of the book. (Wermiel now teaches constitutional law at American University’s Washington College of Law; Stern is a reporter for Congressional Quarterly.)

The book is not an authorized biography in the sense of one controlled by its subject. Brennan did not direct Wermiel’s research or his early drafts, and he died before most of the writing was done. The authors do not write as advocates of his liberal views in criminal law, obscenity, separation of church and state, or other subjects. They seem detached recorders rather than supporters. And on some matters they are critical.

One such matter is Brennan’s decision in 1966 to withdraw an invitation to Michael Tigar to become one of his law clerks. Wermiel and Stern say the decision “seems at odds with his principles.” Tigar was a student at Boalt Hall, the law school of the University of California at Berkeley, ranked first in his class. After Brennan made the offer, a public storm blew up over Tigar’s left-wing political activities as an undergraduate and a law student at Berkeley. Among other things he had gone to a youth festival in Helsinki and written an article about it for People’s World, a Communist newspaper on the West Coast. Justice Brennan was visited by his newest colleague, Abe Fortas, and warned that members of Congress would attack him if he went through with the Tigar appointment; Brennan knew that Fortas was close to President Lyndon Johnson and may have had connections to the FBI. He withdrew the clerkship offer. In extenuation, the authors fairly note that in this case, apart from any question of courage, Brennan was always concerned about the Court’s public standing.

One thing that emerges from the book’s detailed accounts of the way decisions developed is how willing Brennan was to accept suggestions from colleagues. He was never an absolutist, as Justice Hugo L. Black proudly called himself on issues of free speech. Thus in the great libel case New York Times v. Sullivan, in which Justice Brennan’s opinion for the first time applied the First Amendment’s protections to libel cases, Justices Black, Douglas, and Arthur Goldberg wanted to protect all critical comments about public officials, true or false; Justice Brennan’s opinion for the Court left knowing or reckless falsehoods open to libel suits. That view attracted the other five votes. But the hope for a majority was not the only reason for Brennan’s position. He thought there should be some room for officials to repair their reputations. He remembered Senator Joseph McCarthy’s attacks on supposed Communists in government.

Any Supreme Court justice would be pleased to have his view supported by a majority. But that was not as strong a concern for others as it was for Brennan. Justice Black was a fierce advocate of freedom of speech and press. His views had a profound influence on the Court over the years, but they were mostly expressed in dissenting opinions. Holding on to a position untempered by compromise mattered more to him than gathering majorities in particular cases.

One subject on which Justice Brennan inadvertently became a leader—obscenity—turned out not to be suitable to agreement among the justices. In 1957, in his first term on the Court, Brennan got the assignment from Chief Justice Warren to write the Court’s opinion in Roth v. United States. Samuel Roth, a seller of books with titles such as Wanton by Night, had been convicted of violating the Comstock Act, a federal statute named for the anti-obscenity crusader Anthony Comstock. The Supreme Court had given little guidance on the question of what should be considered bannable as obscene. Lower courts had set aside official orders barring James Joyce’s Ulysses from the United States. But as late as 1948 eight justices of the Supreme Court divided equally and thus upheld the suppression of Edmund Wilson’s novel Memoirs of Hecate County, surely a work of literature. (Felix Frankfurter, to Wilson’s disgust, recused himself on grounds of acquaintance with the author.)

Brennan’s opinion in the Roth case said that obscene matter was not protected by the First Amendment. That left just one question: What was the proper definition of obscenity? And here Justice Brennan, having seemingly joined the book-banners, opened the way to a more liberal American culture. “Sex and obscenity are not synonymous,” he wrote. “Obscene material is material which deals with sex in a manner appealing to prurient interest.”

The constitutional test, Brennan concluded, was “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” That definition gave far less room for findings of obscene material than the formula traditionally used, derived from a Victorian British decision, Regina v. Hicklin. The Hicklin test called for a judgment of obscenity if (1) even a small part of a work might deprave and corrupt (2) the most susceptible readers, such as children. Both those factors were eliminated in the Brennan definition.

There were four dissenters from the Roth decision: Chief Justice Warren, a puritan on these issues, objected to Brennan’s narrowing of what could be considered obscene. Justice John Marshall Harlan similarly thought Brennan had gone too far toward liberation. Justices Black and Douglas held to their view that the First Amendment bars any limit on expression. (About Justice Harlan: in 1971, in Cohen v. California, he wrote the Court’s opinion reversing the conviction of Paul Cohen for disturbing the peace by wearing in a courthouse, during the Vietnam War, a jacket bearing the words “Fuck the Draft.” The result of the First Amendment, Harlan said, may seem to some “to be only verbal tumult, discord and even offensive utterance.” But they are “in truth necessary side effects of the broader enduring values [of open debate]…. That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.”)

In time Justice Brennan added another liberating element to the process of deciding whether something could be censored. Even if it failed the first test, he said, a work could escape banning if it had redeeming social importance. But the divisions on the Court in the Roth case foretold the long course of obscenity decisions in the ensuing years. Sometimes a fractured Court could not produce a majority opinion. Some cases were decided by a brief, unsigned per curiam judgment. To decide whether movies could be banned, the justices watched the contested film in a basement room—except Black and Douglas, who thought nothing could be censored—and then gave a thumbs up or down. It struck many as absurd that the Supreme Court should be acting as a national censorship board, and the Court eventually tired of it.

  1. 1

    Baker v. Carr, 369 U.S. 186 (1962). 

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