The Power of William Brennan

By Michael S. Serrill

Ever since Chief Justice Earl Warren retired from the U.S. Supreme Court 16 years ago, American conservatives have been waiting for wholesale reversals of the Warren era's liberal precedents. But despite six Republican presidential appointees to the high bench since then, the turnaround has not materialized. One of the most powerful forces holding back the conservative tide has been a small, slightly rumpled, elderly gentleman with a ready smile and a legendary gift for gab, William J. Brennan Jr. Court observers agree that the liberal Justice, even in the supposed exile of dissent, has emerged as the master strategist of the Burger court.

Accepting that his views no longer easily prevail, he has devoted himself instead to reining in the new court. "He does it by a very agile mind, a fluid pen and tireless work," says Stanford Law Professor Gerald Gunther. The term just ended was a particularly satisfying one for Brennan, highlighted by his authorship of two decisions that strongly reasserted the constitutional separation of church and state. Brennan has spent nearly 29 years on the high bench fighting to uphold such principles, and he has some formidable weapons at his command.

Soon after his appointment by Dwight Eisenhower, he began earning a reputation as "the best coalition builder ever to sit on the Supreme Court," says L.A. Scot Powe Jr., a University of Texas law professor and former clerk to Justice William O. Douglas. Brennan has never relinquished the role. A dedicated pragmatist, the onetime New Jersey labor lawyer now uses his negotiating skills to bring the shifting middle of the court--Harry Blackmun, Lewis Powell and Byron White--closer to the liberal corner that he shares with Thurgood Marshall and often John Paul Stevens. A hesitating colleague is likely to be asked, "Would you be happier if the standard were phrased this way?" If, as often happens, he is seeking Powell's fifth vote, recalls a former court staffer, he will "have the clerk working on the opinion keep in touch with Powell's clerk" to make sure the emerging reasoning is acceptable to his colleague.--Brennan will even sacrifice some of his own views if necessary. Says University of Michigan Law Professor Yale Kamisar: "He doesn't want to be 100% principled and lose by one vote."

When he cannot cobble together a majority, Brennan tries other tactics. He will cajole the conservative opinion writer with memos--called letters at the court in an effort to limit the damage to a liberal precedent. Sometimes he will get on the phone to put his case personally. The Justice's long tenure and encyclopedic knowledge of past decisions help to make him more persuasive. His intellectual pressure, say many court insiders, has meant that some opinions that start out broadly conservative end up stating a more limited principle.

Brennan plays these constitutional power games with an institutional advantage. At the court's regular Friday conference, as senior Justice, he addresses his colleagues concerning cases immediately after Chief Justice Warren Burger. Burger's presentations are said to be brief and sketchy, Brennan's long, detailed and thoughtful. "The conference may disagree," says one former clerk, "but it is in terms Brennan established." Further, when he is in the majority and the chief is not, his senior status gives him the right to name the author of the court's opinion. Rather than taking all important decisions for himself, Brennan frequently and diplomatically selects a Justice who occupies the middle ground.

To some court watchers, Brennan's latter-day accomplishments outshine his early years and will mark him in history as one of the high bench's great dissenters. While a member of the Warren court majority, he was guilty of writing some "slapdash" opinions, says Stanford's Gunther. "To my taste Brennan has been a hell of a lot better since he's had to articulate his views in dissent." In those opinions he generally answers the majority point by point and lays out a narrow interpretation of the ruling, which can be helpful to those who later challenge it. Justice Sandra Day O'Connor caught him at it in a case earlier this year and wrote with annoyance in a foot note, "Justice Brennan not only distorts the reasoning and holding of our decision but, worse, invites trial courts and prosecutors to do the same."

An intangible but hardly unimportant source of Brennan's power is his personal charisma. "He is universally respected, loved is not too strong a word," says a former clerk. Brennan is revered in part because of his reverence for the institution he serves. Columbia Law School Professor Gerard Lynch, a former Brennan clerk, says that he remains as delighted as ever by the fact that "ordinary people consider the Supreme Court the last bastion of justice and fairness."

Brennan's advanced age (he will be 80 next April) has not tempered that enthusiasm. In the late '70s he suffered visibly while his first wife was losing a struggle with cancer. But he has been renewed by his 1983 marriage to his longtime secretary. In a May speech, reacting to reports that his seat might soon be vacant, he said with a twinkle, "I can't know, of course, what the good Lord may have in mind for me. But I can say that insofar as the suggestions contemplate my voluntary departure, like Mark Twain's reported death, the rumor is grossly exaggerated." After restoring himself on a European tour this summer, which included a stop in England last week to help rededicate the Magna Carta, Brennan expects to be back in his regular seat at the court on the first Monday in October, ready for new battles with his conservative adversaries. --By Michael S. Serrill. Reported by Anne Constable/Washington and Raji Samghabadi/New York

With reporting by Reported by Anne Constable/Washington, Raji Samghabadi/New York