Path to the Supreme Court
The number that matters most about William Brennan is the one that did not change. He came to the Court in the autumn of 1956, when Earl Warren (§88) had been Chief Justice for three years, and he left it in the summer of 1990, when William Rehnquist (§100) had been Chief Justice for four. Across those thirty-four years the Supreme Court Database can score his vote in 5,087 cases, and in his first dozen terms he took the liberal side 71.3 percent of the time; in his last dozen he took it 73.2 percent of the time. The difference is inside the noise. What moved was everything around him. The bench he sat on voted liberal 59.5 percent of the time in his first dozen terms and 47.1 percent in his last, a fall of twelve points that the site scores as real. He began his service eleven points to the left of his colleagues and ended it twenty-six points to the left of them, and he had not gone anywhere. The book this chapter continues took his measure in 1967 and stopped: 'At this writing, Justice Brennan has served on the Court only eleven years. It is still too early in his career to attempt a final assessment of Brennan's contribution to the work of the Court.' Twenty-three more years followed, most of the opinions for which he is remembered were still unwritten, and the Court that had carried him became the Court he argued with. This chapter is about a man who stood still while the ground moved, and about what he did with the ground.
William Joseph Brennan Jr. was born on April 25, 1906, in a house on New Street in Newark, the second of eight children. His parents had both come from County Roscommon and had not met until Newark. His father, born outside the village of Frenchpark in 1872, had crossed in 1892 and found work stoking the furnaces at the Ballantine brewery; he became business agent of Local 55 of the stationary firemen's union, and when Newark adopted a commission government in 1917 he ran for city commissioner against eighty-five other candidates and came in third. He was re-elected three times, the last time in 1929 with a record vote, served every term as director of public safety with the police and fire departments under him, and died in office in May 1930, at fifty-seven. The son went through Barringer High School and the Wharton School at Pennsylvania, took his degree in 1928, married Marjorie Leonard while still an undergraduate, and went on to Harvard Law School on a scholarship, where Felix Frankfurter (§78) was on the faculty. He took his law degree in 1931, the year after his father's death, was admitted to the New Jersey bar in 1932, and joined a Newark firm where his specialty became labor relations.
In July 1942, at thirty-six, he volunteered for the Army and spent the war on the staff of the Under Secretary of War, doing legal work for the ordnance program; he came out in 1945 a full colonel with the Legion of Merit and went back to the firm. New Jersey was then rebuilding its courts under the constitution of 1947, and Arthur Vanderbilt, the new Chief Justice, wanted him on the bench. Governor Alfred Driscoll appointed him to the new Superior Court in 1949, the Appellate Division took him the next year, and in 1952 he went to the Supreme Court of New Jersey, where Vanderbilt was remaking the state's procedure and Brennan, by Oyez's account, was known for the reforms rather than for the opinions. He was fifty in 1956. That September Sherman Minton (§87) announced that he would retire, and Dwight Eisenhower, with an election weeks away, told Attorney General Herbert Brownell what he wanted. Stephen Wermiel, who went through the record in 1995, set out the list: a Democrat, because the President had said so in his first conversation about the vacancy; a Catholic, to keep a promise to Cardinal Spellman, so that the White House had a parish priest asked whether the judge went to Mass; a man under sixty-two; a judge with court experience; and a judge from a state court, because the Conference of Chief Justices was pressing the administration to take the state bench seriously. Vanderbilt endorsed him, Brownell reported well of him, and on September 29, 1956, after a second meeting at the White House that afternoon, the announcement was made and the pictures were taken.
Minton's retirement took effect on October 15 and the recess appointment was made the same day; Brennan took the oath on October 16, three weeks before the election, and sat. The nomination went to the Senate on January 14, 1957, and the hearing in February gave him one adversary. Joseph McCarthy told the Judiciary Committee that 'I believe that Justice Brennan has demonstrated an underlying hostility to congressional attempts to expose the Communist conspiracy,' and that he would want to know whether the nominee had called the investigations 'Salem witch hunts' and 'inquisitions' in his speeches. Brennan answered that 'Not only do I approve, Senator, but personally I cannot think of a more vital function of the Congress than the investigatory function of its committees,' and declined, case by case, to say how he would vote on anything pending. A statement filed with the committee had asked whether a Catholic could sit at all, and Senator O'Mahoney put the question to him; he said he had taken the judicial oath 'just as unreservedly as I know you did,' and that 'what shall control me is the oath that I took to support the Constitution and laws of the United States.' The Senate confirmed him by voice vote on March 19, 1957. The Bar of the Court, at his memorial forty-one years later, recorded that 'In later years, Brennan was proud that the only Senate vote against his confirmation was cast by Senator McCarthy.' The other line every account carries, that Eisenhower called his two appointments to the Court his two worst mistakes, has a different standing. Wermiel went looking for it and reported that 'It is probable, if not certain, that Eisenhower never spoke these precise words, even in private conversation about Chief Justice Warren and Justice Brennan, although they have been attributed to him thousands of times. The Eisenhower Library has searched for these words and has never found them.' The judge who had been chosen for being a Democrat, a Catholic and a state judge under sixty-two turned out to be other things as well.
On the Supreme Court
His first big opinion came in his first term. In Roth v. United States (1957) he wrote for the Court that 'All ideas having even the slightest redeeming social importance' have 'the full protection of the guaranties,' and that obscenity was outside them only because it was 'utterly without redeeming social importance,' a test that turned on 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' It was the first of a career's worth of doctrines built on the principle that the government must show, before it punishes, that what it is punishing lies outside the protected ground. By 1962 William Shannon, writing in the Catholic University Law Review's issue on his first five years, had already seen the shape of it. 'His approach to every case is practical, specific, factual. Unlike Black or Frankfurter, he rarely lays down sweeping dicta.' It was a mistake, Shannon wrote, to assign him casually to a liberal bloc with Hugo Black (§76), William O. Douglas (§79) and the Chief Justice: 'While he more often than not arrives at their conclusion, he only infrequently gets there by their lines of reasoning.' The Friedman and Israel chapter, written in 1967, put the same point: 'It is in this area, the relation between procedural safeguards and the attributes of individual liberty, that Justice Brennan has made a unique contribution to the work of the Court.'
The opinions of the first decade are the ones the country knows. Baker v. Carr (1962) asked whether a federal court could hear a challenge to Tennessee's apportionment at all, and Frankfurter had spent a career saying no. Brennan wrote for six that it could, that 'The nonjusticiability of a political question is primarily a function of the separation of powers,' set out the six marks of a real one, and held that 'Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.' Frankfurter dissented in the last opinion he wrote; Charles Whittaker (§91), who had heard the case argued twice, did not participate, and the line that says so ends the report. Two years later, in New York Times Co. v. Sullivan (1964), he wrote for a unanimous Court that the case had to be seen '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,' and that a public official could not recover for a falsehood about his official conduct 'unless he proves that the statement was made with "actual malice"', which the opinion defined as acting 'with knowledge that it was false or with reckless disregard of whether it was false or not.' Of the Sedition Act of 1798, never tested in the Court, he wrote that 'the attack upon its validity has carried the day in the court of history.' In between came Sherbert v. Verner (1963), which held that a state could not make a Seventh-day Adventist 'choose between following the precepts of her religion and forfeiting benefits,' a burden on free exercise the same 'as would a fine imposed against appellant for her Saturday worship.' In Keyishian v. Board of Regents (1967) he struck New York's loyalty apparatus for its teachers: academic freedom 'is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,' since 'The classroom is peculiarly the "marketplace of ideas,"' and 'Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.' In Shapiro v. Thompson (1969) he ended the one-year residency requirement for welfare, because 'the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.' Those were the Warren years.
Then the Court changed under him and he kept writing. Goldberg v. Kelly (1970), decided in Warren Burger's (§97) first term, held that New York could not cut off a recipient's welfare without a hearing first, and its argument is the closest thing he wrote to a creed: 'From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders,' and public assistance 'is not mere charity.' The line the law schools remember is in a footnote: 'It may be realistic today to regard welfare entitlements as more like "property" than a "gratuity."' In Eisenstadt v. Baird (1972) he carried the privacy of Griswold past the married couple: 'If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' In Furman v. Georgia (1972), concurring, he concluded that 'the deliberate extinguishment of human life by the State is uniquely degrading to human dignity,' and in Gregg v. Georgia (1976), dissenting when the Court let the penalty back, he named 'The fatal constitutional infirmity in the punishment of death' as the fact that it treats 'members of the human race as nonhumans, as objects to be toyed with and discarded'; he and Thurgood Marshall (§96) held the position for the rest of his tenure, and toward the end, as the Washington Post's obituary put it, 'they were alone in opposition to capital punishment as cruel and unusual punishment.' In Frontiero v. Richardson (1973) he wrote that the law's old treatment of women 'was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage,' and that sex, 'like race and national origin, is an immutable characteristic determined solely by the accident of birth'; he had four votes for strict scrutiny and not five. Three years later, in Craig v. Boren (1976), he had seven for something else, that 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives,' the standard the law has used since. Wermiel, who watched the method for years, put it plainly: 'in that one, uncharacteristically, he failed initially. He didn't get a fifth vote,' and then 'came back three years later and invented a new kind of significant way of the court examining gender discrimination.' Seth Stern, his co-author, said the secret 'wasn't his affability or his political skills but his ability to accommodate concerns and his willingness to take half a loaf now and try to build upon that later.' In Plyler v. Doe (1982), for five, he held that Texas could not shut its schools to the children of illegal entrants, because the law 'imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.'
The sentence attributed to him more often than any other, that with five votes you can do anything, is a clerks' recollection, printed in his last years on the Court and repeated everywhere since; it is on no page of his own, and it is reported here as the telling. What is on the record is the distance between his votes and his opinions, in the other sense of the word. Nina Totenberg interviewed him at length in the 1980s, and Wermiel did for years for the biography; in 2010, when the biography appeared, she put both on the air. On abortion, whose principles he had helped Harry Blackmun (§98) assemble, as he told Wermiel: 'Independently, as a private person and not required to make a decision, I would never have agreed that abortion is proper.' On the obscenity he had spent thirty years protecting, that he would never have it in his house. On the death penalty, that the constitutional position sometimes pained him; and then, on the tape, 'That bastard ought to hang.' And when Wermiel pressed him, in interview after interview, on how a Catholic could keep his faith out of his judging, he would get angry: 'my oath is to uphold the Constitution. I don't have an oath of allegiance to my church.' It was the answer he had given O'Mahoney in 1957, thirty years on and unchanged.
The Supreme Court Database gives the career its shape. Across 5,260 cases, 5,087 of them coded, his liberal share was 71.2 percent against a docket baseline of 52.9, a gap of eighteen points; by liberal share alone he ranks sixth of the thirty-three justices on the site's modern scale, and by the gap to his own docket he ranks third. He was twenty-eight points above his colleagues in criminal procedure, twenty-five above in civil rights and twenty-seven above in the First Amendment cases; he dissented in 21.2 percent of cases against colleagues who dissented at 18.3 on the same ones. His closest colleague across divided cases was Marshall, at 88.1 percent agreement over 2,213 of them; his furthest was Rehnquist, at 23.3 percent over 1,857. The drift series is the one this program has asked of every subject, who moved, and here the answer is exact. His own share went from 71.3 in the early terms to 73.2 in the late ones, a shift of 1.9 points that the site does not score as real. The bench's share went from 59.5 to 47.1, a shift of 12.4 points that it does. The gap therefore widened from 11.8 to 26.2, a drift of 14.3 points, fourth largest of the twenty-seven justices with tenures long enough to measure, and every point of it belongs to the Court. He stood still, and the Court walked away from him.
In the last years the argument came out into the open. On July 9, 1985, Attorney General Edwin Meese told the American Bar Association that constitutional jurisprudence 'should be a Jurisprudence of Original Intention.' On October 12 Brennan answered, at a Georgetown symposium on text and teaching. The doctrinaire version of original intent, he said, 'is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility.' Then: 'We current justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time?' The Constitution, he said, was 'a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law.' Four years later he said the same thing in a dissent. In Michael H. v. Gerald D. (1989), where Antonin Scalia (§103) had written the plurality, Brennan answered: 'The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past.' Six days later, on June 21, 1989, Scalia and Anthony Kennedy (§104) joined him, and he wrote for five in Texas v. Johnson that a state could not punish a man for burning the flag: 'If there is a bedrock principle underlying 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,' and 'We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.' It was the last of the great ones, and two of the five were Reagan's appointees.
He had had cancer of the throat in 1978 and a small stroke in 1979 that took the use of his right hand for a time. Marjorie died of cancer in 1982, and the Bar's resolution says his energy failed then and only then; it came back in 1983 when, 'after wryly obtaining his daughter Nancy's consent, he married Mary Fowler, his secretary of twenty-six years.' In the first weeks of July 1990 he fell at the Newark airport, struck his head, and had another small stroke. On Friday, July 20, a letter went to the White House at twenty minutes to eight in the evening and reached President Bush by fax aboard Air Force One: the 'Strenuous demands of court work and its related duties required or expected of a justice appear at this time to be incompatible with my advancing age and medical condition.' The statement he released said what he wanted said: 'It is my hope that the court, during my years of service, has built a legacy of interpreting federal laws to make them responsive to the needs of the people whom they were intended to benefit and protect.' He was eighty-four. On Monday the President named David Souter (§105) to the seat and paid the tribute due: 'His powerful intellect, his winning personality and, importantly, his commitment to civil discourse on emotional issues that, at times, tempt uncivil voices have made him one of the greatest figures of our age.' On September 6 the eight wrote to him: 'You served here for nearly thirty-four years,' which was 'a period exceeded by only four other members of the Court. But your profound influence upon American constitutional law arises not merely from the length of your service, but from the many notable opinions which you authored during that time'; and 'The personal warmth which you radiate has enriched all of our lives.' He answered on the 25th that 'The opportunity to have served on this Court has, of course, been a rare privilege, but equally rare has been the chance to form so many rich friendships in the course of that work.' On the first Monday in October Rehnquist told the courtroom that 'today, for the first time in 34 years, a Term of the Court commences without our colleague Justice William J. Brennan sitting beside us on the bench.'
He lived seven more years. President Clinton gave him the Medal of Freedom in 1993; the Hudson County courthouse already carried his name, and in 1995 the Brennan Center for Justice was endowed in it. His ninetieth birthday was celebrated in the courtroom itself, and the Bar's resolution records that his last public statement, made there to his colleagues, family and friends, 'was a plea to continue fighting against the death penalty.' He broke a hip in November 1996 and was still recovering from it when he died on July 24, 1997, in a nursing home in Arlington, at ninety-one. The funeral was at St. Matthew's Cathedral on July 29; the President spoke, and said that 'He loved his country fiercely. He gave himself to it fully.' He was buried at Arlington National Cemetery, in Section 5. The Court sat in special session for him on May 22, 1998, and the Bar's resolution counted the work: 'Justice Brennan authored 1,573 opinions: 533 opinions for the Court, 694 dissents, and 346 concurrences.' Rehnquist, who had agreed with him less often than anyone on the Court, closed the session with the sentence that fits him better than the legend does: 'His career exemplifies the happy truth that a judge need not be a prima donna to have a lasting influence on our country's laws. He will have a high place in the annals of this Court and in its jurisprudence.' The numbers are the epitaph. Five hundred and thirty-three times the Court came to where he stood, and six hundred and ninety-four times he wrote down how far it was from him; and across thirty-four years, by every measure the record allows, the distance was the Court's doing, not his.
The Voting Record
How Brennan voted in the 5,260 cases the Supreme Court Database records from the 1956 term through the 1989 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Brennan voted with T. Marshall more than with anyone else — the same side of the judgment in 88.1% of their 2,213 divided cases — and with Rehnquist least, at 23.3%. See the matrices →Compared against the 18 colleagues Brennan shared at least 300 divided cases with.
And Brennan ended 14.3 points more liberal relative to those colleagues than at the start — the fourth-largest shift of the 27 justices with a long enough record to measure. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
New York Times Co. v. Sullivan
1964Holding · A public official cannot recover for defamation without proving 'actual malice' — knowledge of falsity or reckless disregard for the truth.
Role · Brennan wrote for the Court.
Transformed American libel law and gave constitutional protection to robust, even erroneous, criticism of government — 'uninhibited, robust, and wide-open.'
Read the opinion →Baker v. Carr
1962Holding · The apportionment of legislative districts presents a justiciable question that federal courts may decide.
Role · Brennan wrote for the Court, over Frankfurter's (§78) dissent.
Opened the door to the reapportionment revolution and 'one person, one vote'; Warren (§88) called it the most important case of his tenure.
Read the opinion →Texas v. Johnson
1989Holding · Burning the American flag in political protest is expressive conduct protected by the First Amendment.
Role · Brennan wrote for the Court.
A powerful affirmation that government may not punish a symbol's desecration; it has withstood repeated efforts to overturn it by constitutional amendment.
Read the opinion →Go Deeper
William Joseph Brennan Jr. is the liberal engine of the modern Court — the justice who, more than any other, translated the Warren Court's vision into durable doctrine and held a coalition together to do it. The son of Irish immigrants in Newark, a New Jersey judge given a recess appointment by Dwight Eisenhower in 1956 in a bid for Catholic and Democratic votes, he served thirty-four years and wrote 1,573 opinions by the Court's own count at his memorial, 533 of them for the Court, becoming the great strategist and vote-counter of the liberal bloc; the line attributed to him, that with five votes you can do anything, is a clerks' recollection and not on any page of his own. He wrote New York Times v. Sullivan, revolutionizing the law of libel and free press; Baker v. Carr, opening the door to 'one person, one vote'; and landmark opinions on due process, gender equality, and the death penalty. A champion of the 'living Constitution' against the rising originalism, the remark attributed to Eisenhower, that he was one of two mistakes sitting on the Court, has never been found in Eisenhower's own words, as Stephen Wermiel established in 1995. Seth Stern and Stephen Wermiel's authorized biography is the definitive life. Start there, read Sullivan and Baker, and hear Brennan's own case for a Constitution read anew by each generation.
The Bookshelf
The definitive biography, drawing on decades of interviews Wermiel conducted with Brennan himself and on the justice's private case histories. Stern and Wermiel give the full measure of the man and the strategist — the Newark boyhood, the New Jersey bench, the surprise appointment, and the thirty-four years in which Brennan built and held the coalitions behind the Warren Court's boldest work and defended its legacy through the Burger and Rehnquist years. Candid about his methods and his blind spots, it is the essential and revealing life. Houghton Mifflin Harcourt.
The first full biography, written before the papers opened — Eisler is good on Brennan the vote-counter and coalition-builder, the Irish-Catholic New Jersey judge who became the liberal engine of two Courts. Superseded in depth by Stern and Wermiel but a brisk narrative. Simon & Schuster.
A portrait organized around the quality that made Brennan effective — the warmth and patience with which he built majorities, 'with five votes you can do anything.' Birch Lane Press.
The leading book-length treatment of Brennan's constitutional and democratic theory — the Harvard theorist Frank Michelman on Brennan's vision of a 'living' Constitution read anew by each generation, and its answer to the charge of judicial overreach. Princeton University Press.
A short biographical study paired with generous selections from Brennan's major opinions — a convenient one-volume way to meet both the man and the work. Carroll & Graf.
A Brennan Center collection of essays by judges, scholars, and advocates assessing his influence across the whole span of constitutional law — the fullest measure of his reach, taken just after his retirement. W. W. Norton.
Brennan's credo, delivered as a 1985 address at Georgetown and the most influential judicial answer to the originalism then ascendant under Attorney General Edwin Meese. The Constitution, Brennan argued, must be read as 'a sublime oration on the dignity of man,' its great phrases interpreted by each generation 'as twentieth-century Americans' — not frozen at the framers' intent, which he called 'little more than arrogance cloaked as humility.' Short and eloquent, it is the essential statement of the living-Constitution philosophy and the frame for every Brennan opinion. Widely reprinted.
Brennan's most celebrated opinion, and the foundation of modern First Amendment protection for the press. Arising from a civil-rights advertisement in the Times, the case let Alabama officials use libel law to punish criticism and cripple the movement's Northern support. Brennan held that the Constitution requires a public official to prove 'actual malice' — knowing or reckless falsehood — to win a libel suit, out of a 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' It remade defamation law and shielded the press and its critics ever since. Free online, and essential.
The case Earl Warren (§88) called the most important of his tenure, and the opening of the reapportionment revolution. Holding that federal courts could hear challenges to malapportioned legislatures — that such claims were not 'political questions' beyond judicial reach — Brennan overcame Frankfurter's (§78) long insistence that the Court stay out of the 'political thicket,' and cleared the way for Reynolds v. Sims and 'one person, one vote.' A masterpiece of coalition-building as much as doctrine, it transformed representative democracy. Free online.
Brennan's quiet landmark. Writing for the Court, he held that a state may not cut off a person's welfare benefits without a hearing first — that statutory entitlements are a kind of 'new property' the Due Process Clause protects. The founding case of the procedural-due-process revolution, and a signature of Brennan's concern for the powerless. Free online.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The papers themselves: 379,000 items in 1,088 containers, the case files of opinion and administrative files from his service on the Court, dockets from 1956 to 1975, and correspondence with Black, Douglas, Goldberg, Marshall and Warren. The finding aid's own summary says the opinion files 'reflect Brennan's championship of the rights of the indigent and his opposition to the death penalty.' Free at the Library of Congress as a PDF.
Irons's pairing of the two, published four years after Brennan left the bench, as the poles of the modern Court: the Library of Congress catalogs it under both men, constitutional law and 'political questions and judicial power.' Knopf, xiv, 380 pages with notes and index. Borrow it free at the Internet Archive; not read for this shelf beyond the catalog record.
The first decade in his own words, opinions and speeches from 1956 to 1966 selected by Stephen J. Friedman for Atheneum in 1967: xv and 384 pages, the reader for the Warren Court's engine before Baker v. Carr and Sullivan were history. Borrow it at the Internet Archive; not read for this shelf beyond the record, and Friedman as editor is Collins's rather than the record's.
Brennan's fifty-year defence of his own most famous opinion, told by the First Amendment lawyer Lee Levine and Stephen Wermiel, who had the Brennan papers and interviewed him: the line of defamation and speech cases descending from New York Times v. Sullivan and the internal bargaining that shaped them. American Bar Association, 2014, 473 pages. Wermiel's Liberal Champion with Seth Stern is the life; this is the doctrine Brennan cared most about, followed to the end.
The appointment from the Eisenhower papers, by the biographer who had the Brennan ones: the criteria the President gave Brownell (a Democrat, a Catholic, a state judge, under sixty-two), the parish priest asked whether the judge went to Mass, the two White House meetings of September 29, 1956, and the finding on the line everyone repeats, that 'It is probable, if not certain, that Eisenhower never spoke these precise words' and that 'The Eisenhower Library has searched for these words and has never found them.' Free at American University's repository.
The checklist for everything Brennan wrote and everything written about him through 1981, in sections: his articles, his pamphlets, his speeches, and the appraisals of him. It is the carrier through which most of the Friedman and Israel leads on this shelf were confirmed, and the place to start for any of his own writing not listed here. Free at Seton Hall's repository.
The five-year appraisal, by the head of the New York Post's Washington bureau, in the issue the Catholic University Law Review gave to Brennan's first five terms: 'His approach to every case is practical, specific, factual. Unlike Black or Frankfurter, he rarely lays down sweeping dicta,' and a warning against assigning him casually to a liberal bloc with Black, Douglas and Warren, since 'While he more often than not arrives at their conclusion, he only infrequently gets there by their lines of reasoning.' Listed by Friedman and Israel. Free at Catholic's repository.
The companion piece in the same issue: a survey of his first five years' record on the Bill of Rights, criminal procedure, the First Amendment and the loyalty-security cases. The issue opens with Daniel M. Berman's two-page introduction, 'Mr. Justice Brennan After Five Years,' and closes with checklists of his opinions and speeches to 1961, the second of which is the source for the dates of his early lectures. Free at Catholic's repository.
The Cardinal O'Hara Lecture at Notre Dame, April 21, 1965, printed in the August number: Brennan on why constitutional cases are not ordinary disputes but contests between individual right and public power, to be decided by applying enduring principles to present conditions, with procedural fairness and human dignity as the tests. The theory of the Warren Court's engine, stated in the middle of the run. Listed by Friedman and Israel (as the Notre Dame Law Review, the journal's later name). Free at Notre Dame's repository.
The James Madison Lecture at New York University, February 15, 1961, printed in the April number at pages 761 to 778: the first of his two Madison Lectures at New York University, on the subject its title names; the second, in 1986, was 'The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,' 61 N.Y.U. L. Rev. 535. Listed by Friedman and Israel. No free copy found online; not read.
Brennan's own account, a year after New York Times v. Sullivan and by Lee Bollinger's reading of it, of Alexander Meiklejohn's theory that the First Amendment protects the speech self-government needs, and of how far the Court's decisions had taken it up; twenty pages, the first article of the volume. Listed by Friedman and Israel. No free copy found online; not read.
Brennan's address to the Conference of Chief Justices in New York on August 7, 1964, by Robert Post's account of it, aimed at the state judges unsettled by the reapportionment and habeas decisions and setting out how he saw the relation of state and federal authority. Listed by Friedman and Israel. No free copy found online; not read.
The tributes that opened the November 1966 number on his tenth anniversary, at pages 1 to 22: the Chief Justice's 'Mr. Justice Brennan,' Lord Parker of Waddington's 'William Brennan,' Griswold's 'William J. Brennan, Jr., Legal Humanist,' and Friedman's 'Mr. Justice Brennan: The First Decade,' the last by Stephen J. Friedman, the editor of An Affair with Freedom. Listed by Friedman and Israel. No free copy found online; not read.
The speech at the Bureau's fiftieth-anniversary banquet, printed as a Harvard Law School pamphlet. Listed by Friedman and Israel as the Address on the Fiftieth Anniversary of the Harvard Legal Aid Bureau. No copy found online; not read.
A profile in the law school's alumni magazine in the month of his tenth anniversary, cited by Friedman and Israel as 18 Harvard Law School Bulletin 4 (1966). The Bulletin's issues before 1999 are digitised but restricted to Harvard users. The author's first name is not on any carrier reached. No copy found online; not read.
The last item in the Friedman and Israel bibliography, and the only one after the chapter was written: a 1968 piece in the bar's own journal. Robins prints the title with its definite article; Friedman and Israel without. No copy found online; not read.
The Court's own record of the retirement: Rehnquist from the bench on the first Monday of October 1990, that 'for the first time in 34 years, a Term of the Court commences without our colleague Justice William J. Brennan sitting beside us on the bench'; the eight Justices' letter of September 6, with its 'period exceeded by only four other members of the Court'; and Brennan's reply of September 25, that the service had been 'a rare privilege, but equally rare has been the chance to form so many rich friendships in the course of that work.' Free at govinfo.
The Court's own record of the May 22, 1998 memorial, and the fullest short life of him in print: the Bar's resolution runs from the father stoking the Ballantine furnaces to the ninetieth birthday in the courtroom, counts the work ('Justice Brennan authored 1,573 opinions: 533 opinions for the Court, 694 dissents, and 346 concurrences'), and records that 'In later years, Brennan was proud that the only Senate vote against his confirmation was cast by Senator McCarthy'; Rehnquist closes with 'a judge need not be a prima donna to have a lasting influence on our country's laws.' Free at govinfo.
The confirmation hearing, with Senator McCarthy's statement that 'I believe that Justice Brennan has demonstrated an underlying hostility to congressional attempts to expose the Communist conspiracy,' Brennan's answer that 'I cannot think of a more vital function of the Congress than the investigatory function of its committees,' and, on whether a Catholic could sit, that 'what shall control me is the oath that I took to support the Constitution and laws of the United States.' Only an excerpt is online, at Princeton; the full print was not read.
The Reading Path
A researched route through the literature — in order.
- 1.Stern & Wermiel, Justice Brennan — for the strategist behind the Warren Court's revolution
- 2.New York Times v. Sullivan — for 'uninhibited, robust, and wide-open' — the free-press landmark
- 3.Baker v. Carr — for opening the reapportionment revolution
- 4.Contemporary Ratification — for the living-Constitution creed in his own words
- 5.Michelman, Brennan and Democracy — for the constitutional theory behind the votes
Where the Papers Are Kept
The William J. Brennan Jr. papers at the Library of Congress are enormous and unusually candid — including the case histories Brennan kept and shared with his biographer Stephen Wermiel — and are among the richest sources on the internal workings of the Court from the Warren through the Rehnquist years. A major modern archive. Visit →
Ideas for Further Research
- The rule of five. The line attributed to Brennan, that with five votes you can do anything, is a clerks' recollection rather than anything he wrote, but it has become a candid credo of the Court as a place where outcomes are built, not merely found. Study his coalition-building across the Warren, Burger, and Rehnquist Courts, and ask what his method reveals about how the Supreme Court actually decides: how much is doctrine, and how much is the patient assembly of a majority.
- Sullivan and the price of a free press. New York Times v. Sullivan gave American journalism protection unmatched anywhere in the world — and is now attacked from the right and questioned by some justices who would revisit it. Trace the 'actual malice' rule from 1964 to the present debate, and ask whether the robust, error-tolerant public discourse Brennan protected is a permanent achievement or an increasingly contested one.
- Living Constitution vs. originalism. Brennan's Contemporary Ratification was the great counterstatement to the originalism of Meese, Scalia, and the movement that would come to dominate the Court. Lay out the debate at its most serious, using Brennan and his opponents in their own words, and ask what is genuinely at stake — about democracy, judicial power, and change — in how a constitution's meaning is fixed. Seat lineage: Minton §87 → Brennan → David Souter §105.