Justice William J. Brennan, Jr. (1906-1997) – Guest Essayist: Daniel A. Cotter

Justice William J. Brennan, Jr. (1906-1997): An Associate Justice Who Led the Court and Which is Often Referred to as The Brennan Court

On July 20, 1990, Associate Justice William J. Brennan, Jr. resigned from the Supreme Court of the United States, after serving nearly 34 years (including three months with a recess appointment and two months while his nomination was confirmed).  Only five justices served longer on the Supreme Court and only one justice wrote more opinions.  Brennan was an election year appointment by President Dwight Eisenhower.

Early Life and Career

Brennan was born in Newark, New Jersey on April 5, 1906 to William and Agnes Brennan, both Irish immigrants.  He was the second of eight children.  Brennan’s father was a metal polisher who eventually rose to become Commissioner of Public Safety of Newark.  Brennan was raised a Catholic, attended public high school, and graduated from the University of Pennsylvania Wharton School of Business, with a B.S., cum laude, in economics.  Brennan married his wife at the age of 21 and then attended Harvard Law School, where he obtained an LLB degree in 1931.

Upon graduation from law school, Brennan practiced law in Newark at Pitney Hardin (later named Day Pitney), where he had worked as a summer clerk.  (His father, who died young, had “used his connections to land his oldest son a summer clerkship” at the firm, according to biographers Seth Stern and Stephen Wermeil in their book, Justice Brennan: Liberal Champion.)  Brennan’s first year at Pitney was as a clerk, as New Jersey required a year of apprenticeship before a law school graduate could take the bar exam.  Brennan practiced labor law at Pitney and eventually built a successful practice at the firm.

In 1942, Brennan enlisted in the United States Army as a Major, eventually rising to the rank of Colonel.  Brennan performed legal work for the Army during World War II, earning the Legion of Merit Award.  In early 1946, Brennan served as a staff member of the United States Undersecretary of War.  Later that year, Brennan returned to Pitney and continued his practice for the next three years.  His partners added his name to the firm shortly after his return.

On January 4, 1949, New Jersey Governor Alfred Driscoll appointed Brennan to be a judge for the Superior Court of New Jersey.  Despite the financial sacrifices involved in leaving the practice of law, Brennan was attracted to serving on the bench and to helping build a new court system in New Jersey.  On January 27, 1949, Brennan was sworn in.  Brennan was well respected by fellow judges and lawyers, and in August 1950 was promoted to serve as one of six Superior Court Appellate Division judges.  Brennan served in that role until February 7, 1952, when he was appointed to serve on the newly formed New Jersey Supreme Court.

Becoming a Justice

On September 28, 1956, Brennan received a call from Attorney General Herbert Brownell.  Brennan thought the call related to him serving on a committee for which he had previously served and was therefore curt with Brownell.  When Brennan arrived in Washington, D.C., Brownell informed Brennan that President Eisenhower wanted to discuss the vacancy on the Supreme Court created by the retirement of Justice Sherman Minton.  On October 15, 1956, Eisenhower made a recess appointment of Brennan to the Supreme Court in an election year and Brennan was sworn in as the 90th Justice on October 16, 1956.  Eisenhower, a Republican, appointed Brennan, a Democrat, in part to appeal to Democratic voters and to show balance in appointments.   Eisenhower expected Brennan to be a conservative justice based on his decisions on the New Jersey Supreme Court, but was to be surprised by the nature of Brennan’s decisions on the Supreme Court.

Eisenhower formally nominated Brennan on January 14, 1957, when the Senate returned from recess.  On March 19, 1957, Brennan was confirmed with only Senator Joseph McCarthy voting no.  Brennan served on the court for nearly 34 years, spanning eight presidents and three chief justices.  He authored an amazing 1,360 opinions during his tenure (nearly 40 opinions per term served), seldom dissenting, and his liberal views and belief that the Constitution was an evolving document would make him a pivotal member of the Warren Court.  Some constitutional scholars have referred to the Supreme Court during his early years as the Brennan Court, given his leadership and his arguments for expansion of individual rights.  He was an extremely influential member of the Supreme Court during his tenure.  At the dedication of the Brennan Center for Justice at New York University School of Law, Chicagoan and D.C. Circuit Judge Abner Mikva coined the term “Brennanist,” defined as “one who influences his colleagues beyond measure.”  Brennan’s major opinions are too numerous to list, but include Cooper v. Aaron (federal judicial supremacy), New York Times Co. v. Sullivan (First Amendment rights regarding criticism of public officials), Baker v. Carr (reapportionment), and Roth v. U.S. (obscenity). When President Clinton awarded Brennan the Presidential Medal of Freedom in 1993, he stated that Brennan had influenced a generation of young lawyers, including Clinton.

Conclusion

When vacancies occur on the Supreme Court, many cite to the “mistake” made by Eisenhower in selecting Brennan, an activist justice whose views did not square with Eisenhower’s conservatism.  However, his successful tenure on the Court and ability to act as a conciliator and leader on the Court are his rich legacy.  Brennan is considered one of the most influential justices of the 20th century.  Only a very few  associate justices have their names attached to the period of their tenure—Brennan’s impact was so profound that historians still refer to the late 50’s and 60’s as the years of the “Brennan Court” and many dubbed him the “Deputy Chief.”  According to www.historynet.com, William Brennan is one of the nine greatest justices who have served on the Supreme Court; the site groups Brennan with Justices Oliver Wendell Holmes, Jr. and Louis Brandeis as the “Three Unyielding Contrarians.”

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.

One Response to “Justice William J. Brennan, Jr. (1906-1997) – Guest Essayist: Daniel A. Cotter”

  1. Publius Senex Dassault says:

    Thank you for the essay.

    Pivotal, influential, profound impact on a whole; probably two generations. Yes indeed; Eisenhower made a mistake.

    PSD

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