Difference Maker William Brennan, Part II

Justice Brennan made a major impact on the nation during his 34 years on the Supreme Court.

This morning I finished Seth Stern and Stephen Wermiel’s engaging biography of liberal champion William Brennan and felt a little sad when it ended.

I powered through the remaining 200 pages last night and earlier today, reading the authors’ description of Brennan’s efforts to hold back the increasingly conservative tide and direction of the nation’s highest court he served on for more than a third of a century.

Stern and Wermiel write about the discomfort the publication of Scott Armstrong and Bob Woodward’s The Brethren caused Brennan, who prided himself on maintaining positive relations with his colleagues and was mortified to read some of the derogatory statements he had made about then-Chief Justice Warren Burger published for the world to read.

This part of the book also covered Brennan’s unfailing care of his beloved first wife Marjorie, even as he continued not to confront her alcoholism, the marriage he found in his surprising marriage to Mary Fowler, his secretary of 27 years, and his own physical and mental decline.

Beyond the discussion of Brennan’s personal life, the latter part of the book also contains a lengthy discussion of his failings and partial growth in his professional conception of, and dealings with, women, his often strident and acidic dissents that had the effect at times of repelling his colleagues and his tendency to assign key writing assignments to himself rather than to other justices like Thurgood Marshall, who appeared at moments to resent Brennan’s choices.

The tension with Marshall beneath the surface admiration and professional harmony the two men held toward each other is another notable aspect of the book’s ending part.  While he admired Marshall no end as a litigator, Brennan found his lack of consistent focus disappointing as a justice.

These imperfections in many ways serve to illustrate Brennan’s enormous impact on the country, both through the nature of the decisions he helped cobble together after extensive and delicate negotiations as well as his vision of the Constitution as a living document that needs to be viewed in light of the present.

The book’s final pages assesses the justice’s legacy, and shows Brennan, in a rare moment, shedding his unassuming demeanor to talk frankly about the changes he and other on the bench had wrought during the heyday of the Warren Court.

They were substantial, and, he hoped, unlikely to be permanently reversed.  Specifically, the rulings around voter access, defendants’ rights and a woman’s right to choose have, thus far at least, been borne out.   Brennan also is seen toward the end of the book as fomenting a similar kind of judicial activism at the state level when he recognized that his odds of success were continuing to dwindle as the court’s composition became more and more opposed to his judicial and social philosophy.

This moment of candor is a fitting summary because it shows Brennan’s intention and understanding of what he helped bring to the country.    The authors note with what one perceives is just a tad of wistfulness that Sonia Sotomayor in her confirmation hearing sought explicitly to distance herself from the type of judging that was Brennan’s trademark.

Be that as it may, Brennan was, as Stern and Wermiel write, the right man at the right moment to make a major impact on the nation through his actions and efforts during the 34 years he walked inside the chambers of the nation’s highest court.

Whether one agrees or disagrees fervently, as many do, with the substance and constitutional vision inherent in his decisions, one must acknowledge that he used his time on the planet to great effect.

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