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Justice William Brennan, Jr.:
Architect of the Bill of Rights
By Laurence H. Tribe
H
ow can one pay adequate tribute
to a judge who has already been
pcalled "the judicial scholar's
scholar "the most outstanding justice of
our century, and "one of the greatest
judicial scholars, public officials and
human beings mankind has ever
known'?" i can only add to these welleared accolades my own words of admiration for a man whose work will long
occupy a prominent place in American
constitutional law.
Justice William J. Brennan, Jr. did
not simply lead the struggle to extend,
and then to safeguard, the provision of
basic civil and political rights to all the
people of the United States. Noble as
that effort would hase been, its survival
after his departure from the Court
would not have been assured.
What makes Justice Brennan's
accomplishments so remarkable and so
timeless is that they created not a mere
sandcastle to be washed away by the
political vicissitudes of the Court's ebb
and flow, but a well--founded legal edifice that will withstand constitutional
tides for decades to come
u
When Justice Brennan was appointed to the Court. he was equipped with
sore than benevolent sympathy for the
disadvantaged and dispossessed of our
society; he had a constitutional vision
of the system of rights and liberties that
so many of us take for granted today. If
Chief Justice John Marshall, by virtue
of such decisions as Marbury v.
Madison, 5 U.S. 137 (1803) and
McCulloch v. Maiyland, 17 U.S. 316
(1819), was the chief architect of a
powerful federal judiciary and legislature, then Justice Brennan is the chief
architect of the federal judiciary's protection of individual rights.
When he was appointed to the Court,
there was little hint of what was to come.
Many observers predicted that he would
prove to be a "moderate," "middle-ofthe-road" justice. One news analysis
concluded that "[a] close study of the
career of the new appointee to the Court
indicated that he cannot be counted on to
join either a 'liberal' or 'conservative'
block on the nation's highest tribunal."
But Justice Brennan's constitutional
vision belied those predictions. He
authored some landmark opinions for
the Court:
Baker v. Carr, 369 U.S. 186 (1961),
which rejected the suggestion that
apportionment decisions are nonjusticiable "political questions"
New York Times Co. v.Sullivan, 376
U.S. 254 (1963), which established the
"actual malice" standard for defamation actions against public officials;
Katzenbach v*Morgan, 384 U.S.
641 (1966), which held that Congress
has the power under Section 5 of the
14th Amendment to prohibit a state-law
English-literacy voting requirement,
even where the Supreme Court had
held that such a requirement is in itself
not unconstitutional;
Green v. Count' School Board, 391
U.S 430 (1968), which restored
momentum to the implementation of
Brown ts Board of Education, 347 U.S.
483 (1954), by rejecting a "freedom of
choice" plan in Virginia and announc-
ing that "the burden on a school board
today is to come forward with a plan
that promises realistically to work, and
promises realistically to work now":
Goldberg i. Kelly) 397 U.S. 254
(1970), which held unconstitutional, as
a deprivation of property without due
process of law, a New York procedure
for suspending AFDC benefits pending
an evidentiary hearing on suspected
ineligibility,
In re Winship, 397 U.S. 358 (1970),
which held directly, for the first time,
that the due process clause requires
proof beyond reasonable doubt in a
criminal trial:
Bivens v Six Unknown Named Agents
of te FederalBureau of Narcotics,403
U.S. 388 (1970), which made available,
under the 14th Amendment itself, a
cause of action for damages against federal officials who allegedly caused a violation of Fourth Amendment rights;
Keyes v. School District No. 1, 413
U.S. 189 (1973), which found the
Denver school system unlawfully segregated the first time that the Court
had found a northern school system to
be in violation of Brown v Board of
Education;
Craig i. Boren, 429 U.S. 190 (1976),
which applied "intermediate" scrutiny
to invalidate a state law forbidding the
sale of 3.2 percent beer to males under
the age of 21 but permitting such sales
to females older than 18;
Monell v. New York City Department
of Social Services, 436 U.S. 658
(1978), which overruled Monroe v.
Pape, 365 U.S. 167 (1961), and held
that local governments and their officials can be sued directly under Section
1983 for monetary, declaratory, and
injunctive relief;
Brown v Hartlage,465 U.S. 45
(1982). which held violative of the First
ment-Ed. 1;and Michael H. v.Gerald
D., 491 U.S.] 10, 136 (1989), dissenting [substantive due process-Ed.].
Whether or not one agrees with
Justice Brennan's views, the magnitude
of his achievement and breadth of his
influence are indeed undeniable.
But I do not wish simply to canvass
Justice Brennan's seminal opinions.
Impressive though they are. there is an
even more noteworthy dimension to his
work as constitutional architect: his
ability to decide a case, and particularly
to craft an opinion, in such a way that
would lay the foundation for future
decisions.
Justice Brennan did not view cases
in isolation from one another. Rather,
he saw them as building materials with
which a constitutional vision could be
elaborated. He appreciated deeply the
interconnectedness of the constitutional
edifice; an easily overlooked support or
a partially obscured beam from one
case frequently became the chief buttress in another.
His unparalleled ability to detect
related themes in different cases, and to
see the constitutional structure whole,
will give ageless strength to his judicial
handiwork.
Perhaps Justice Brennan's most significant accomplishment-and the one most
taken for granted today-was his role in
the "selective" incorporation of the provisions of the Bill of Rights into the 14th
Amendment, thereby making these provisions enforceable against the states.
To be sure, before Justice Brennan's
arrival, the Court already had held a
number of important provisions of the
Bill of Rights, particularly the First
Amendment's protections, applicable to
the states.
But the Court expressly had rejected
any notion that the 14th Amendment's
due process clause mandated the incorporation of the first eight amendments
as such. Rather, the Court believed that
Laurence H. Tribe it could give the due process clause a
isthe Ralph S.Ty:er, Jr. Professor of meaning independent of the liberties
Constitutional Law at Harvard Law School. He
secured by the Bill of Rights by pickis the author of numerous books including
American ConstitutionalLaw and On ing and choosing those rights it considReading the Constitution. ered to be "of the very essence of a
Amendment's speech clause a state
corrupt practices act, as applied to a
political candidate for state office who
promised to lower the salaries of public
officials if elected: and
Texas v. Johnson, 491 U.S. 397
(1989), which found in violation of free
speech a state statute criminalizing the
desecration of venerated objects, as
applied to an individual who had set a
U.S. flag on fire during a political
demonstration.
And generations of scholars to come
will study Justice Brennan's provocative
separate opinions in School District of
Abington Township v. Schempp, 374 U.S.
203, 230 (1963), concuning [religion
clauses Ed.1; McGautha : California,
402 U.S. 183, 248 (1971). dissenting
[capital punishment-Ed.]; Funnanv.
Georgia,408 U.S. 238, 257 (1971), concurring [same-Ed.]; and in Frontieroi
Richardson, 411 U.S. 677 (1973) (plurality opinion), holding that statutory classifications based on gender are inherently
suspect and therefore subject to the same
strict scrutiny as racial classification.
Also on that same list are Paris
Adult Theatre I v. Slaton, 413 U.S. 49,
73 (1972), dissenting [obscenity-Ed.];
Stone v. Powell, 428 U.S. 465, 502
(1976), dissenting [federal habeas corpus-Ed.]; Atascadero State Hospital :
Scanlon, 473 U.S. 234, 247 (1985), dissenting [Eleventh Amendment-Ed.];
McCleskv v. Kemp, 481 U.S. 279, 320
(1987), dissenting [capital punish-
scheme of ordered liberty"
Thus, outside the First Amendment,
the Court had applied to the states only
three specific provisions of the Bill of
Rights at the time Justice Brennan
joined the Court: the right to be free
from unreasonable search and seizure,
the right to just compensation, and the
right to counsel in capital cases.
In addition, even with respect to provisions of the Bill of Rights deemed
enforceable against the states, the Court
had not resolved whether the rights in
question applied to the states in precisely the same manner that they applied to
the federal government. Apparently they
did not, since the exclusionary rule was
mandatory in federal but not state criminal prosecutions.
The Court's approach to the incorporation question, however, changed dramatically soon after Justice Brennan's
appointment. At first, the justice
expressed his views in dissent, arguing
that the 14th Amendment does not
extend to the states only a "watereddown, subjective version of the individual guarantees of the Bill of Rights."
But between 1961 and 1969, the
Court issued a series of decisions that
"fundamentally reshaped the law of this
land" by interpreting the 14th
Amendment to "nationalize" the guarantees of life, liberty and property.
Although Justice Brennan did not write
all, or even many, of the opinions
applying provisions of the Bill of
Rights to the states--of the key cases
he authored only Malloy v Hogan, 378
U.S. I (1964)-his behind-the-scenes
role as one of the principal orchestrators of the incorporation process has
certainly been well documented.
Moreover, Justice Brennan's contribution to the incorporation decision
was not an everyday opinion. Rather.
Mallov v. Hogan, which made applicable to the states the Fifth Amendment
right against compelled self-incrimination, illustrates the depth of his constitutional vision and his special ability to
lay a foundation in his opinions for
future cases to follow.
Malloy was the first decision to
speak explicitly in "incorporationist"
terms and to make clear that the relevant provision of the Bill of Rights
applied to the states exactly in the sane
way that it applied to the federal government. Writing for the majority,
Justice Brennan rejected the suggestion
that a truncated form of the Fifth
Amendment be applied in state courts,
on the ground that "[ilt would be incongruous to have different standards determine the validity of a claim of privilege
based on the same feared prosecution,
depending on whether the claim was
asserted in a state or federal court."
Richard Cortner has concluded that
"the nationalization process took on an
inexorable quality after ... Malloy."
Unlike some justices before him who
had sought to incorporate wholesale the
Bill of Rights against the states on a
basis of a somewhat tendentious historical interpretation, Justice Brennan
characteristically rested his decision on
a straightforward functional argument
that was destined to serve as a building
block for subsequent decisions "nationalizing" federal rights.
Justice Brennan's approach to incorporation was inspired in part by his
firm belief in "a broad right to inviolate
personality." This facet of his constitutional vision emerged clearly in a pair
of cases decided within two weeks of
each other in the 1964 Term: Griswold
v. Connecticut, 381 U.S. 479 (1965)
and Lamont v. PostmasterGeneral, 381
U.S. 301 (1965).
Although Justice Brennan did not
author the majority opinion in either
case, his influence was profound in
both. Justice Douglas had been
assigned to write an opinion for the
court in Griswold invalidating as
applied to a married couple., a state
law that made it a crime for any person to use any drug or device to prevent conception.
Bernard Schwartz has recounted
that, in his first draft, Justice Douglas
had attempted to rest the case on First
Amendment grounds by analogizing
the husband-wife relationship to other
forms f association accorded special
constitutional protection.
After this draft circulated, Justice
Brennan suggested that the case instead
be grounded on a Tight to privacy, as an
aspect of substantive 14th Amendment
liberty, rather than on the basis of the
freedom of association.
He maintained that, although the
expansion of the First Amendment to
include association as well as speech
provided a useful analogy for the
extension of liberty to encompass marital privacy in the use of contraception,
the First Amendment itself was a weak
foundation for the opinion.
In this communication with Justice
Douglas, Justice Brennan pointed to his
own concurrence in a case argued
shortly after Griswold-Laiontv.
PostmasterGeneral, which concerned
the power of the federal government to
require addressees of foreign unsealed
mail detained by the Post Office as
"communist political propaganda" to
request delivery of such mail.
Quite naturally, many citizens who
actually desired to receive such mail
were reluctant to make an affirmative
request to an official govermnent
agency. But there was a problem: The
mail was sent from abroad by foreigners
who appeared to lack First Amendment
rights. The U.S. citizens subject to the
requirement were potential recipients of
the mail, and the Court had never
addressed the First Amendment rights of
persons in that position. Justice
Brennan's concurrence identified this
issue and proposed a solution also
applicable to the difficulties faced by
Justice Douglas in Griswold:
It is true that the First Amendment
coiitains no specific guarantee of
access to publications. However, the
protection of the Bill of Rights goes
beyond the specific guarantees to
protect from congressional abridgment those equally fundamental personal rights necessary to make the
express guarantees meaningful. I
think the right to receive publications is such a fundamental right.
Justice Douglas adopted Justice
Brennan's proposal and added language
to the Griswold opinion explaining that
"specific guarantees in the Bill of Rights
have penumbras,. formed by emanations
from those guarantees that help give
them life and substance" A constitutional right of privacy was one of those
penumbras. It included a right of marital
privacy that was "older than the Bill of
Rights---older than our political parties,
older than our school system."
Although the modern right to privacy-the basis of reproductive freedom
of choice-was conceived in Griswold,
Justice Douglas' opinion was unsatisfyingly sketchy and involved only married
couples. It was left to Justice Brennan to
bring the analysis to full gestation in two
opinions for the Court: In Eisenstadt v.
Baird,405 U.S. 438 (1972), he proclaimed that "[i]f the right of privacy
means anything, it is the right of the
individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision
whether to bear or beget a child."
In the second case, Carey v.
PopulationServices International.,431
U.S. 678 (1977), he announced that
"Griswold may no longer be read as
holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny,
the teaching of Griswold is that the
Constitution protects individual decisions in matters of childbearing from
unjustified intrusion by the State."
In large part, therefore, we owe
what I have elsewhere described as
"the most important substantive due
process decision of the modern period"
to the efforts of Justice Brennan.
It is more than a little ironic that
Justice Brennan succeeded in urging
Justice Douglas to rest Griswold on
privacy grounds rather than on the freedom of association, because in many
ways Justice Brennan was the father of
the modern First Amendment.
When he joined the Court in 1956,
the Court had never found that an act
of Congress violated freedom of
speech. The Court had never addressed
directly the vexing problems inherent
in the censorship of books and movies.
And, with the exception of
Beauharnaisiu Illinois, 343 U.S. 250
(1952), the Court had never specifically
dealt with the First Amendment implications of state libel laws.
Doctrinally, the Court was engaged
in a debate between, on the one hand,
Justices Black and Douglas, who maintained that the First Amendment was
"absolute" and, on the other hand,
Justices Frankfurter and Harlan, who
advocated "ad hoc balancing."
Justice Brennan brought a distinctive
outlook to bear on questions involving
freedom of expression. He eschewed
both the "absolutist" and the "ad hoc
balancing" approaches that prevailed on
the Court prior to his arrival and he was
the "architect," according to Justice
Goldberg, of the type of "definitional
balancing" (this apt phrase is Melville
Nimmer's) that today structures most
First Amendment analysis.
In addition to this doctrinal framework, Justice Brennan contributed a
unique substantive vision of the role
that speech plays in our society. In his
landmark opinion, New York Times Co.
v. Sullivan, 376 U.S. 245, he identified
as the "central meaning of the First
Amendment" our "profound national
commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open."
By focusing on the systemic value
of speech to the democratic governing
process, Justice Brennan saw that "the
First Amendment embodies more than
a commitment to free expression and
communicative interchange for their
own sakes; it has a structural role to
play in securing and fostering our
republican system of self-government"
(See Frank Michelman. "A Tribute to
Justice William J. Brennan, Jr.", 104
Hara L Rev 22).
Symptomatic of this approach was
his implicit reliance in New York Times
v. Sullivan on the views of Alexander
Meiklejohn, an influence that can be
detected in the Court's recent flagburning decision. Thus, while Justice
Brennan by no means ignored the interest of an individual in speaking, he
expanded the First Amendment to
include "solicitude not only for communication itself but also for the indispensable conditions of meaningful
communication"
He found protection for the right to
receive ideas as well as the right to send
them; he imposed an affirmative duty on
government in certain contexts to provide
access to information and recognized the
press's right to preserve the confidentiality of news sources, on the grounds that
the press "is not only shielded when it
speaks out, but [also] when it performs
all the myriad tasks necessary for it to
gather and disseminate the news." He
also believed that a speaker has the right
to use a public forum unless the exercise
of that right would be "basically incompatible with the normal activity of a particular place at a particular time."
Justice Brennan was blessed with a
rich vision indeed of the social functions of freedom of speech-just as he
appreciated the systemic importance of
education and the right to vote. But his
most lasting achievement in the First
Amendment area may well prove to be
the panoply of procedural safeguards
that he crafted to implement the substantive protections afforded to speech.
The "actual malice" standard of
New York Times Co. v.Sullivan, which
has been extended well beyond
defamation suits, is, after all, a procedural test. Justice Brennan's indisputably favorite building block, however, was his opinion in Speiser v.
Randall, 357 U.S. 513 (1958), which
he used to construct procedural requirements in a wide variety of situations.
Speiser, in light of its somewhat
anomalous facts-California sought to
deny property-tax exemptions to veterans who refused to subscribe to loyalty
oaths-was a case that could have been
decided on any of a number of
grounds. But Justice Brennan, writing
for the Court, used the case to emphasize that "the procedures by which the
facts of the case are determined assume
an importance fully as great as the
validity of the substantive rule of law to
be applied," and "the more important
the rights at stake the more important
must be the procedural safeguards surrounding those rights."
Justice Brennan concluded that the
procedures in Speiser, which placed the
burdens of proof and persuasion on the
tax-payers, denied them freedom of
speech without the procedural safeguards required by the due process
clause of the 14th Amendment.
This reasoning quickly took on significance outside the narrow factual context of Speiser. Justice Brennan used the
case, for example, as one of the prime
foundations of his opinion for the Court
in In re Winship, 397 U.S. 358 (1970),
which announced for the first time that
due process requires proof beyond reasonable doubt in a criminal trial.
He extended this reasoning in
Sandstrmm v. Montana, 442 U.S. 510
(1979), and Francisv. Franklin,471 U.S.
307 (1985), to hold that a state may not
use a conclusive or mandatory presumption as a shortcut to escape its obligation
of proving every element of a criminal
offense beyond reasonable doubt.
In addition, Speiser was the mortar
that Justice Brennan used to fashion the
rules of Marcus v. Search Warrant, 367
U.S. 717 (1961), that the First
Amendment imposes special constraints on searches for and seizures of
presumptively protected materials, even
those alleged by individual police officers to be "obscene."
Speiser was also a prime building
block for the standards-articulated by
Justice Brennan for the Court in
Freedman v. Maryland,380 U.S. 51
(1965), and Bantam Books, Inc. v.
Sullivan, 372 U.S. 58 (1963)-that govern the exercise of administrative discretion and licensing over speech potentially protected by the First Amendment.
Justice Brennan later transplanted
the principles underlying Speiser,
Marcus and Freedmanoutside the context of obscenity licensing schemes to
such cases as administrative systems
designed to prevent professional
fundraisers from committing fraud;
continued on page 39
issues. Here, any analysis will focus on
maintaining the integrity and impartiality of the courts. Communities with different attitudes toward their courts may
require judges to take different
approaches. Judges in small communities must always be attuned to the perceptions that their daily activities create.
These are but two examples illustrating the difficulties of applying codified
ethics provisions to the specifics of a
changing judicial world. Many jurisdictions now issue ethics advisory opinions
to help guide judges through these quandaries. The nature of ethics requires each
situation to be viewed from a variety of
viewpoints. The forces of daily reality
compete with the ideals expressed in the
Codes themselves. By viewing circum-
Justice Brennan
(continuedfrom page 34)
ordinances vesting authority in a single
official to determine whether a newspaper publisher can put its newsrack on
public property; and even laws making
it a crime to "interrupt" police officers
in the performance of their duties and
thereby granting police unbridled discretion in deciding whom to arrest.
He also employed Speiser to pioneer
the First Amendment "over-breadth"
doctrine and the powerful related
notion of "chilling effects."
Such emphasis on the primacy of
judicial process is only to be expected
from a man whose decisions manifested a strong faith in the "peculiar competence of the federal judiciary" in protecting individual rights.
Speiser's versatility emerges with
special force when one examines
Justice Brennan's use of the Speiser
precedent to develop the "unconstitutional conditions" doctrine across a
broad spectrum of factual settings.
For example, he relied on Speiser
in his opinion for the Court in
Sherbert v. Verner, 374 U.S. 398
(1963), which established that applicants cannot be denied unemployment
compensation benefits solely because
stances through the lens of the public,
many choices will be ethical ones. The
fundamental principles of fairness and
independence tempered with the principles of effectiveness and economy can
help judges apply the Code in their daily
work and community life. A fine line
exists between applying the principles in
a thoughtful and sensitive manner and
changing the underlying principles themselves. The principles are broad and aspirational while much of a judge's world is
concrete and situational. Ethical principles do not change with the circumstances but circumstances often shape
the application of the principles. As with
the application of many legal principles,
the integrity lies in the rigor with which
the analysis occurs.
A thoughtful approach to ethical
challenges will ensure that the principles
maintain their integrity and that the
Code of Judicial Conduct maintains its
relevance even as the roles of our judges
and their communities change. There
may not be definite answers but we can
ensure that the derived answers are
sound and well thought out. In philosophy, relativity often refers to the need
for a thinking mind to have knowledge.
Using this definition, judicial ethics is
indeed an example of ethical relativity.
they refuse to accept employment in
which they would be required to work
on a day that their religious faiths
hold to be the Sabbath. Justice
Brennan interpreted Speiser to mean
that "conditions upon public benefits
cannot be sustained if they so operate,
whatever their purpose, as to inhibit
or deter the exercise of First
Amendment freedoms."
He applied the same rationale to
limit government power over public
assistance and entitlements, regardless
of whether they were denominated
"rights" or "privileges," in such opinions for the Court as Kevishian v.
Board of Regents, 385 U.S. 589 (1967)
[public school teaching job-Ed.];
Goldberg v Kelly, 397 U.S. 254 (1970)
[welfare benefits-Ed.]; Bell v. Burson,
402 U.S. 535 (1971) [driver's licenseEd.]; Communist Party of Indiana v.
Whitcomb, 414 U.S. 441 (1974) [ballot
position-Ed.]; Elrod v. Burns, 427
U.S. 347 (1976) [public employmentEd.]; FCC v. League of Women Voters,
468 U.S. 364 (1984) [federal funds for
public TV station-Ed.]; and Rutan v.
Republican Party of Illinois, 497 U.S.
62 (1990) [public employment-Ed.].
To be sure, Justice Brennan's success on the Court reflected his person-
ality as well as his constitutional vision.
He is a genuinely warm and gregarious
man who gained his colleagues' friendship as well as their respect. (See Nina
Totenberg, "A Tribute to Justice
William J. Brennan, Jr,", 104 Han. L.
Rev. 33). A ready consensus-builder, he
was always willing, as Justice Marshall
described, to "prun[e] a paragraph here
or recast a thought there to accommodate his colleagues' concerns."
And Justice Brennan was never one
to avoid unfamiliar ground if it was
necessary to make his point, as illustrated by his dissent in Boyle v. United
Technologies Corp., 487 U.S. 500
(1988), which criticized Justice Scalia's
majority opinion as unwarranted judicial activism.
In the absence of a grand architectural design, however, those human
qualities would not have shone so
brightly, just as Christopher Wren
would not have achieved greatness had
he limited himself to mastering the
mechanics of the building trade. It was
Justice Brennan's constitutional vision
of liberty and equality that endowed the
Bill of Rights with the fullness and
majesty that today seem so familiar.
Our nation and, indeed, the world, will
be forever in his debt.
If you have a judicial ethical question
that you would like to see addressed in
the JudicialEthics column, please write
to: Editor,The Judges' Journal,
American Bar Association, 750 N. Lake
Shore Drive, Chicago, Illinois 60611.