How, then, to explain the influence that even his most ardent conservative critics conceded was of unparalleled proportions? Frankly, the tale of Justice Brennan is far less exciting than the mythical image which survived right up to his death last week at the age of 91. His influence came from his ability to articulate a consistent, forceful approach to the Constitution for a sustained period of time - 34 years, making him the sixth longest-tenured justice in history. His influence came from his ability to make his expansive view of rights in the Constitution a more attractive, more appealing alternative for other justices than the austere, pinched reading of the Constitution advanced by conservative colleagues, from Felix Frankfurter and John M. Harlan to William H. Rehnquist and Antonin Scalia.
His influence came from a keen intellect and sharp legal skills that enabled him to craft practical solutions to constitutional problems. His influence came from his extraordinary, even aggressive, willingness to accommodate the requests of other justices for changes in his draft opinions if that is what it took to amass five votes - and if the end result was still substantially in line with Brennan’s objectives. And his influence was aided, no doubt, by his infectious warmth, which enabled him to get along with all of the 22 other justices with whom he served. Indeed, despite his protestations about the image of a cajoler, many of the 109 law clerks who served him between 1956 and 1990, when ill health forced him to retire, have vivid memories of his walking off to the court’s weekly conferences arm in arm with Justices Harlan or Harry A. Blackmun or Lewis F. Powell.
There is a grand scale and a narrow one on which I think Brennan would want his legacy to be measured. The narrow one consists of the many individual pieces of the puzzle of constitutional law - the more than 1,350 opinions that he wrote, including 461 majority opinions. Among his major decisions were Baker v. Carr (1962), opening the federal courts to lawsuits over uneven voting districts (and starting the one-person, one-vote revolution that changed the nation’s politics forever); New York Times v. Sullivan (1964), giving substantial First Amendment protection from libel lawsuits for much criticism of public officials and promoting a broad vision of free speech; Green v. New Kent County School Board (1968), insisting that school boards stop dragging their feet on desegregation; Goldberg v. Kelly (1970), finding that due process protects individuals against arbitrary termination of government benefits and requires notice and a hearing; Eisenstadt v. Baird (1972), extending the right of privacy for contraceptive use from married women to single women; Texas v. Johnson (1989), holding that flag burning, no matter how offensive, is a form of protected free speech; plus a number of decisions upholding affirmative action. Justice Brennan understood that some decisions would survive the test of history and others would be overruled. ““You’ve got to expect that there will be twists and turns, especially with major doctrine,’’ he told me. He tried not to get impatient. ““You couldn’t be here if you let yourself get frustrated,’’ he said. He continued to state his view that the death penalty was unconstitutional for 18 years, hoping that patience and persistence would someday change the view of society and of the court.
But the grand scale of his legacy may be more enduring. First, in the 1960s he helped lead the court’s critical shift on the reach of the Bill of Rights. By the time the Warren Court was finished, the Constitution’s guarantees against abuse of federal power had been applied to state and local governments, too. Second, he played a major role in finding rights like privacy implicit in the Constitution, and in expanding the meaning of the specific provisions of the Bill of Rights to address new situations. Finally, he articulated a central belief that the purpose of the Constitution, and the court’s mission in interpreting it, was to advance the human dignity of all. These pieces of the grand scale, Brennan believed, transformed American law in a humanistic way that will never be undone.
His exuberance for other people never abated. I last saw Justice Brennan in June in a nursing home in Arlington, Va., where he was confined after breaking his hip and contracting pneumonia. His body gaunt in a wheelchair and his voice frail, he greeted me just as he always had with a ““Hiya, pal,’’ that lit up the room.
