The Justice Breaks His Silence

Sitting Across from him in the chambers he still has at the Supreme Court, it is difficult at first to realize that this short, decidedly informal man with so playful a wit was the most powerful and influential Supreme Court Justice in the history of the nation.

William J. Brennan, Jr., is entirely without pretentiousness. The ordinary city councilman takes himself more seriously than Brennan does. But the Justice--who retired on July 20 of last year after nearly 34 years on the Court--always took his job very seriously. He has described that job as requiring him to protect the dignity of each human being and to recognize that "every individual has fundamental rights that Government cannot deny him."

Accordingly, his many landmark decisions on behalf of the individual against the Government led New York University law professor Norman Dorsen to say that "we would be living under a very different Constitution if Justice Brennan were not on the Supreme Court."

Brennan greatly expanded and deepened First Amendment rights for the press, for teachers, for students, for book publishers, for moviemakers and for civil rights organizations. More than any other Justice from the 18th Century on, he successfully broadened the rights of criminal defendants. No jurist, for example, has taken more seriously the Fourth Amendment's prohibition of illegal search and seizure by the police.

Brennan was an insistent leader on the Court in strengthening civil rights laws, including affirmative action, and no Justice--including Sandra Day O'Connor--more successfully ensured women equal protection under the law. Symbolically, he was the first Justice to often interchange pronouns in an opinion. Even if a case involved only males, he would use "she" in parts of his writing. "Why should males," he explained, "be the only illustrious participants in whatever events we're talking about?"

Brennan was also responsible for the reapportionment of every state legislative system in the country, thereby ending the power of rural legislators to allot fewer votes to big cities than to their own less-populated areas. A devout Catholic who goes to Mass every Saturday, he was unyielding in defending Thomas Jefferson's wall between church and state, a position that drew protests from bishops in his own Church and from many other denominations. Furthermore, Brennan was a formidably consistent supporter of a woman's right to an abortion.

He suffered defeats through the years and most regrets his inability to get a majority of the Court to abolish the death penalty. Capital punishment, he insists, is a violation of the Eighth Amendment's declaration that "cruel and unusual punishment" is unconstitutional. Says Brennan, "Even the vilest criminal remains a human being possessed of common human dignity."

Even during his last years on the Court, when he was in the minority among conservatives, Brennan won a number of decisions--such as the ruling that deemed flag-burning protected by the First Amendment--because he was so persuasive, so deeply knowledgeable about the Constitution and so nonconfrontational. He was liked as well as respected by everyone on the Court.

I have never known anyone who loved his work more. A couple of years ago, we were walking out of the Supreme Court building, Brennan holding me by the elbow, and he looked around the marble hall and said, "It's just incredible being here--I mean the opportunity to be a participant in decisions that have such enormous impact on our society!"

When he suddenly retired last year because of the effects of a stroke, I wondered if he would ever recover--not from the stroke so much as from leaving the Court. "This is the saddest day of my life," he told a friend of mine.

When I talked with Brennan, it was clear that his was not going to be a passive retirement. He was considering offers from law schools to teach, and, indeed, later, with his doctors' approval, he accepted an invitation from New York University Law School to spend time in residence over the next four years.

He has also been approached by Georgetown University Law School and other institutions. "It'll be a lot of fun," he said.

His mind, however, was still on the Court. In previous conversations, he had stressed his disappointment at the way the Court was covered by the press--at the inaccuracy of the reporting and the placing of decisions out of context. He had not changed his mind.

"I'm afraid," he said, "that most of your colleagues in the press simply don't do a good job." A key exception, he said, is Linda Greenhouse of The New York Times: "She's a whiz."

He kept returning to the failures of the press, because although the Court makes decisions affecting millions of Americans, many have only the dimmest notion of the content of those decisions and of how they were arrived at. And that, he thinks, is the fault of the press.

"What I would like to see," Brennan said, "is that [important cases] are covered from beginning to end, from before theyget to the Court to the final result. But what you get in most papers are a few lines about whether there was a reversal or an affirmation of a lower-court decision."

I reminded Brennan that one way more people would understand and become involved in the drama of the Court would be to have oral arguments before the Justices seen on TV. C-SPAN has offered to carry all oral arguments in their entirety.

Brennan believes strongly that those arguments should be televised. When he was on the bench, however, most of his colleagues refused to allow cameras in the courtroom. They preferred that the Court do all its work in isolation. Since he left, there has been no indication that the Justices have changed their minds.

I asked Brennan his appraisals of certain Justices, past and present. He was unusually candid, perhaps because he is off the bench. We began with William O. Douglas, a passionate defender of the individual against the Government and often Brennan's ally.

I quoted New York University law professor Burt Neuborne, who said there had not been much staying power in Douglas' work. "When he retired," Neuborne said, "Douglas left behind no legacy that transcended his death. By contrast, Brennan's influence is great and lasting."

Brennan did not comment on his own legacy, but of Douglas, he said, "There's too much damn truth in that appraisal. His last ten years on the Court were marked by the slovenliness of his writing and the mistakes that he constantly made. He seemed to have lost the interest that was so paramount in everything he did when he started on the Court. It's too bad."

"He had a quick mind," I said.

"Yes, but it ran away with him," Brennan answered.

Thurgood Marshall and Brennan voted similarly much of the time--they were always in agreement on death-penalty cases. I was a little hesitant when I asked Brennan his reaction to the judgment of some Court reporters that Marshall can't keep up with the other Justices in terms of the quality and quantity of his work.

"No," Brennan said, "I don't think that's a fair appraisal at all--especially in the areas that are his particular interest. Of course, all of those are sort of racial interests. In those areas, I don't think there's anyone in the country who can match either his experience or his expression of his experience. When he does put himself to it, the resultant product is just as good as it used to be in his trial days, when he was regarded--and with justification--as one of the ablest trial lawyers in the country."

I asked Brennan about Sandra Day O'Connor and my sense that she can be a good deal more impassioned than her image as a cool, self-contained jurist.

"She can and does get quite passionate," Brennan said. And he mentioned United States vs. James B. Stanley, which resulted in one of the most appalling decisions in recent Supreme Court history--though it received very little press coverage. Brennan thinks that that case still deserves a great deal of attention.

In 1958, James B. Stanley, a master sergeant in the Army, had answered a call for volunteers who were to test the effectiveness of protective clothing and equipment against chemical warfare. He and the other volunteers were cruelly deceived. Secretly, the Army doused them with LSD to find out how (continued on page 154)The Justice(continued from page 122) the drug worked on human subjects. In Stanley's case, the drug produced hallucinations, periodic loss of memory and incoherence. Also, according to the Court record, Stanley would occasionally "awake from sleep at night and, without reason, violently beat his wife and children, later being unable to recall the entire incident." His marriage was destroyed.

Years later, when Stanley found out what had been done to him by the Army, he sued for damages. Speaking for a majority of the Supreme Court, Antonin Scalia said Stanley had no redress, because military discipline and decision making could not be called into question without the entire military regime being disrupted.

O'Connor was furious in dissent, attacking the Army's conduct as being "far beyond the bounds of human decency." The Constitution, she said sharply, guarantees even soldiers due process of law.

Brennan remembered his own dissent in Stanley very well. He emphasized that after the Nuremberg war-crimes trials, the United States Military Tribunal established the Nuremberg Code, which prohibits medical experimentation on unknowing human subjects. Yet the U.S. Supreme Court was putting its awesome imprimatur on similar experiments by its own Armed Forces.

So angry was Brennan that he ended his dissent with, "Soldiers ought not be asked to defend a Constitution indifferent to their essential human dignity."

Reliving that case with me, Brennan said, "Wasn't that an outrageous case? It was incredible! Some of us were so shocked by it when it came down that we were fearful it had started a trend. But, thank God, it hasn't shown its head again--not yet, anyway."

Capital punishment, however, shows no sign of disappearing. In all of our conversations through the years, Brennan has said that "the evolving standards of human decency will finally lead to the abolition of the death penalty in this country."

With more and more executions taking place, I asked him why he remained optimistic.

Brennan laughed. "Maybe because it's the way I want it to come out. I just have a feeling. Do you realize that we are the only Western country that has not abolished the death penalty? I can't believe that the leader of the free world is going to keep on executing people. I don't know when the change is going to come. I've never suggested it's going to be next week or five years from now. But I am absolutely convinced that it will happen. When I start doing some writing, I'm going to have quite a bit to say about capital punishment."

I told the Justice that a recent Amnesty International report had revealed that 31 prisoners in 12 states in this country were "under sentence of death for crimes committed before they reached their 18th birthday." And this nation is one of only four--including Bangladesh, Iran and Iraq--that execute juvenile offenders.

"Isn't it horrible to be in that company?" Brennan said. "Good God!"

The Court also decided, I noted, that a retarded person can be executed.

"That's right," he said. "That's even worse. Well, I still believe that eventually, we'll become more civilized. It would be horrible if we didn't. I wish there were more people arguing in the opposition."

Except for Thurgood Marshall, there are--with Brennan gone--no other absolute opponents of capital punishment on the Court. "Well," said Brennan, "people on the Court can evolve, too. I give you the opinion for the Court by the Chief Justice in the Hustler Magazine, Inc., vs. Falwell case."

Larry Flynt had a fake ad published in Hustler in which the Reverend Jerry Falwell and his mother were depicted, with Falwell saying that his first sexual experience was with his mother in an outhouse. Both were drunk. ("I never really expected to make it with Mom, but then, after she showed all the other guys in town such a good time, I figured, 'What the hell!'")

A lower court awarded Falwell $200,000 for intentional infliction of emotional distress, but the Supreme Court unanimously reversed the decision--with William Rehnquist writing a passionate defense of free expression. ("At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.")

In the past, however, Rehnquist had not been one of the Court's notable defenders of free speech. Nor did landmark opinions by Brennan, such as New York Times Co. vs. Sullivan, make it any easier for public officials and, later, public figures to win libel suits. But in the Falwell case, Rehnquist actually embraced Brennan concepts he had previously criticized.

However, in the 1989 flag-burning case Texas vs. Gregory Lee Johnson, a year after Hustler vs. Falwell, Rehnquist did a serious reverse with regard to the First Amendment. Said Brennan, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Rehnquist sternly disagreed. A parody of Falwell and his mother having sexual intercourse in an outhouse was one thing, but disrespect for the symbol of American freedom must be punished.

I asked Brennan how much give-and-take there is at the conferences during which the Justices tentatively decide how they will vote on a case they've just heard argued. Did he and Rehnquist, for instance, get into a substantive face-to-face discussion of the flag-burning case?

"No," said Brennan. "Contrary to belief, there's very little face-to-face debate. Our decisions are based on what we write, on the drafts we circulate to one another. What happens at the conferences is only a scratching of the surface. You really don't get into it until you have to write out your position, and then it changes back and forth as you read what the other Justices have to say. Writing does a better job than if we were trying to decide a case just sitting around a table and arguing with one another. You're much more careful about what you're going to say if you write it down."

"You say the decisions are more careful," I said, "but it's still hard for me to understand how certain Justices can carefully vote, for example, to execute the retarded or teenagers."

A case in point, Joshua DeShaney vs. Winnebago County Department of Social Services, one of the most poignant in the recent history of the Court, concerned a child, Joshua DeShaney, who had been beaten so often and so brutally by his father that he became permanently retarded and will be institutionalized for life. A county social worker who knew the boy was being abused took no action, so the county never took the child into custody.

Accordingly, a majority of the Court ruled that the child and his mother had no claim for damages because the state had not inflicted the violence on the child--the father had--and so it was not responsible. Although one of its agents had had continuing knowledge of what was going on, the state had not placed the child under its protection.

In his indignant dissent, Brennan said it was eerie that the county social worker had chronicled in detail what was happening to the child; and, indeed, when she heard about the last and most devastating beating, she said, "I just knew the phone would ring someday and Joshua would be dead."

Yet six members of the Court had failed to see--Brennan stressed in his dissent--that "inaction can be every bit as abusive of power as action.... I cannot agree that our Constitution is indifferent to such indifference."

Only Thurgood Marshall and Harry Blackmun were as appalled as Brennan at the majority view. In his dissent, Blackmun--in a rare anguished cry from the heart in the history of the Court's opinions--wrote, "Poor Joshua!"

Brennan's customary optimism and his conviction that the Court will one day fully live up to the Constitution does sometimes waver. For instance, when he is confronted by the coldness of colleagues, as in the case of Joshua DeShaney.

But he keeps bounding back. "You'd be amazed at the mail I've gotten since my retirement," he said. "Holy Moses! All these people agreeing with me about the way the Court and the country should be going. It's been an eye opener for me."

As always, Brennan sees so much injustice in the land--while still believing that the Constitution can redress it when enough Americans really know the power and promise of that document.

He often refers to this passage from a 1986 speech he made to the American Bar Association's Section on Individual Rights and Responsibilities:

We do not yet have justice, equal and practical, for the poor, for the members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses, for the unrepresented consumer--for all, in short, who do not partake of the abundance of American life.... The goal of universal equality, freedom and prosperity is far from won and ... ugly inequities continue to mar the face of our nation. We are surely nearer the beginning than the end of the struggle.

On days when he sees that end as being terribly far away, Brennan's spirits are invariably lifted by a passage in William Butler Yeats's play Cathleen Ni Hoolihan. It's about a dream, he said, "that although old, is never old." The dream is that no one anywhere will be denied his or her inherent dignity and rights; and in the play, that dream is personified by a figure called the Poor Old Woman.

As he has to visitors for more than 30 years, Brennan--in his soft, hoarse voice--read me the passage:

"Did you see an old woman going down the path?" asks Bridget.

"I did not," replies Patrick, who came into the house just after the old woman left it, "but I saw a young girl and she had the walk of a queen."

Brennan smiled. "We can't give up," he said. "We can't despair. We have to keep taking up the cudgels, and the first thing you know, by God, we'll abolish the death penalty and we'll make the Fourteenth Amendment come alive for everyone, so that there will be justice for all."

In this regard, Brennan has been vigorously advocating for years that law schools involve their students in clinics that deal with clients among the poor and those who are otherwise marginalized in this society. (The American Bar Association notes that 80 percent of Americans have no access to the legal help they need because they can't afford a lawyer.)

Brennan now sees more and more law schools changing in ways he approves. "The students are learning firsthand about how the law can actually affect people's lives," he said. "They learn not only from law books but from actual cases involving actual people. And that experience is going to lead to more improvement in the lives of many."

Eventually, perhaps, the words carved above the entrance of the Supreme Court--Equal Justice Under Law--may be more than rhetoric.

On the other hand, there are law students, I told Brennan, who out of decent motives--to combat racism and sexism, for example--have been working to establish speech codes on their campuses. The codes punish offensive speech and sometimes go as far as to lead to suspension or expulsion. Even some law school professors are supporting this kind of censorship.

I told him that at Stanford, student organizations, including the Asian Law Association, Black Law Students Association, Native American Law Students Association, the Asian American Students Association and the Jewish Law Students Association advocate these codes.

Brennan shook his head. "I'll be damned," he said.

I asked him what he would do about the speech codes proliferating at colleges around the country.

"I can tell you what I think they ought to do," he said. "They ought to just abolish all of them."

Unfortunately, if these speech-code cases reach the Supreme Court, he will not be there to say just that. But much of what Brennan has said will last--as future Justices quote from opinions of his that will shape the course of constitutional debate for as long as there is a Constitution.

And the core of all William Brennan has said and done is his unyielding conviction that if freedom of expression is eroded, so, eventually, will be the rest of our liberties.

When I asked him if he had a favorite part of the Constitution, he replied, "The First Amendment, I expect. Its enforcement gives us this society. The other provisions of the Constitution merely embellish it."