Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel

Justice Brennan. Liberal Champion

Justice Brennan: Liberal Champion is an impressive, lengthy, comprehensive, conventional biography of a major historical figure. It is competently written without being particularly elegant or memorable in style. It is not written in a phony, pseudo-objective style where liberals and conservatives must be presented equally favorably or unfavorably regardless of reality, but nor is it overly opinionated, where the William Brennan story is just an opening for the authors to advocate for their own agenda.

On the whole, the authors are on the same side as Brennan in terms of his general liberal worldview, and pretty clearly they like and respect Brennan personally. The book is of the “authorized biography” genre, where the subject cooperated with the authors, and the authors had access to plenty of inside material from the subject and some of the important people in his life.

Yet it’s far from hagiographic. What I got from the book, in fact, is that Brennan was moderately intelligent but no great scholar, that his judicial opinions were routinely mediocre or worse in terms of their logical cogency and consistency, that there was some degree of hypocrisy in his own life relative to his judicial decisions (mostly in terms of his reluctance to hire women as law clerks), and that his usual savvy and personableness that allowed him to influence other justices sometimes failed him when he had an opportunity to secure a more progressive outcome in a case.

Not a bad guy or a historical non-entity certainly, but not exactly a larger-than-life figure either.

Following up on the point about the quality of Brennan’s judicial opinions, I should note that the flaws are generally not presented as stemming from a lack of brains or other personal limitation or flaw, but instead from the institutional fact that a Supreme Court opinion must be written so as to satisfy a sufficient number of justices to sign onto it as their own. Brennan, it seems, was more skilled at writing opinions to appeal to his brethren like that—and more willing to do so even when it meant compromising logic—than most justices. Hence, he was more effective than most justices.

It’s like the cliché about something having been “designed by a committee.” A Supreme Court justice’s written opinion is not analogous to some political philosopher writing a journal article and trying to reason his way to the truth. Instead we might see Brennan using only three of four necessary premises to support a conclusion because one of the justices he’s trying to keep in the majority might not go along with the other premise, or keeping something vague that really needs to be spelled out because if he were to be clearer about it one or more justices would find something to object to, or basing the decision on certain cases that one of the justices is convinced are the key to the case even though in reality they are irrelevant to the approach Brennan is taking.

The result is that Brennan’s career includes numerous decisions and parts of decisions that law professors wince at or laugh at, but the bottom line is he got the result he wanted in those cases.

Being a proud non-pragmatist myself, I suppose I’d have even more respect for a justice who stuck strictly to arguing as cogently as he could from true premises to true conclusions, but certainly one can make a case for doing it Brennan’s way.

The book has its share of gossipy material about the justices—who liked whom, who was particularly friendly toward incoming justices and sought to “work” them, who was an asshole, etc.

Brennan, by the way, was infuriated when material of that type appeared in the press or in a book while he was on the Court, detesting The Brethren, for instance.

I don’t know that The Brethren got all that much wrong though. It overlaps quite a bit with what’s said about certain justices in this book in fact. For example, from what I recall of The Brethren, its portraits of Chief Justice Warren Burger and Thurgood Marshall are consistent with what we read here.

Evidently Burger was an intellectually dishonest, arrogant buffoon. Brennan preferred, and had more respect for, even justices farther to the right, like later Chief Justice William Rehnquist.

Marshall’s is a sad case in its way. The authors make the point that at least Brennan had a few years on the Court when it was issuing liberal decisions and he could be a leader. For most of his years on the Court he was instead fighting a rearguard battle, trying to mitigate the damage the conservatives were doing to the country, but those early successes, the authors contend, gave him the strength to carry on through the lean years.

But Marshall, they say, was dispirited for much of his time on the Court, and less often willing to expend a lot of effort to fight the good fight. In his way he had been far more effective in shaping the law as a civil rights attorney. Joining the Supreme Court turned out to be a step down as he spent the rest of his life casting meaningless vote after meaningless vote. Because he was on the Court rather than another conservative, the liberal side might lose 6-3 instead of 7-2 on a given case, or 5-4 instead of 6-3, but they lost regardless.

Evidently Brennan was far more energetic and resourceful in the minority—and therefore occasionally effective—than Marshall.

Justice Brennan: Liberal Champion isn’t a book that blew me away by any means, but clearly it’s of considerable value for anyone wanting to be more informed about William Brennan and about the workings of the Supreme Court.

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