Justice Brennan: Legacy of a Champion

During the 1980s, when the Court’s approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices’ values and views, and bemoaned the public’s utter lack of attention to the Court and judicial appointments. President Ronald Reagan’s Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the “critical” yet “often overlooked” “values and philosophies” of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court’s vital role by describing Justices’ “powerful, if often unseen and rarely understood, impact on nearly every aspect of our lives.” Both were correct: because under our Constitution, “We, the People” govern, public appreciation of the actual influences on judicial decisionmaking should be seen as desirable, even if the Court’s popularity suffers when the public disagrees with it. The Reagan Administration and Professor Tribe diverged, predictably, on the desirable content of Justices’ values and philosophies, and both pointed to the example of Justice William J. Brennan, Jr. While Reagan officials singled out Justice Brennan as possessing precisely the wrong “values and philosophies” and targeted many of his “activist” decisions for overruling, Professor Tribe held him up as an exemplar of a “catalytic” Justice whose work on the Court greatly improved Americans’ lives. Around this time, Justice Brennan agreed to cooperate in the writing of his biography by Stephen Wermiel, to whom he gave extraordinary access during his final few years of service before his 1990 retirement. Wermiel later partnered with coauthor Seth Stern to complete the project, and in 2010, they published Justice Brennan: Liberal Champion, an engaging account of the life and work of one of the Court’s most influential, effective, and controversial Justices. Over those decades, the Court’s vital role in American life advanced from “often overlooked” and “rarely understood” to a frequent subject of news reports and popular cable comedy shows. For example, the Court’s ruling in Citizens United sparked a valuable nationwide conversation, from President Barack Obama’s State of the Union address, to “Occupy” demonstrations across the nation, to a running “joke” by comedian Stephen Colbert that included the formation of an active Super PAC and Colbert’s indirect candidacy in a state presidential primary. Although the public better appreciates the extent of the Court’s power, partisan battles fuel continued confusion about the proper role of Justices’ personal views and values.