Believing in the Goodness of People

Transcription

1 Believing in the Goodness of People JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel. Houghton Mifflin Harcourt Pp. 688, $ Larry Kramer * Judicial biography is a punishing genre. Anyone brave or foolish enough to venture on to this territory starts with a big disadvantage, namely, that it s exceedingly difficult to make what judges do seem exciting. 1 That judicial biographies make unlikely page-turners is hardly a surprise. The substance of a judicial life at least of judges whose work on the bench merits serious biography is inevitably dominated by the cases the judge decided. Yet even the hardiest, most avid consumer of law will begin to nod sleepily if asked to spend hours on end reading about lawsuits. Unfortunately, Seth Stern and Stephen Wermiel were unable to surmount the inherent limitations of the genre in their biography of Justice William J. Brennan. I don t mean this as harshly as it may sound. After all, Stern and Wermiel had to work with some serious constraints, including that Justice Brennan s life before he went on the bench wasn t particularly interesting, that the Justice involved himself in almost nothing off-the-bench, and most problematic for the authors that Brennan was extremely withholding and reserved in and about his personal life. Stern and Wermiel note this last quality at numerous points in the book, 2 but it bears underscoring. Bill Brennan was a delightfully friendly and gregarious person. No one who met him disliked him, no matter how much they might have disagreed with his views. He was effusively warm, and people came away from conversations feeling as if they had a new, caring friend. It was only later that one realized the extent to which the Justice s effusiveness was itself a form of reserve, a wall behind which he hid, and that he had revealed little about himself or his own feelings. * Richard E. Lang Professor and Dean, Stanford Law School. I had the privilege of serving as a law clerk to Justice Brennan during the October Term, TV networks have learned this lesson the hard way. ABC and CBS launched dramas about the Supreme Court that quickly failed for, well, lack of drama; NBC sought to sidestep the trap by having its main character resign from the Supreme Court, but its show is failing too. Nor is the problem with these shows lack of star power. Sally Fields starred in ABC s The Court, while Joe Mantegna headed the cast of CBS s First Monday. Jimmy Smits stars in NBC s Outlaw, which is still on the air but not likely to last much longer. 2. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 30, 105, (2010).

2 1404 Texas Law Review [Vol. 89:1403 Stern and Wermiel s biography suffers as well from the fact that it took twenty-five years to complete. A quarter century is too long to gather and sit on material, particularly if the material is voluminous on the public side and thin on the private one. From the authors perspective, the resulting biography may seem like an extreme distillation. To a reader, however, 547 pages 452 of which consist chiefly of descriptions of how cases were decided is too much, even when written with the clean, light touch Stern and Wermiel brought to the project. Stern and Wermiel do not write only about cases, of course, and one does learn interesting facts along the way. Some of these such as the Justice s discomfort with women clerks, 3 his scandalous treatment of Mike Tigar, 4 and his personal opposition to abortion 5 have been written about elsewhere but will be new to readers learning about Justice Brennan for the first time. Other facts are interesting in light of what has happened since Justice Brennan died. Given the makeup of today s Supreme Court, for example, it is remarkable to read that when Justice Brennan was appointed, he was the Court s only member with prior judicial experience. 6 Equally striking is the realization that Brennan played the crucial role he did during the Warren Court s heyday, not because he had Svengali-like powers to manipulate others, and not because he possessed a Madisonian genius at coalition-building, but because he was the Court s swing vote: less liberal than Douglas, Black, Warren, or Goldberg/Fortas/Marshall; less conservative than Clark, Frankfurter, Harlan, Stewart, or White. 7 It speaks volumes about the Supreme Court s political drift since the departure of Earl Warren to note that the Court s center has shifted from Brennan to Powell to O Connor to Kennedy. Seen in that light, the notion that the current Court has a liberal wing seems downright silly. There is, to be sure, a wing of the Court that is less conservative than the Court s other wing. But to call that wing liberal in the Warren Court tradition is ludicrous. (In saying this, I take no position on whether it is good or bad to have a liberal wing. I want only to note that the one we have now is, if anything, more conservative than the conservative wing of the Warren Court.) But facts and description are not enough to carry this biography, if only because we already know so much about the Supreme Courts on which Justice Brennan sat. What was needed, and what is missing from this biography, is an effort to grapple with the real puzzle of Justice Brennan s legacy, to wit: How did this ordinary man become such an extraordinary judge? 3. Id. at Id. at Id. at Id. at See, e.g., id. at 254 (describing Justice Brennan s moderate position on obscenity law).

3 2011] Believing in the Goodness of People 1405 To call William Brennan an ordinary man is no insult. I mean only that there was nothing remarkable about his upbringing or achievements before ascending to the Supreme Court. He was a capable law student, but no more; a good lawyer, but no more; a competent state court judge, but no more. He did not have an especially powerful intellect and was not a dazzling legal analyst. Certainly many of his colleagues on the bench were more impressive intellectually. One cannot say that, as a lawyer or an intellectual, Justice Brennan surpassed the likes of Black, Douglas, Frankfurter, Harlan, Rehnquist, Scalia, Stevens, or White. Yet he did surpass them as a judge. The extent of Brennan s impact was brought home to me during a debate I participated in not long after the Justice died. Sponsored by the New York City lawyers chapter of the Federalist Society, the debate was entitled Justice Brennan: Hero or Villain? There were no other choices it seems just hero or villain and the point was to evaluate Justice Brennan s legacy. The attitude of the audience toward Brennan was remarkable. For as much as they reviled the Justice (and they did), they also respected him. Under his guidance, they said, the Supreme Court remade American society. The changes may have been bad ones, they thought, but audience members were almost in awe at how the Justice had managed to do it. They seemed really to believe, at least so they said, that we live in a society practically ruled by judges and that Justice Brennan deserves most of the credit (or blame). Claims like this are obviously exaggerated. Courts have never managed to produce more than marginal changes in society unless and until they were aided or guided by the legislative and executive branches. But to say that the Supreme Court has never been a principal mover in effecting significant social change is not to say that it has been unimportant. The members of this audience were convinced that Justice Brennan led whatever changes the Supreme Court had managed to make. They saw him as an enormously effective judge, and that is a verdict with which I wholeheartedly concur. How, then, did he do it? How did this unexceptional lawyer become one of the twentieth century s most exceptional judges? Justice Brennan s influence is usually ascribed to his ability to assemble coalitions, a theme that also pervades Stern and Wermiel s account. 8 And Brennan was indeed a coalition builder though building a coalition mostly meant putting into opinions anything to get that fifth vote, no matter how inconsistent or at odds with the rest of the analysis, leaving the Court to sort out whatever mess was created in later cases. The Justice was, in this sense, a successful 8. Id. at (describing Chief Justice Warren s choice of Justice Brennan to author the opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), as influenced by the fact that Warren... knew that Brennan could build and hold on to a majority a unanimous one if possible in a way that he or other justices could not ); id. at 545 ( Brennan was extraordinarily successful in building coalitions even if that sometimes meant sacrificing clarity in the process by accommodating his fellow justices concerns. ).

4 1406 Texas Law Review [Vol. 89:1403 accommodationist with the patience to let his positions unfold slowly, and his ability to mold the Court s doctrine over time using this strategy was indeed remarkable. But that still doesn t really answer the question, because something had to make Brennan s fellow Justices willing to be part of his coalitions in the first place. Something had to make them amenable to following Brennan s lead by joining opinions at the low cost of an added footnote or sentence or two of text. No one can say for sure what made Brennan s leadership attractive to his strong-willed, independent colleagues, but I believe he succeeded because of who he was as a person. I am thinking of one quality in particular. Justice Brennan was, so far as I observed, someone who did not hate: someone without anger, without malice, without bitterness. He is the only person I have ever met about whom I would say this. The rest of us have things that make us spiteful and small. And whether we like it or not, whether we admit it or not, those things play a part in molding our judgments, often without our conscious awareness. This simply was not true of Justice Brennan. Spite simply was not in him or part of him. Yes, he sometimes acted as if he were angry, as if he disliked someone or hated something. But his heart was never really in it. The good will that everyone who met him experienced was always there, peeking through. It was as if, in expressing anger, Justice Brennan was going through the motions, trying to act like the rest of us. But a grin and self-conscious laugh were invariably just beneath the surface. This is a slightly different point from one that is often made about Justice Brennan: that he was a charming man. He was most definitely charming. But his charm came partly from the quality I am describing, which was inborn. Justice Brennan had a genuine, almost automatic, empathy for everyone and everything. This was my impression, at least, from the peculiar, and peculiarly close, vantage afforded a law clerk. (I should add, as well, that I worked for Justice Brennan during the dark days, or what we thought of as the dark days: when the Justice had long ceased winning very often, when we were producing two to three times as many dissents as opinions for the Court, when we talked about defensive denials of certiorari and could call the clerk s office to tell them to run the usual dissent in capital cases because we were running it so often.) What made Justice Brennan an extraordinary judge, in my view, was how this unique personal quality guided and became part of his judging. Justice Brennan believed in the goodness of people. He believed in the dignity of each individual and in the capacity of each person to be better. He believed these things not in some abstract philosophical or intellectual sense, but naturally and instinctively. He confronted evil, of course, and he saw people do terrible things. His opposition to racism and the death penalty was heartfelt. But the way he responded to these wrongs was motivated less by anger at the perpetrators than by a belief that they could learn, could change, could be better. The Justice understood that people make mistakes and

5 2011] Believing in the Goodness of People 1407 commit evil acts. He understood that people are often less than their best selves. He understood that institutions made up of people acting in complete good faith could still do bad things. But his decisions and his judgments reflected a deep and abiding faith in the possibility of progress. He believed that the Constitution could incite and inspire us to be better and to do better. A great many complex issues need to be sorted out before such ideas can be turned into a jurisprudence, and I don t know that Justice Brennan ever did so. There are questions to answer about the role of judges and precedent, about separation of powers and democracy, about translating concepts over time, and about fidelity to text and to history. But fundamentally, it was this absence of ill-will, this simple quality of believing in the goodness of people, that lay at the heart of Justice Brennan s judging and that I believe constituted the fundamental motivating force behind his choices. There was a sure courage in Justice Brennan s willingness to push boundaries, a sense of rightness and absence of doubt that grew from his faith in people. And it was this faith, I think, that made his efforts and leadership attractive, even to colleagues troubled by gaps or weaknesses in the intellectual underpinnings. Justice Brennan s work may or may not stand. We may one day find that everything he did or tried to do has been rejected, his major decisions all repudiated or abandoned. Yet even then, I suspect, he will still be remembered as one of the great Justices of the Supreme Court, if only for the humanity of his opinions and his judicial career. History has a curious way of remembering well those who like Justice Brennan act on the basis of faith that we could be better rather than fear that we could be worse. It is why, given a choice, most of us would rather be Jefferson than Adams, rather be Madison than Hamilton, rather be Lincoln than just about anyone else. It is why most of us would rather be Louis Brandeis or Earl Warren than Oliver Wendell Holmes or Felix Frankfurter. History does not forget the cynics, but it favors men and women like Justice Brennan and for good reason. As a person, and so as a judge and a public figure, William J. Brennan inspired those who had contact with him whether personally or through his opinions to strive to do and be better. It was his most special quality and the one I know I remember him for.