William J. Brennan Jr.

The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.

William Joseph Brennan Jr. (April 25, 1906 – July 24, 1997) was an Associate Justice of the Supreme Court of the United States from 1956 to 1990.

Quotes

The school has not been content to rest on memories of a Golden Age—an age of giants, now legendary. After 150 years, I sense no lessening of vitality. Indeed, I am confident that the school’s great days are still before it.

Our Nation has had a long and unfortunate history of sex discrimination, rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage.

1950s

• Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.
  • Writing for the court, Roth v. United States, 354 U.S. 476 (1957).

1960s

• 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.
  • Writing for the court, New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

• Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, supra at 364 U. S. 487. The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250, we said:
  
  "The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."
  • Writing for the court, Keyishian v. Board of Regents, 385 U.S. 589 (1967), at 603.

1970s

• "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child."
  • Writing for the court, Eisenstadt v. Baird, 405 U.S. 438 (1972).

• Our Nation has had a long and unfortunate history of sex discrimination, rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage.
  • Writing for the court, Frontiero v. Richardson, 411 U.S. 677 (1973).

• More fundamentally, however, the answer to petitioners' objection is that there can be no impairment of executive power, whether on the state or federal level, where actions pursuant to that power are impermissible under the Constitution. Where there is no power, there can be no impairment of power.
  • Writing for the court, Elrod v. Burns, 427 U.S. 347, 353 (1976).

1980s

• 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.
  • Speech to the Text and Teaching Symposium at Georgetown University (October 12, 1985).

• "The framers discerned fundamental principles.... But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. We current justices read the Constitution in the only way that we can: as 20th-century Americans... The ultimate question must be, what do the words of the text mean in our time? For 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. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time.
  • Speech to the Text and Teaching Symposium at Georgetown University (October 12, 1985).

• No doubt, there are those who believe that judges-and particularly dissenting judges-write to hear themselves say, as it were, I I I. And no doubt, there are also those who believe that judges are, like Joan Didion, primarily engaged in the writing of fiction. I cannot agree with either of those propositions.
  • In Defense of Dissents, 37 Hastings L. J. 427, 428 (1985-1986).

• The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.
  • Dissenting, McCleskey v. Kemp, 481 U.S. 279 (1987).

• If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
  • Texas vs. Johnson, 491 US 397 (1989)

1990s

• Yet the ultimate problem is more fundamental. I have long believed that the death penalty is in all circumstances a barbaric and inhuman punishment that violates our Constitution. Even the most vile murderer does not release the state from its constitutional obligation to respect human dignity, for the state does not honor the victim by emulating the murderer who took his life. The fatal infirmity of capital punishment is that it treats members of the human race as non-humans, as objects to be toyed with and discarded.
  • Writing in Reason and Passion: Justice Brennan's Enduring Influence (1997).

• The machinery chugs on unabated, belching out its dehumanizing product. It is distressing. But I refuse to despair. I know, one day, the Supreme Court will outlaw the death penalty. Permanently.
  • Writing in Reason and Passion: Justice Brennan's Enduring Influence (1997).

• If our free society is to endure, and I know it will, those who govern must recognize that the Framers of the Constitution limited their power in order to preserve human dignity and the air of freedom which is our proudest heritage.
  • Writing in Reason and Passion: Justice Brennan's Enduring Influence (1997).

Quotes about Brennan

About the only thing that can be said of William Brennan without starting an argument is that he was a truly beloved justice, adored by his clerks and those of rival justices. He was a man of unfailing politeness and consideration. In the years I have covered law for a variety of publications, it was never unusual to dial Brennan's chambers and have the justice himself answer the phone. Occasionally reporters were so surprised to hear the rough voice of the boss, when they were actually seeking one of his clerks, that Brennan was sent to fetch a clerk. He never seemed to mind. ~ Kim Isaac Eisler

• But to those who resented the heavy hand of the court, Brennan's evolving standards seemed alarmingly subjective- the Warren Court was bending over backward to show its compassion for minorities of all stripes. The plaintiff in the case, the parent of a public school student named Ellery Schempp, was a Unitarian Universalist, a denomination that draws inspiration from many religions but does not share all the precepts of Christianity. His case was combined with one brought by a family of atheists whose matriarch, Madalyn Murray O'Hair, founded an activist group dedicated to removing religion from every corner of public life. It grated many churchgoing Americans to see this grandstanding woman claiming victory over the much larger God-fearing majority: What about their rights?
  Trenton newspapers carried stories on the backlash, as religious activists tried to whip up support for a constitutional amendment to overturn the Supreme Court decision and allow school prayer. Years later, Rose Alito could barely hide her disdain for the Court's decision, and how it trimmed her sails. "I was teaching then, and it used to irk me," she said. "I read poems that had something to do with the atmosphere and trees when we were not permitted to read the Bible."
  • Peter S. Canellos, Revenge for the Sixties: Samuel Alito and the Triumph of the Conservative Legal Movement (2026), New York: Simon & Schuster first hardcover edition, p. 18

• No one on the Court could ever quite recall having seen an operator like Brennan. Frankfurter had tried, of course. but he was clumsy and ham-handed. It had always been assumed that Warren as a former governor of California was a great in-court politician. But Warren, unfortunately, didn't have the legal mechanics that a career lawyer and judge like Brennan could employ. Warren could find a result and attempt to persuade others that it was fair, but when it came to putting an opinion down on paper, he often had no idea what to say.
  • Kim Isaac Eisler, A Justice For All: William J. Brennan, Jr., and the Decisions That Transformed America (1993), New York: Simon & Schuster, hardcover, p. 234-235

• It had taken nearly a lifetime for William Joseph Brennan, Jr., to become a folk hero. His credo had been to provide human dignity to every man, woman, and child on the planet. After his retirement, Brennan received word that a young couple had named their new daughter Brennan in his honor. He immediately wrote them a congratulatory note: "I hope you will devote yourself to expanding the civil rights of all people. This is the fervent wish of your namesake."
  • Kim Isaac Eisler, A Justice For All (1993), New York: Simon & Schuster, hardcover, p. 281-282

• About the only thing that can be said of William Brennan without starting an argument is that he was a truly beloved justice, adored by his clerks and those of rival justices. He was a man of unfailing politeness and consideration. In the years I have covered law for a variety of publications, it was never unusual to dial Brennan's chambers and have the justice himself answer the phone. Occasionally reporters were so surprised to hear the rough voice of the boss, when they were actually seeking one of his clerks, that Brennan was sent to fetch a clerk. He never seemed to mind.
  • Kim Isaac Eisler, A Justice For All (1993), New York: Simon & Schuster, hardcover, p. 289

• Brennan helped expand civil rights and liberties for all Americans. He supported abortion rights, opposed the death penalty, and provided new protections for freedom of the press. For example, in New York Times v. Sullivan (1964), Brennan established the "actual malice" standard, in which news outlets were protected from charges of libel as long as what they wrote was not deliberately false.
  • Jill Silos-Rooney, "The 7 Most Liberal Supreme Court Justices in American History", ThoughtCo, 30 June 2019

• The reaction from Harvard Law School was decidedly cool 54 years ago when President Eisenhower appointed its alumnus William J. Brennan Jr. ’31 to serve on the Supreme Court. Few were more surprised by the choice of this little-known New Jersey judge than his law school classmate Professor Paul Freund ’31 S.J.D. ’32 and the man who had taught them both: Justice Felix Frankfurter LL.B. 1906.
  Embarrassed to have been quoted by the Harvard Law Record predicting Brennan would become a “great justice,” Freund privately wrote Frankfurter, “I can only hope that my spurious prediction will turn out to be one of those self-fulfilling prophecies.” Frankfurter harbored his own misgivings about Brennan, who was not among the favorite students he had invited to join his seminars and Sunday teas or later funneled to New Deal agencies after his friend, Franklin D. Roosevelt, became president.
  • Seth Stern, "Marshaling Brennan", Harvard Law Today, 1 January 2011

• The tepid reactions from Freund and Frankfurter ushered in what proved to be a rocky first decade in the relationship between Harvard Law School and its seventh alumnus to join the nation’s highest court. Things went well at first, particularly when Brennan opted to follow Frankfurter’s advice and enlist Freund as his sole supplier of law clerks. Frankfurter could conceive of no other source. “If you want to get good groceries in Washington, you go to Magruders,” Frankfurter once explained. “If you wanted to get a lot of first-class lawyers, you went to the Harvard Law School.” But Frankfurter grew increasingly disenchanted with his former pupil’s direction as Brennan aligned with the bloc of liberals.
  • Seth Stern, "Marshaling Brennan", Harvard Law Today, 1 January 2011

• Brennan had never viewed the school with Frankfurter’s reverence. He enjoyed recounting the story of his first appearance in a New Jersey courtroom as a young lawyer, when the judge presiding over the case mocked him for using words a witness could not understand. “You see, he’s a Harvard graduate and he doesn’t speak English,” the judge said. But Brennan could not forgive his alma mater when he was passed over for a seat on the school’s Visiting Committee in 1963 in favor of his colleague John M. Harlan. Dean Erwin Griswold ’28 S.J.D. ’29 later said no slight was intended; the school simply wanted to fill the Visiting Committee with men of “varied backgrounds.”
  Brennan did not see it that way. He never said anything about his hurt feelings to Griswold or anyone else on Harvard Law’s faculty, but he shared his disappointment with his clerks. “It was a case of Harvard picking its ideological heir rather than one of its own sons,” said Stephen J. Friedman ’62, who clerked for Brennan during the October 1963 term.
  Brennan later told the book’s co-author, Stephen Wermiel, that there was no connection to the perceived slight, but in April 1965 he informed Professor Freund that, after nine years, his role—and Harvard’s monopoly—in supplying law clerks was coming to an end.
  • Seth Stern, "Marshaling Brennan", Harvard Law News, 1 January 2011

• By April 1966, word of Brennan’s disaffection had reached Griswold, who extended an invitation to join the Visiting Committee. Griswold also approached Professor Frank Michelman ‘60, the first clerk of Brennan’s to join the Harvard Law faculty, looking for a way to honor the justice, and then settled on the idea of commissioning a portrait, which was unveiled during a weekend-long celebration in 1967.
  A few months later, Brennan returned to campus as a featured speaker at the school’s 150th anniversary celebration. “The school has not been content to rest on memories of a Golden Age—an age of giants, now legendary,” Brennan said. “After 150 years, I sense no lessening of vitality. Indeed, I am confident that the school’s great days are still before it.”
  • Seth Stern, "Marshaling Brennan", Harvard Law Today, 1 January 2011

• I’m struck by Brennan’s enduring relevance 20 years after his retirement. After President Obama took office, liberals invoked Brennan as just the sort of passionate and persuasive justice they want on the Court. Law students, who were toddlers when he retired, post messages on Twitter holding him up as their hero. But it’s also true that progressive legal scholars have become increasingly uneasy with Brennan’s vision of a “living Constitution.” Liberals are still groping for an alternative that resonates with the public as well as the brand of judicial restraint so effectively marketed to the public by conservatives.
  • Seth Stern, "Marshaling Brennan", Harvard Law Today, 1 January 2011

• Justices William Brennan and Thurgood Marshall were the last of the Court's liberals.
  • Howard Zinn, A People’s History of the United States