William J. Brennan Jr.

Brennan was given a recess appointment as an associate justice of the United States Supreme Court by President Dwight D. Eisenhower on October 15, 1956,[11] shortly before the 1956 presidential election, and was sworn into office the following day.[1] The president's advisers thought the appointment of a Roman Catholic Democrat from the Northeast would woo critical voters in the upcoming re-election campaign for Eisenhower, a Republican.[12] Brennan was also strongly supported by Cardinal Francis Spellman.

Brennan gained the attention of Herbert Brownell, United States Attorney General and Eisenhower's chief legal affairs adviser, when Brennan had to give a speech at a conference (as a substitute for New Jersey Supreme Court Chief Justice Arthur Vanderbilt).[13] To Brownell, Brennan's speech seemed to suggest a marked conservatism, especially on criminal matters.[13]

His nomination, formally submitted to the Senate Judiciary Committee on January 14, 1957,[11] faced a small amount of controversy from two angles. The National Liberal League opposed the nomination of a Catholic, thinking he would rely on his religious beliefs rather than the Constitution when ruling,[12] and Senator Joseph McCarthy had read transcripts of Brennan's speech where he decried overzealous anti-Communist investigations as "witch-hunts." After a confirmation hearing in which Brennan defended himself against McCarthy's attacks and proclaimed that he would rule solely on the basis of the Constitution and not on Church law,[14] he was confirmed by a near-unanimous vote, with only Senator McCarthy voting against him.[15]

Other factors playing into Brennan's appointment were his status as a state court judge – no state judge had been appointed to the High Court since Benjamin N. Cardozo in 1932 – and Eisenhower's desire to appear bipartisan after his appointments of two Republicans: Earl Warren (former Governor of California) and John Marshall Harlan II.[16]

Brennan filled the seat vacated by Justice Sherman Minton. He held the post until his retirement on July 20, 1990, for health reasons; he was succeeded on the Court by Justice David Souter. He was the last federal judge in active service to have been appointed to his position by President Eisenhower.[lower-alpha 1] Brennan then taught at Georgetown University Law Center until 1994. With 1,360 opinions,[17] he is second only to William O. Douglas in number of opinions written while a Supreme Court justice.[18]

An outspoken liberal throughout his career, he played a leading role in the Warren Court's expansion of individual rights. Brennan played a behind-the-scenes role during the Warren Court, coaxing more conservative colleagues to join the Court's decisions. Brennan's opinions with respect to voting (Baker v. Carr), criminal proceedings (Malloy v. Hogan), the free speech and establishment clauses of the First Amendment (Roth v. United States), and civil rights (Green v. County School Board of New Kent County) were some of the most important opinions of the Warren Era. Brennan's role in expanding free speech rights under the First Amendment is particularly notable, as he wrote the Court's opinion in 1964's New York Times Co. v. Sullivan, which created constitutional restrictions on the law of libel. It was Brennan who coined the phrase "chilling effect", in 1965's Dombrowski v. Pfister. His close friendship with Chief Justice Warren, who frequently assigned Brennan the task of writing the majority opinion, led to the other justices nicknaming him the "deputy Chief".

In the 1962-1963 term, one of Brennan's law clerks was Richard A. Posner, who later became a founder of the field of Law and Economics and one of the most influential legal scholars in the United States.[19][20][21][22][23]

On the less liberal Burger Court, Brennan was a staunch opponent of the death penalty and a supporter of abortion rights and joined the majority in landmark rulings on both issues (Furman v. Georgia (1972) on the death penalty and Roe v. Wade (1973) on abortion). With the ascension of the most conservative member of the court, William Rehnquist, to the position of Chief Justice, and the replacement of Warren Burger and the moderate Lewis Powell with Antonin Scalia and Anthony Kennedy, Brennan found himself more frequently isolated. At times, his opinions would be joined only by Thurgood Marshall since, by 1975, they were the last remaining liberals of the Warren Court.[lower-alpha 2] That like-mindedness led to both Brennan and Marshall's clerks referring to them as “Justice Brennan-Marshall” in the face of the court's heavy conservative opposition to the two. Brennan declared in Furman that he believed the death penalty violated the Eighth Amendment's prohibition on “cruel and unusual” punishment, and for his remaining years on the bench, he and Marshall dissented from every case upholding the imposition of the death penalty. He was able to convince no other justice of this view, but Justice Harry Blackmun would eventually agree in 1994, after Brennan's retirement.

Brennan authored three Supreme Court opinions holding that a plaintiff has a cause of action for money damages (compensatory and punitive) arising solely out of an alleged violation of the Bill of Rights.[24][25][26][27] In Bivens v. Six Unknown Named Agents, Brennan so held with respect to the Unreasonable Search and Seizure clause of the Fourth Amendment.[28] In Davis v. Passman, Brennan extended this rationale to the equal protection component of the Due Process Clause of the Fifth Amendment, in a suit for gender discrimination in employment against a former Congressman (Congressional staffers were explicitly excluded from Title VII of the Civil Rights Act).[29] In Carlson v. Green, Brennan extended this rationale again to the Cruel and Unusual Punishment clause of the Eighth Amendment, in a suit by the estate of a deceased federal prisoner (even though the plaintiff also had a cause of action under the Federal Tort Claims Act).[30]

During the same period, Brennan began to adopt and promote a coherent and expansive vision of personal jurisdiction. He authored the sole dissent in Helicopteros Nacionales de Colombia, S. A. v. Hall, defining minimum contacts very broadly for the purposes of general jurisdiction, and influential dissents and partial concurrences in World-Wide Volkswagen Corp. v. Woodson and Asahi Metal Industry Co. v. Superior Court on the subject of specific jurisdiction, holding to a simple "stream-of-commerce" analysis for product liability cases and emphasizing the role of fairness in the Court's analysis of the holding in International Shoe Co. v. Washington. In Burger King v. Rudzewicz, Brennan authored the majority opinion and extended his broad view of personal jurisdiction to areas of business contracts and franchising. The upshot of Brennan's analysis is an expansion of the jurisdiction of state courts, particularly over corporations; state courts are typically more sympathetic to small, weak plaintiffs than to large, powerful corporate defendants. In this process, he frequently clashed with Justice Scalia over this issue, and uncharacteristically dissented from Justice Marshall's majority opinion on the subject in Shaffer v. Heitner.

In his penultimate and final terms on the Court, he wrote the controversial rulings for Texas v. Johnson and United States v. Eichman, respectively. In both cases, the Court held that the First Amendment protects desecration of the United States flag.

Brennan's wife Marjorie died in December 1982. Slightly more than three months later, in March 1983 at age 77, he married Mary Fowler,[31] who had served as his secretary for 26 years.[32] Brennan's colleagues learned of his second marriage via a short office memo stating, "Mary Fowler and I were married yesterday and we have gone to Bermuda."[33]

Brennan strongly believed in the Bill of Rights, arguing early on in his career that it should be applied to the states in addition to the federal government.[34] He often took positions in favor of individual rights against the state, favoring criminal defendants, minorities, the poor, and other underrepresented groups. Furthermore, he generally shied away from the absolutist liberal positions of Justices Hugo Black and William O. Douglas, being very amenable to compromise in order to win a majority of Justices.[35] Brennan's conservative detractors charged that he was a purveyor of judicial activism, accusing him of deciding outcomes before coming up with a legal rationale for them.[36] At his retirement, Brennan said the case he thought was most important was Goldberg v. Kelly, which ruled that a local, state or federal government could not terminate welfare payments to a person without a prior individual evidentiary hearing.[37]

In the 1980s, as the Reagan administration and the Rehnquist Court threatened to "roll back" the decisions of the Warren Court, Brennan became more vocal about his jurisprudential views. In a 1985 speech at Georgetown University, Brennan criticized Attorney General Edwin Meese's call for a "jurisprudence of original intention" as "arrogance cloaked as humility"[38] and advocated reading the U.S. Constitution to protect rights of "human dignity".

Brennan was also less interested in stare decisis or the avoidance of "absolutist" positions where the death penalty was concerned, as he believed that the deliberate taking of human life by the state, as a punishment, was inherently cruel and unusual. Brennan and Thurgood Marshall, Brennan's closest ally in the Court, concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled that the death penalty was constitutional four years later. Thereafter, Brennan or Marshall took turns, joined by the other, in issuing a dissent in every denial of certiorari in a capital case, and from every decision in a case which the Court did take which failed to vacate a sentence of death.[39]

Brennan also authored a dissent from the denial of certiorari in Glass v. Louisiana. In Glass, the Court chose not to hear a case that challenged the constitutionality of the use of the electric chair as a form of execution. Brennan wrote:[40]

Th[e] evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the "mere extinguishment of life". Witnesses routinely report that, when the switch is thrown, the condemned prisoner "cringes," "leaps," and "fights the straps with amazing strength." "The hands turn red, then white, and the cords of the neck stand out like steel bands." The prisoner's limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and "rest on [his] cheeks." The prisoner often defecates, urinates, and vomits blood and drool.

Brennan concluded by stating that electrocution is "nothing less than the contemporary technological equivalent of burning people at the stake." Brennan voted with the majority in Roe v. Wade which legalized abortion nationally and helped craft the decision.[41] Brennan wrote the majority opinion in Roth v. United States which set new standards for obscenity laws, allowing some prosecutions, but drastically loosening the laws overall.[42] He later reversed his position in dissent in Miller v. California arguing that obscenity laws were unconstitutional.[43] Although Brennan joined the majority in United States v. O'Brien which upheld the constitutionality of laws banning draft card burning, he later opposed the Vietnam War and dissented several times when the Supreme Court refused to hear challenges to its legality.[44] In a dissent in San Antonio Independent School District v. Rodriguez Brennan argued that unequal funding of poor and wealthy school districts violated the Equal Protection Clause.[45] Brennan supported gay rights. He joined the dissent in Bowers v. Hardwick, which allowed states to prosecute consensual homosexual sodomy.[46] In a dissent from a denial of certiorari in 1985 involving a lesbian teacher fired for her sexual orientation, Brennan publicly criticized homophobia, writing "Homosexuals have historically been the object of deep and sustained pernicious hostility, and it is fair to say that discrimination against homosexuals is likely to reflect deep-seated prejudice rather than rationality."[47] He is regarded as one of the most liberal justices in the history of the court.[48]