Joseph Brennan

For more information on William Joseph Brennan, Jr., visit Britannica.com.

(b. Newark, N.J., 25 Apr. 1906; d. Arlington, Va., 24 July 1997; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1956–1990. Justice Brennan played a singular role in the constitutional revolution of the past two generations. The architect of many of the Warren Court's landmark decisions in the late 1950s and 1960s, he subsequently emerged as the leading proponent on the Burger and Rehnquist Courts of giving the Constitution a broad construction to promote individual liberty and equality. He continued up through his retirement in 1990 to engineer significant extensions of constitutional doctrine in some areas, while in others writing in passionate dissent against decisions he viewed as undermining the Warren Court's legacy. Brennan's judicial philosophy remains the subject of spirited controversy, but his supporters and critics agree that he ranks as one of the great justices in the nation's history.

Brennan, an Irish‐Catholic Democrat, was appointed to the Court by President Dwight D. Eisenhower, a Republican, in the midst of Eisenhower's 1956 reelection campaign. Although Eisenhower in later years viewed his selection of Brennan as one of his worst mistakes, Brennan's performance should not have come as a surprise. The second of eight children born to parents who had immigrated to the United States in the 1890s, Brennan grew up in a struggling middle‐class family and was a firsthand witness to suffering and social unrest in Newark, New Jersey. By his own account, the most influential person in Brennan's life was his father, a coal shoveler in a local brewery who later became a prominent labor leader and municipal reformer. The elder Brennan passed on his activist social philosophy to his son and inspired him to achieve excellence. William junior was an honors graduate of the Wharton School of the University of Pennsylvania and ranked high in his class at Harvard Law School, which he completed through scholarships and odd jobs after his father's death.

Brennan practiced law with a prominent New Jersey firm in the 1930s. He joined the army during World War II, served as a labor troubleshooter for the undersecretary of war, and was awarded the Legion of Merit. Brennan returned to private practice after the war, was a leader of the New Jersey court reform movement in the late 1940s, and within a three‐year period progressed through the state judiciary from the trial bench to the state supreme court. He advocated the rights of criminal defendants and, in speeches around the state, bluntly compared McCarthy‐era excesses to the Salem witch trials (see Communism and Cold War). (Senator McCarthy cast the lone dissenting vote when the Senate subsequently confirmed President Eisenhower's nomination of Brennan.)

Notwithstanding his junior rank, Brennan quickly became one of the Supreme Court's most influential members. He authored a forceful restatement of federal judicial supremacy in Cooper v. Aaron (1958), the Court's response to Southern “massive resistance” to desegregation orders. His opinion in Baker v. Carr (1962) opened the door to the “reapportionment revolution” of the 1960s and 1970s and the rule of “one person, one vote” in legislative districting; Chief Justice Earl Warren later described the decision as the most important of his tenure. And in New York Times Co. v. Sullivan (1964), Brennan led the Court in extending the protections of the First and Fourteenth Amendments to criticism of public officials, imposing sharp restrictions in libel cases to promote “the principle that debate on public issues should be uninhibited, robust, and wide‐open” (p. 270). Brennan repeated this pathbreaking performance in numerous other areas—authoring eminent opinions that, for example, restricted loyalty oaths and government regulation of pornography, recognized a broad freedom of association, supported curbs on prayer in public schools, and expanded the availability of habeas corpus and other federal judicial remedies for constitutional violations. (See Assembly and Association, Citizenship, Freedom of.)

Several factors account for Brennan's early prominence on the Court. He quickly joined what was oft‐described as the Court's “liberal” wing, which, after Justice Arthur Goldberg's appointment to the Court in 1962, commanded a solid majority receptive to expansive claims of individual rights and federal powers. At the same time, Brennan frequently took a more cautious approach than his liberal colleagues; indeed, an analysis of voting patterns shows he was squarely at the Warren Court's center and the justice least likely to be in dissent. Brennan tended more than others to avoid absolutes in favor of a “balancing” of competing interests, which in turn put him in a better position to forge majority consensus.

For example, Brennan in the Sullivan case rejected the view of Justices Hugo Black, William O. Douglas, and Arthur Goldberg that criticism of public officials' conduct should be absolutely immune from libel suits under the First Amendment, instead fashioning a privilege for such criticism that could be overcome through proof of “actual malice,” which he defined as deliberate or reckless disregard of the truth. Similarly, Brennan's opinion in Schmerber v. California (1966) held, over the dissents of Chief Justice Warren and Justices Black, Douglas, and Abe Fortas, that the Fifth Amendment's privilege against self‐incrimination applies only to “testimonial” or otherwise “communicative” evidence and thus does not prohibit the forcible extraction of blood samples from suspected drunk drivers.

Brennan's pivotal position also resulted from his superb personal, tactical, and intellectual abilities. Although he disparaged references to his role as a “coalition builder,” the historical record demonstrates otherwise. As Chief Justice Warren said of Brennan, “Friendly and buoyant in spirit, a prodigious worker and a master craftsman, he is a unifying influence on the bench and in the conference room” (Warren, “Mr. Justice Brennan,” Harvard Law Review 80 [November 1966]: 1–2). Brennan became Warren's closest colleague; the two met weekly before court conferences to discuss cases and plan strategy. Frequently, a majority would agree on an outcome while fragmenting on the appropriate analysis; in these situations Warren repeatedly turned to Brennan to build a decisional framework for the Court's result. Brennan's opinions were scholarly and closely reasoned; he displayed remarkable patience and skill in revising his drafts to accommodate his colleague's concerns and thereby reach a (sometimes fragile) majority consensus.

These abilities served Brennan well as the composition of the Court began to change at the end of the 1960s and into the 1970s. Although Brennan found himself in the minority with increasing frequency, he continued to play a significant leadership role on the Burger Court (and, to a lesser extent, on the Rehnquist Court until his retirement because of declining health in 1990). He authored several opinions recognizing broad remedies against municipalities and federal, state, and local officials for violations of federal law. Brennan was similarly influential in the First Amendment area. His opinions in Elrod v. Burns (1976) and Rutan v. Republican Party of Illinois (1990) sharply curtailed patronage practices as infringing the freedom of political association; Texas v. Johnson (1989) and United States v. Eichman (1990) invalidated, on identical 5‐to‐4 votes, laws that made it a crime to desecrate the U.S. flag. The opinions in the latter two cases, joined by two appointees of Ronald Reagan, were vintage Brennan, emphasizing in Johnson the “special place reserved for the flag in this Nation” while underscoring the rights of political protest: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents” (p. 420). Brennan similarly continued to attract occasional majorities to his views on the strict separation of church and state (see Religion).

Perhaps Brennan's greatest achievements in these later years were in the equal protection area. He successfully advocated heightened judicial scrutiny of gender‐based classifications in Craig v. Boren (1976) and became the Court's most vocal advocate of gender equality, openly supporting the proposed Equal Rights Amendment. He similarly played a major role in sustaining the constitutionality of affirmative action measures designed to counteract the societal effects of past racial and ethnic discrimination.

Nevertheless, Brennan frequently was in caustic dissent, particularly in cases involving those suspected or convicted of crime. His isolation from the Court became most pronounced on the death penalty, which Brennan (along with Justice Thurgood Marshall) believed in all instances to be cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments (see Capital Punishment). His dissents railed against what he viewed to be the brutality of the death penalty, the arbitrariness by which it was administered, and its use against minorities, youth, and the retarded.

Brennan's critics argue that, perhaps more than any other justice, he epitomized an unrestrained federal judiciary that had arrogated unto itself ultimate control over virtually every facet of daily life, thus demeaning the right of citizens to govern themselves through representative democracy (see Judicial Self‐Restraint). Judges like Brennan, the argument continues, frequently exercise this power on the basis of their own policy preferences rather than the language or original intent of any particular constitutional provision.

Brennan commented in the South Texas Law Review (1986) that such arguments are “little more than arrogance cloaked as humility.” He maintained that the Constitution, as amended by the Bill of Rights and the Reconstruction Era Amendments, is fundamentally a charter embodying “a sparkling vision of the supremacy of the human dignity of every individual”; the Court's duty is to protect this value as “transcendent, beyond the reach of temporary political majorities.” In doing so, the Court's interpretation and application of the Constitution's broadly worded guarantees must constantly evolve. “Current Justices read the Constitution in the only way that we can: as twentieth‐century Americans. … [T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs” (pp. 433, 435–438).

One of the most notable examples of the way Brennan applied these principles, occasionally in conflict with justices who otherwise shared his philosophy, was in the area of government benefits. The Fifth and Fourteenth Amendments provide that a person's “property” cannot be deprived without due process of law. In the twentieth century a variety of relationships with government arose that in no sense could be described as traditional property—welfare, subsidies, tax exemptions, licenses, grants, and other forms of public benefits. Brennan's opinion in Goldberg v. Kelly (1970), which analogized welfare to property for constitutional purposes, launched what has been called the “modern procedural due process revolution” by requiring fair procedures for granting and revoking government benefits, even though such benefits are not themselves constitutionally required. Brennan authored other landmark opinions holding that such benefits cannot be administered in ways that would penalize the exercise of constitutional rights; for example, Shapiro v. Thompson (1969) held, over the dissents of Chief Justice Warren and Justice Black, that laws requiring lengthy residence as a condition of welfare assistance unconstitutionally burden citizens' rights of interstate movement.

Brennan's theory of an evolving Constitution is further illustrated by his efforts to curb government intrusions on individual “privacy”—a word nowhere mentioned in the Constitution. His opinion in Eisenstadt v. Baird (1972), which struck down a law making it a crime to give contraceptives to unmarried women, emphasized that the unwritten “right to privacy” protects “the decision whether to bear or beget a child” (p. 453). His reasoning provided the foundation for the Court's curb on abortion regulations the following year in Roe v. Wade (1973). Brennan also stressed privacy rights in his dissents from court decisions upholding increasingly sophisticated police investigative techniques, periodically invoking the horrors of the totalitarian technological society portrayed in George Orwell's 1984.

A leading advocate of a strong federal judiciary, Brennan nevertheless urged others to move even further in protecting individual rights. His opinion in Katzenbach v. Morgan (1966) recognized a broad congressional authority under section 5 of the Fourteenth Amendment to extend constitutional guarantees beyond the lines drawn in court decisions. United Steelworkers v. Weber (1979) upheld voluntary affirmative action programs in the private sector. And as he increasingly found himself in dissent, Brennan in the mid‐1970s began calling on state courts to “step into the breach” by interpreting their own state constitutions more expansively than the federal Constitution was currently being construed. In opinions, articles, and speeches he urged, with increasing success, that state courts should “thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms” (Brennan, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 [January 1977]: 489, 503). It is an ironic comment on the man and his changing times that Brennan, a former state supreme court justice who cemented his place in history as an architect of federal judicial supremacy, emerged late in his career as a leading advocate of independent state judiciaries (see State Constitutions and Individual Rights).

Bibliography

• Hunter R. Clark, Justice Brennan: The Great Conciliator (1995).
• Hunter R. Clark, In Memoriam: William J. Brennan, Jr., Harvard Law Review 111 (November 1997): 1–50.
• Peter Irons, Brennan vs. Rehnquist: The Battle for the Constitution (1994).
• E. Joshua Rosenkranz and Bernard Schwartz, eds., Reason and Passion: Justice Brennan's Enduring Influence (1997).
• Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court—A Judicial Biography (1983)

— Charles G. Curtis, Jr., and Shirley S. Abrahamson

William J. Brennan, Jr. (1906-1997) served on the U.S. Supreme Court for 34 years, starting in 1956. During this time he consistently championed libertarian rulings and an expanded interpretation of the Bill of Rights and the Civil War amendments.

Born in New Jersey in 1906, a magna cum laude graduate of the University of Pennsylvania, William J. Brennan, Jr. was a scholarship student at Harvard's School of Law. His legal career had taken him to the New Jersey Supreme Court when he was nominated to the U.S. Supreme Court by President Dwight Eisenhower in 1956. After an initial recess appointment, the Democrat, Roman Catholic jurist was Senate-confirmed with the single dissenting vote of Joseph R. McCarthy of Wisconsin.

Professor Felix Frankfurter had always admonished his students not to be unduly swayed by professorial advocacy, that their guiding motto should be "think for yourself." Years thereafter, when he served with one of those students, William Brennan, Frankfurter asked whimsically whether it was really necessary for Brennan to have taken his former teacher's admonition so literally. Indeed, Justice Brennan struck out on his own, with a creativity and diligence that won him a "near great" rating by the Court's observers. But President Eisenhower, who had sent him to the Court, was only slightly less irked by and disenchanted with Brennan's evolving record than with Chief Justice Earl Warren's (whose opinions Brennan joined in most instances). When Eisenhower was asked later if he had made any mistakes while he had been president, he replied: "Yes, two and they are both sitting on the Supreme Court." "Both" referred to Warren and Brennan.

By inclination less of a judicial activist than Warren at the outset, and given to more careful, more communicatively-reasoned, expression, Brennan became a predictable member of the Court's libertarian wing. His abiding dedication to the freedoms of the First Amendment, notably those of speech and press, soon saw him assigned some of the leading libertarian opinions of the Warren Court era. Thus, he authored the tribunal's significant and unanimous judgment in The New York Times Libel Case of 1964, which established that a public official, in order to recover damages for a publication criticizing his official conduct, would have to show "actual malice" on the part of its publisher. Extolling the "uninhibited, robust, and wide-open" nature of debate on public issues, Brennan held that "libel can claim no talismanic immunity from onstitutional limitations, " that it must be "measured by standards that satisfy the First Amendment."

Justice Brennan, who served on the Court for three decades, continued to champion a generously expansive interpretation of the Bill of Rights and the Civil War amendments. In many ways he became the heir-apparent to Justice William O. Douglas's jurisprudence and his votes, especially after the latter's retirement from the bench in 1975. Together with Justice Thurgood Marshall, Brennan thus evolved into the leading libertarian activist on the (Warren) Burger court after 1969. In that role he continued to be the tribunal's foremost expert on, for example, the vexatious line between freedom of artistic expression and proscribable obscenity (predictably finding himself among the minority of four who dissented from the contentious 1973 decisions that accorded generous leeway to the states in judging what is obscene).

Probably the most devout member of the Court, Brennan's principled and consistent championing of the free exercise of religion and an absolute separation of church and state rendered him the high tribunal's leading anti-establishmentarian. Thus, his 70-page concurring opinion in Abington School District v. Schempp and Murray v. Curlett (1963) held unconstitutional state-mandated bible reading and reciting the Lord's Prayer in public schools. Likewise, his impassioned dissenting opinions in such accommodationist holdings as Roemer v. Maryland Public Works Board (1976) and Tilton v. Richardson (1971) represented his creed that under the Constitution the state must resolutely stay out of the church and the church must resolutely stay out of the state.

Even more prominently, and equally consistently, Justice Brennan became watchdog and advocate on the egalitarian front, particularly in matters of race and gender. Joined almost always by Justice Thurgood Marshall and usually, although not always, by Justices Byron R. White and Harry A. Blackman, he more often than not succeeded in finding a fifth vote to provide victory for claims of invidious discrimination. This position went to the extent of embracing racial quotas, giving rise to allegations of support of reverse discrimination. Hence, he marshalled Justice Powell's vote and his authorship of that part of the famed Bakke opinion (1978) that sanctioned affirmative action by constitutionalizing resort to considerations of race as a "plus" in educational admissions. And in 1979, in what may well be the most clear-cut case of judicial legislating on behalf of remedial/compensatory race-conscious policies, he spoke for a five-member majority in Steelworkers v. Weber and gained Justice Potter Stewart's support. This decision, in the face of precise and express statutory language and patent congressional intent to the contrary, sanctioned racial quotas in employment, overridingly on the basis of what Brennan frankly termed the "spirit" rather than the "letter" of title VII of the Civil Rights Act of 1964.

Perhaps, however, Justice Brennan will be best remembered for his precedent-shattering opinion for a six to two Court in Baker v. Carr in 1962. There, over lengthy, bitter dissenting opinions by Justices Frankfurter and Harlan, Brennan was joined by Chief Justice Warren and Justices Black, Douglas, Clark, and Stewart. The majority opinion held that aggrieved individuals had a constitutionally guaranteed right to come to the judicial branch to scrutinize allegedly discriminatory legislative apportionment by the states. The decision, which set into motion a revolution in electoral districting, was a fitting tribute to the judicial resourcefulness and perseverance of its self-effacing yet determined author. It was in keeping with his frequent warning that "the interest of the government is not that it shall win a case, but that Justice shall be done"

In Brown v. Hartlage (1982), Justice Brennan's ruling found that a state corrupt practices act violated the First Amendment's freedom of speech guarantee when it was applied to a political candidate's campaign promise. One of Brennan's last major decisions was in Texas v. Johnson (1989), which found a state statute criminalizing the desecration of religious objects was in violation of freedom of speech when it was used against a person who had set the American flag on fire as a political statement.

In 1990, Justice Brennan retired from the Supreme Court, as did his fellow Justice, Thurgood Marshall. Their departure left many court watchers anxious that the Supreme Court was losing two "liberal" justices, and would assume a more "conservative" tone. In particular, many lamented the loss of Justice Brennan's gift for seeing the Constitution as a living document, thus enabling him to foresee the impact of one decision on many other elements of constitutional law. In ABA Journal Laurence H. Tribe wrote, "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." Also, many cited Justice Brennan's special capacity to rally his fellow justices behind a deicision, even in his later years when the Supreme Court assumed a more conservative tone.

After Brennan died in a nursing home in Arlington, Virginia, on July 24, 1997, Attorney General Janet Reno said he "stood up for people who had no voice. He devoted his long, rich life to helping the American justice system live up to its ideals." His intellect and charisma made him one of the most influential jurists in America's history.

Further Reading

In the wake of Justice Brennan's 1990 retirement, many periodicals profiled his career, and numerous biographies were written and planned. The February, 1991 ABA Journal gave a thorough overview of his career. Two books written shortly after Brennan's retirement were, Justice Brennan: The Great Conciliator (1995), by Hunter R. Clark, and Landmark Justice: The Influence of William J. Brennan on America's Communities (1991) by Charles Haar and Jerold Kayden. A major article is Stephen J. Friedman's "William J. Brennan" in Leon Friedman and Fred L. Israel, editors, The Justices of the United States Supreme Court, 1789-1978 (1980). See also Stephen J. Friedman, William J. Brennan, Jr.: An Affair with Freedom (1967), which includes an article and several appreciations published in the Harvard Law Review (1966). Justice Brennan's opinions offer a rich fare in themselves. Generally, see Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2d ed. (1985).

• Born: Apr. 25, 1906, Newark, N.J.
• Education: University of Pennsylvania, B.S., 1928; Harvard Law School, LL.B., 1931
• Previous government service: judge, New Jersey Superior Court, 1949–50; judge, New Jersey Appellate Division, 1950–52; associate judge, New Jersey Supreme Court, 1952–56
• Appointed by President Dwight D. Eisenhower as a recess appointment Oct. 16, 1956; replaced Sherman Minton, who resigned; nominated by Eisenhower Jan. 14, 1957
• Supreme Court term: confirmed by the Senate Mar. 19, 1957, by a voice vote; retired July 20, 1990
• Died: July 24, 1997, Arlington, Va.

William J. Brennan was a leader on the Supreme Court during most of his 34 years of service. Chief Justice Earl Warren viewed Brennan as his closest associate and relied upon him for wise advice and strong partnership. After Warren's retirement in 1969, Brennan continued to influence his colleagues, although not as strongly or decisively as before.

William Brennan rose to national prominence through hard work, persistence, and continuous development of his sharp intellect. He was the second of eight children of Roman Catholic immigrants from Ireland. His working-class parents encouraged him to pursue higher education and to achieve excellence in his life. In response to his parents' encouragement, Brennan became a brilliant student at the University of Pennsylvania and Harvard Law School.

After leaving Harvard, Brennan practiced law in Newark, New Jersey, and served in the army during World War II. After the war, he returned to his law practice and became a judge in the state courts of New Jersey.

In 1956, Republican President Dwight Eisenhower appointed Brennan, a Democrat, to the Supreme Court. He immediately joined forces with Chief Justice Warren and wrote several of the Warren Court's landmark decisions between 1956 and 1969.

Brennan wrote the Court's opinion in Baker v. Carr (1962), which Warren called “the most important case that we decided in my time.” In this case, the Court opened the way to a redrawing of voting districts that transferred political power from rural areas to urban ones throughout the United States. Before the Baker v. Carr decision, rural districts in many states had been unfairly favored over the urban districts to give them more representation in government than was deserved on the basis of population. Baker v. Carr led to a series of Court decisions (such as Reynolds v. Sims in 1964) that required state governments to eliminate or redraw voting districts that did not fairly represent various classes of voters.

Another of Brennan's landmark opinions came in New York Times Co. v. Sullivan (1964), which expanded freedom of the press by making it very difficult for a public official to recover damages for defamatory statements that are untrue. Justice Brennan argued that “debate on public issues should be uninhibited, robust, and wide open.” He held that “wide open” freedom of expression is the purpose of the 1st Amendment, which would be undermined if critics of government officials had to conform to “any test of truth.” He claimed that “erroneous statement is inevitable in free debate; and it must be protected if the freedoms of expression are to have the breathing space they need.” Brennan concluded that all speech about public officials was protected by the Constitution unless it was expressed “with actual malice,” that is, expressed “with knowledge that it was false or with reckless disregard of whether it was false or not.” Thus, an “actual malice” standard was established as part of constitutional law.

Justice Brennan was a loose constructionist; that is, he gave the Constitution a broad interpretation to promote the rights and opportunities of individuals. He believed in a dynamic Constitution that should be adapted to changing circumstances by judicial interpretation. He wrote in the South Texas Law Review (1986) that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Critics charged that Brennan tried to overextend the powers of the judicial branch to involve federal judges in making policy decisions that belong only to the people's elected representatives in Congress. They accused him and his followers of wanting to make law through their judicial decisions instead of limiting themselves to making judgments in specific cases about the meaning of the Constitution and federal statutes. Critics also said that Brennan was wrong to disregard the intentions of those who wrote the Constitution and its amendments in his broad interpretations of this fundamental document.

Brennan retired in 1990 because of declining health. Both his supporters and his critics recognized Brennan's decisive influence on the development of the Constitution in the latter half of the 20th century.

See also Baker v. Carr; Judicial activism and judicial restraint; New York Times Co. v. Sullivan

Sources

• Stanley H. Friedelbaum, “Justice William J. Brennan”, in The Burger Court: Political and Judicial Profiles, edited by Charles M. Lamb and Stephen C. Halpern (Urbana: University of Illinois Press, 1991)

William Joseph Brennan, Jr., was the first Roman Catholic appointed to the Supreme Court and served as associate justice of the Court from 1956 to 1990. His unshakable belief in the Constitution as the guardian of individual rights and liberties garnered both respect and criticism.

Brennan was born April 25, 1906, in Newark, New Jersey. He was the second of eight children of William Joseph Brennan and Agnes McDermott Brennan, Irish immigrants who settled in Newark in the 1890s. His father worked as a coal shoveler in a brewery and, according to Brennan, was the most influential person in Brennan's life. He was also a labor leader and municipal reformer who imbued Brennan with a profound social conscience and an affinity for activism.

Brennan received his early education in Newark public schools, and attended the Wharton School of Finance and Commerce, at the University of Pennsylvania, where he received his bachelor of science degree, cum laude, in 1928. He earned a scholarship to Harvard University Law School, where he studied under Felix Frankfurter, who would later be his colleague on the Supreme Court. Brennan graduated near the top of his class in 1931.

He began his legal career in 1932 with the Newark law firm of Pitney, Hardin, and Skinner. The firm later added Brennan as a partner and became Pitney, Hardin, Ward, and Brennan. He specialized in labor law and showed a unique talent for successfully negotiating employer-employee disputes. During World War II, Brennan served in the Army and eventually became the labor branch chief, Civilian Personnel Division of Army Ordnance. He rose to the rank of colonel and was awarded the Legion of Merit for services to the Army and Army Air Forces procurement programs.

After his Army service, Brennan returned to private practice, counseling large manufacturing corporations on labor matters. In 1949, he was tapped by New Jersey's Republican governor to serve on the state's superior court. Assigned to the appellate division, he distinguished himself by implementing reforms that relieved congestion in the court calendar. He was appointed to the New Jersey Supreme Court, and took his seat on March 24, 1952. While there, he helped institute a pretrial conference system that shortened and simplified trials and encouraged settlements, resulting in fewer and speedier trials.

Brennan had served only four years on the New Jersey Supreme Court when, to the surprise of everyone, including Brennan, President Dwight D. Eisenhower nominated him to serve on the U.S. Supreme Court. Eisenhower, a Republican, would later regard his appointment of the liberal Democrat as one of his worst mistakes, along with his earlier appointment of Chief Justice Earl Warren. Together, Brennan and Warren led the Court into an unprecedented era of judicial activism that was anathema to conservatives like Eisenhower.

Brennan quickly established himself as a staunch supporter of the rights and liberties guaranteed by the Constitution. He insisted that the Bill of Rights applies to all U.S. citizens, whether of the lowest or the highest stature. Brennan invited controversy with his view that the Constitution's guarantees must be constantly evolving.

Said Brennan, "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems."

Brennan's broad interpretation of the Constitution puts him at odds with more conservative members of the Court who construe the Constitution as narrowly as possible and attempt to ascertain the original intent of the drafters. The conservatives believe that if a right or freedom is not clearly conferred by the Constitution or by judicial precedent, it is not the job of the Court to try to find it there. They place the burden on the individual to show that the right or protection sought exists. Conversely, Brennan and like-minded liberals approach a case by asking whether anything in the Bill of Rights explicitly prevents the Court from finding that the right or protection exists, and they look to the government to prove that the right does not exist. Ironically, when a case involves the use of government power, the opposing groups tend to adopt each other's philosophy: conservatives ask whether anything in the law prevents the exercise of the power, and liberals like Brennan ask whether the power is explicitly allowed by the Constitution or some other statute.

In spite of his single-minded determination to read the Constitution as broadly as possible, Brennan often acted as a mediator between the liberal and conservative wings of the Court. A warm and charming man who is universally well liked, he used his formidable intellectual and technical skills in tandem with his innate diplomacy to build coalitions on some of the most divisive issues of the time. "You cannot dislike this man on a personal level, no matter how destructive he's been to the values you hold dear," declared Charles J. Cooper, assistant attorney general under President Ronald Reagan and an ideological archenemy of Brennan. Brennan is respected by friends and adversaries alike. In fact, although he is a lifelong Democrat, his appointments to the judiciary were recommended by conservative Republicans.

It is impossible to overstate the effect Brennan had on the law of the land from 1960 to 1990. He was the architect of pivotal decisions that shaped U.S. life during those years, including Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, a 1972 decision that struck down a law prohibiting the distribution of contraceptives to unmarried women. Brennan recognized a constitutional "right to privacy" protecting "the decision whether to bear or beget a child." His reasoning in Eisenstadt became the foundation for Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that removed many barriers to legal abortions.

Early in his career Brennan wrote the majority opinion in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), which allowed federal courts to hear challenges to legislative apportionment and paved the way for later Supreme Court cases establishing the concept of "one person, one vote." In New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), Brennan wrote that the First Amendment protects the press from libel suits brought by public officials, unless actual malice is proved. He extended the Fifth Amendment right against self-incrimination to prohibit mandatory registration of Communist party members, in Albertson v. Subversive Activities Control Board (382 U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d 165 [1965]). He found that the Constitution prohibits unequal treatment based on race, age, or gender, in a number of decisions, including In re Winship (establishing use of the "reasonable doubt" standard for juveniles); Frontiero v. Richardson (extending constitutional scrutiny to gender-based classifications); and Craig v. Boren (declaring that gender-based classifications are unconstitutional unless they are substantially related to the achievement of an important government objective) (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]; Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]; and Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 [1976]).

Brennan is a strong believer in affirmative action to remedy past discrimination, and he wrote numerous opinions on the subject. In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984), the Court held that it is lawful for employers to adopt voluntary affirmative action programs that are race conscious. Brennan wrote the opinion that upheld limited preferential treatment on the job for women and minorities, in Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), and found in United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987), that a one-black-for-one-white promotions quota did not violate the Constitution. Finally, in one of his last opinions on affirmative action, Brennan wrote that the Constitution permits preferential treatment of minorities in the awarding of FCC broadcast licenses (Metro Broadcasting v. FCC, 497 U.S. 547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 [1990]).

Brennan is an adamant defender of free expression even for the most reprehensible words or acts. In Texas v. Johnson (491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]) and in United States v. Eichman (496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 [1990]), he wrote opinions invalidating statutes that banned flag desecration, on the grounds that they violated the First Amendment. Although recognizing the "special place reserved for the flag in this Nation," he stated, "we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents" (Johnson).

He is also an ardent defender of the rights of children, declaring that we must teach young people "that our Constitution is a living reality, not parchment preserved under glass." He was appalled by cases in which the Court seemed to hold that the Bill of Rights does not apply to schoolchildren, and wrote in one dissent that the majority's decision had given school officials the license to act as "thought police" and taught the students "to discount important principles of our government as mere platitudes" (Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 285, 290, 108 S. Ct. 562, 577, 580, 98 L. Ed. 2d 592 [1988]).

Brennan earned the highest praise as well as the harshest criticism from his opinions in cases involving the rights of the accused. He steadfastly opposed the use of capital punishment, labeling it state-sanctioned killing, and in one of his final decisions on the Court, he voted against an execution by the state of Virginia. Taking human life, he has said, "is God's work, not man's." When that statement was dismissed as mere sentimentality, he replied, "The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity…. The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded." Brennan's critics point out that his opposition to the death penalty does not seem in harmony with his support of women's right to abortion, which some consider "state-sanctioned killing."

Brennan passionately defends the protections afforded by the Fourth Amendment's prohibition of unreasonable searches and seizures. His interpretation of the amendment helped establish the exclusionary rule, which holds that any evidence obtained illegally is tainted and cannot be used against the accused. During the 1980s, the Supreme Court recognized a growing number of exceptions to the rule, prompting Brennan to redouble his efforts to bolster its strength. His advocacy of the rights of criminal defendants brought him sharp criticism, particularly from the media, which often portrayed him as a libertarian who supported the rights of criminals while ignoring those of victims. In a radio interview in 1987, Brennan became uncharacteristically agitated when asked, "Why do you let some of those creeps go? They do such bad things, and on a technicality, you let them go." Brennan replied sharply,

You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They're not. We are what we are because we have those guarantees, and this Court exists to see that they are faithfully enforced. These guarantees have to be sustained—even though the immediate result is to help out some very unpleasant person. They're there to protect all of us.

Citing advancing age and health concerns, Brennan retired from the Court in July 1990, after thirty-four years as an associate justice. He was replaced by Associate Justice David H. Souter. Although he eventually slowed his pace considerably, he continued to be sought as a speaker and used every opportunity to carry on his campaign for individual rights and liberties.

Joseph Brennan may refer to:

• Joseph Brennan (civil servant) (1887–1963), Irish civil servant
• Joseph Brennan (basketball) (1900–1989), American basketball player
• Joseph Brennan (Irish politician) (1912–1980), Irish Fianna Fáil politician and government minister
• Joseph F. Brennan, Pennsylvania politician
• Joseph Payne Brennan (1918–1990), American writer and poet
• Joseph Brennan (politician) (born 1934), American Democratic politician and former Governor of Maine
• Joseph Brennan (Clann na Poblachta) (1889–1968), Irish Clann na Poblachta politician from 1948–1951
• Joseph E. Brennan (born 1934), U.S. politician

See also

• John Joseph Brennan

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