Book Review Symposium
The Common Man?
JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel.
Houghton Mifflin Harcourt. 2010. Pp. 688, $35.00.
Marsha S. Berzon*
Judges, and Justices, are just not all that interesting, usually. I deal with
judges daily. And, although those I work with are, to a person, incredibly
hard working, smart, and well intentioned, they tend to be, as Justice
Brennan was, as I quite definitely am, people with a fairly narrow set of
interests, admirable but pedestrian lives, and, operating as they do in relative
isolation, a perspective on their times no more reliable or wide-ranging than
that of the run of the citizenry.
An exception to this perhaps hard generalization was, according to
Gerald Gunther’s biography,1 Learned Hand, because Judge Hand was
interesting, a public intellectual who happened to be a judge. In contrast, one
cannot imagine Justice Brennan having had the enormous impact on our society that he did except as a judge. The title of a book of remembrances
published by the Brennan Center for Justice at NYU Law School,2 an
organization established in his honor after his death largely by former clerks,
is “The Common Man as Uncommon Man,”3 purloining a phrase used by
David Halberstam to describe Justice Brennan. An apt description, and one
that bespeaks both affection for the person and respect for his enormous
accomplishments.
Yet, what provided Justice Brennan the chance to be “uncommon” was,
I suspect, not any foreordained destiny. Instead, it was that, for fairly fortuitous reasons,4 he was appointed to the Supreme Court of the United States in
1956. As a reader of the biography comes to appreciate as she wades
through the more than 500 pages of information and analysis, both halves of
* United States Federal Court of Appeals Judge, Ninth Circuit. I would like to thank
Alexandra Grayner, U.C. Hastings College of Law ’12, for her assistance in preparing this review.
1. See generally GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994).
2. THE COMMON MAN AS UNCOMMON MAN: REMEMBERING JUSTICE WILLIAM J. BRENNAN,
JR. (E. Joshua Rosenkranz & Thomas M. Jorde eds., 2006).
3. David Halberstam, The Common Man as Uncommon Man, in REASON & PASSION: JUSTICE
BRENNAN’S ENDURING INFLUENCE 22, 22 (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997).
4. See SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 71–95
(2010) (describing President Eisenhower’s search for a young Catholic with court experience to fill
the vacancy).
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that fortuity mattered mightily—that it was the Supreme Court, and that it
was 1956.
The biography can be usefully mined with respect to the first point. As
becomes clear as one reads on, the attributes needed by a judge on a collective court, particularly one as large and prominent as the United States
Supreme Court, go well beyond intellectual prowess and an engaging writing
style. The contrast between the native brilliance of Justices Felix Frankfurter
and William Douglas on the one hand and the more practical attributes of
Justice Brennan on the other nicely captures the point. The contrast in their
comparative effectiveness is drawn out in the book, with Justices Frankfurter
and Douglas very much the losers. One does not have to buy the backslapping Irishman version of the good Justice—which neither I nor the book’s
authors do—to recognize that Justice Brennan’s willingness to sacrifice
doctrinal purity and perfectly organized opinions in the effort to put together
majority decisions was a trait essential to his ultimate impact on the Court.
For, academic critiques notwithstanding, that flexibility—including the
willingness to write opinions more narrowly than he might have wished—
was often essential to getting done what needed getting done: avoiding the
fractured decisions that confound litigants and lower courts and require doing
a second time—when the court personnel changes or the case is better
presented—what could otherwise be done once, if less than perfectly.5
To turn to the timing point at somewhat greater length: Just two years
before Justice Brennan’s nomination, the Court had decided Brown v. Board
of Education.6 In all the current political and academic banter about the
proper role of judges, 7 Brown has remained inviolate—the iconic example of
what our courts are there to do, of a necessary constitutional intervention
when the other branches of government could not act, of a decision which
every judge and justice now sitting on the bench professes to be sure he or
she would have joined, and been proud to join, had he or she been in the position to do so. But in 1956, of course, both the legitimacy and impact of
5. On the writing front, I should note, Justice Brennan was no slouch. I often tell my clerks that
although Justice Brennan usually accepted the basic organization and analysis of my first drafts, he
always added at least a few sentences—and those sentences were the ones that appeared in
newspapers, summarizing the holding and bringing home to the lay public the rationale and import
of that holding.
6. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
7. See, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief
Justice of the United States: Hearing before the S. Comm. on the Judiciary, 109th Cong. 55 (2005)
(statement of John G. Roberts, Jr.) (“[A]nd I will remember that it’s my job to call balls and strikes,
and not to pitch or bat.”); Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86
B.U. L. REV. 1049, 1051 (2006) (discussing the “principle conceptions of the judicial role”); Major
Garrett, Obama Pushes for ‘Empathetic’ Supreme Court Justices, FOXNEWS.COM (May 1, 2009),
http://www.foxnews.com/politics/2009/05/01/obama-pushes-empathetic-supreme-court-justices/
(quoting President Obama as seeking a Justice who “understand[] and identify[] with people’s
hopes and struggles”).
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The Common Man?
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Brown was up for grabs, and the role of the Court in transforming principle
into reality was yet to be defined.8
As it turned out, the Court’s grappling with desegregation and the civil
rights movement had doctrinal ramifications that went far beyond the vastly
influential equal protection/racial discrimination principles developed in the
wake of Brown.9 For one thing, the seminal constitutional defamation case,
New York Times v. Sullivan,10 was a direct outgrowth of the situation in the
South: As the biography reports, there were forces in the South who saw
large libel judgments for small factual errors as a way of driving out the national media from the region and thereby lessening the pressure to
desegregate.11 Mistrust of Southern judges and juries also underlay Fay v.
Noia,12 Justice Brennan’s landmark—but since overruled—habeas corpus
case. Although itself a case from New York, Fay undoubtedly reflected concerns about whether state courts in the South could be trusted fairly to decide
criminal cases concerning African-American defendants and, more
specifically, civil rights activists.13
There was another, perhaps less obvious spinoff of the race
discrimination cases: The development, starting in 1971, of the line of
constitutional sex discrimination cases that culminated in Craig v. Boren,14
Justice Brennan’s opinion that finally settled on an intermediate standard of
constitutional review for sex discrimination cases. As several recent
8. See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in
Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470, 1478–99 (2004).
9. See, e.g., Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969) (holding that all
school districts are obligated to end school segregation); Green v. Cnty. Sch. Bd. of New Kent
Cnty., 391 U.S. 430 (1968) (holding that a school board’s freedom-of-choice plan was not a
sufficiently speedy step toward desegregation and thus violated Brown v. Bd. of Educ. (Brown II),
349 U.S. 294, 300–01 (1955)); Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down race-based
legal restrictions on marriage); Cooper v. Aaron, 358 U.S. 1, 17–20 (1958) (declaring state
governors and legislatures bound by Brown to avoid postponing the desegregation of schools).
10. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
11. See Stern & Wermiel, supra note 4, at 220–21 (“Such enormous awards threatened to drive
out of the South reporters from major media organizations—exactly the intended goal of those filing
the suits.”).
12. 372 U.S. 391 (1963), overruled in part by Wainwright v. Sykes, 433 U.S. 72 (1977) and
abrogated by Coleman v. Thompson, 501 U.S. 722 (1991).
13. See generally Larry Yackle, The Story of Fay v. Noia: Another Case About Another
Federalism, in FEDERAL COURTS STORIES 191 (Vicki C. Jackson & Judith Resnik eds., 2010)
(discussing the origin of Fay’s holding that a state prisoner would be barred from raising a federal
claim in federal habeas only if he had deliberately bypassed a previous opportunity to advance the
claim in state court); see also Henry v. Mississippi, 379 U.S. 443, 450 (1965) (relying in part on
Fay v. Noia to vacate the conviction of famed civil rights activist Aaron Henry by a Mississippi
court and remand for a hearing); Beckwith v. Anderson, 89 F. Supp. 2d 788, 792 (2000) (recounting
Byron de la Beckwith’s 1994 conviction and life imprisonment sentence in 1994); John Herbers,
Beckwith’s 2d Trial Ends in Hung Jury, N.Y. TIMES, Apr. 18, 1964, at A1 (describing the second
all-white jury which failed to convict Beckwith for the murder of NAACP official Medgar Evers).
14. 429 U.S. 190 (1976).
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commentators have noted,15 both the impetus for the litigation that generated
and shaped the cases that came before the Court and the Court’s willingness,
for the first time, to view discrimination based on sex as worthy of the
Court’s concern in many ways mimicked the earlier developments regarding
race-based discrimination. And Justice Brennan was in the lead with regard
to the gender cases as he had been, and continued to be, in the race cases,
writing a plurality opinion for the Court in Frontiero v. Richardson16 in 1972
that would have equated sex with race discrimination for constitutional purposes by applying strict scrutiny to governmental sex discrimination.
The sex discrimination cases have received particular focus in the
reviews of Stern and Wermeil’s biography,17 because both before and,
astonishingly, after Frontiero, Justice Brennan was personally uncomfortable
with women lawyers and law clerks, and with the prospect of a women
Justice on the Supreme Court.18 In 1966, he told one law school dean who
was proposing clerks for him that while “for equal rights for women, . . . my
prejudices are still for the male”;19 in 1970, he turned down a recommendation from two former clerks teaching at Boalt Hall Law School at Berkeley of
an exemplary woman candidate; in 1973, Justice Brennan initially refused to
hire me as his first woman clerk when Professor Stephen Barnett once again
chose a woman for the slot Justice Brennan allocated to Boalt every few
years; and, reportedly, Justice Brennan was so uncomfortable with the notion
of serving with a woman Justice that he thought he’d resign were one ever
appointed.20
It is odd, for me, to have been part of this story as well as a reader about
it. I never knew until reading Justice Brennan the entire tale behind the
phone call I got from Justice Brennan in the spring of 1973 offering me the
clerkship, but I did know that something odd had happened: I was asked by
Professor Barnett in the fall of 1972 whether I was interested in the clerkship,
then told a few months later that I’d not been chosen (although I was never
told who was). Then, still more months later, Judge James R. Browning, the
Ninth Circuit judge for whom I was clerking, came into my office to tell me
15. See, e.g., GAIL COLLINS, WHEN EVERYTHING CHANGED: THE AMAZING JOURNEY OF
AMERICAN WOMEN FROM 1960 TO THE PRESENT 89–93 (2009); Serena Mayeri, Reconstructing the
Race-Sex Analogy, 49 WM. & MARY L. REV. 1789, 1796–97 (2008).
16. 411 U.S. 677 (1973).
17. See Justin Driver, Robust and Wide-Open, NEW REPUBLIC, Feb. 17, 2011, at 36, 38; David
J. Garrow, The Original Activist Judge, WASH. POST, Oct. 17, 2010, at B1, available at
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/15/AR2010101502672.html; Nina
Totenberg, Justice Brennan: A Liberal Icon Gets Another Look, NPR (Nov. 26, 2010),
http://www.npr.org/2010/11/24/131567727/justice-brennan-a-liberal-icon-gets-another-look;
Ed
Whelan, Justice Brennan on Female Law Clerks and Justices, NATIONAL REVIEW ONLINE—
BENCH MEMOS (July 22, 2010), http://www.nationalreview.com/bench-memos/231303/justicebrennan-female-law-clerks-and-justices/ed-whelan.
18. See STERN & WERMIEL, supra note 4, at 385–408.
19. Id. at 386–87.
20. Id. at 388–89, 399.
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that he thought I’d be hearing from Justice Brennan—and I did, in a call in
which Justice Brennan, with his usual graciousness, invited me to serve as
his law clerk the following term. The only hint of a back story was that
Professor Barnett warned me over dinner before I left to be particularly nice
to Mary Fowler, Justice Brennan’s indispensable secretary and later wife.
I learned part of the larger back story after Justice Brennan died, when I
finally had the nerve directly to ask Professor Barnett what had happened,
and was told, as recounted in detail in the biography,21 that the Justice had
turned me down on the basis of gender, but that Professor Barnett—quite the
hero of this story22—had challenged his decision and changed his mind. As
it turns out, Professor Barnett did exactly what I would hope any former
clerk of mine would do if he or she knew that I was putting my legacy and
reputation in danger: He wrote an amazingly forthright letter to the Justice,
suggesting that the gender-based hiring decisions were “both unconstitutional
and simply wrong,” warning that at some point there could be a lawsuit about
the issue (not that I was about to bring one), and concluding with both an
appeal to higher values—noting that the Justice would not want a daughter or
granddaughter denied opportunities because of gender—and to legalities—
noting that if subpoenaed, he, Barnett, would tell the truth.23
After adding that neither I nor my co-clerks ever perceived any
difference in treatment between me and the “boys” once I arrived in
chambers,24 the authors of the biography make of all this that Brennan
“strictly compartmentalized his Court opinions and his life, often taking positions in opinions that were far more liberal than his own personal views.”25
To the degree this assessment can be read as perjorative—and, certainly,
some of the commentators on the biography have read into this episode,
combined with the earlier rejection of a women clerk and the failure to hire
another woman clerk for seven years,26 hypocrisy or worse27—I would
demur.
21. Id. at 399–400.
22. Professor Stephen Barnett passed away on October 13, 2009.
23. STERN & WERMIEL, supra note 4, at 400.
24. Id. at 401. The biography also reports, as I have described in writing about the Justice, that
Justice Brennan and I both had child care responsibilities that term, he with regard to his
granddaughter and me for my two-year-old son. Id. at 401–02; see also Marsha S. Berzon, Justice
Brennan’s Childcare Issues, in THE COMMON MAN AS UNCOMMON MAN: REMEMBERING JUSTICE
WILLIAM J. BRENNAN, JR!, supra note 2, at 77, 77–79; Marsha S. Berzon, Honorable William J.
Brennan, Jr.: Remarks of Marsha S. Berzon, 118B S. Ct. at 63; Marsha S. Berzon, Dedication, 31
LOY. L.A. L. REV. 739, 740–41 (1998).
25. STERN & WERMIEL, supra note 4, at 399.
26. Id. at 406.
27. See Whelan, supra note 17 (describing Justice Brennan’s behavior in this area as
“surprising”).
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As I have noted elsewhere28 and as Justice Ruth Ginsburg put it
succinctly in a comment to the biographers, Justice Brennan “‘was a man
brought up in a certain age,’” in which women rarely had professional jobs
and men were used to speaking one way to other men and, as a matter of
respect, in a more genteel manner to women.29 To me, one measure of the
“uncommon man” that Justice Brennan was is that, despite his personal comfort zone, he was able to appreciate and expound on the principle that sexbased discrimination bears a close resemblance to, and has no more place in
the modern world than does, the race-based discrimination with which he had
wrestled for many years on the Court. And a second measure is that he was
able, once an objective outsider pointed out the tension between the principles he asserted publicly and his personnel decision, to admit he was wrong
and reverse his decision.
Seeing beyond the assumptions of the world in which one grew up can
take time, intellectual effort, and gentle prodding from others—like the
Justice’s daughter Nancy—who have different visions and different
experiences. (Indeed, with regard particularly to the reaction of members of
the Supreme Court to women’s rights issues, I do not discount the daughter
quotient—daughters with their own professional aspirations and childcare
issues—as a major influence on the outcome of more than one case.) That
Justice Brennan was able to understand the sex discrimination rights claim en
gros, well before appreciating the need to implement it in his daily life, indicates to me not a weakness in his legal rulings but the strength that the
principle of equal treatment and dignity, despite outward differences, had
acquired in his constitutional lexicon of values by the early nineteen
seventies, after he had served on the Court for a decade and a half. Drafters
of statutes—and constitutions—may be able to state with confidence and
commitment a broad principle while not being able to foresee the application
of the principle to real world circumstances. That is why I tend to be skeptical of the variety of statutory interpretation or constitutional originalism
which looks at the contemporaneous behavior or projections of the progenitors of the statute or constitutional provision as indicative of the meaning of
their broad pronouncement, even though the pronouncement is intended for
application by others and in the future, not by themselves and now.
Similarly, Justice Brennan’s delay in conforming his behavior to his
pronouncements with regard to sex-based discrimination does not undermine
his jurisprudence. It merely demonstrates, as does much else about him, that
he was at once common and uncommon, a product of his times but a person
28. See Berzon, Dedication, supra note 24, at 741 (noting that lawyers arguing sex
discrimination cases to the Court at this time had to help the Justices see beyond the gender roles to
which they had become accustomed).
29. STERN & WERMIEL, supra note 4, at 405 (quoting Interview with Ruth Bader Ginsburg,
Associate Justice, United States Supreme Court (Feb. 13, 2008).
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The Common Man?
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with both the aspiration and, as it proved out, the ability to influence future
times by reminding us all of our better selves.