Why the next justice won't be like William Brennan.

The law, lawyers, and the court.
April 10 2010 5:04 PM

Justice Brennan Can't Be Reincarnated

Liberals can dream, but a consensus-builder has little to work with on today's Supreme Court.

With John Paul Stevens' announcement that he will retire at the end of the Supreme Court's current term, liberals' thoughts are turning to what an ideal replacement might look like.

Sonia Sotomayor proved last year that being a well-qualified and empathetic minority woman isn't necessarily enough for satisfying this base. Marjorie Cohn, president of the National Lawyers Guild, complained at the time of Sotomayor's nomination that President Obama had "missed an opportunity to tap a liberal intellectual giant … who will have a major impact on the Court for years to come." Geoffrey Stone, the University of Chicago Law School professor, lamented in February about the absence of "any powerful liberal voice" on the court who could provide a strong counterpoint to the rhetorical firepower of Justice Antonin Scalia.

On Friday, Chuck Schumer, D-N.Y., who sits on the Senate Judiciary Committee, emphasized the importance of finding a nominee who "might be able to sway the court and lead it." The perfect progressive nominee, it seems, should be an intellectual giant, and also passionate, persuasive, and politically savvy enough to build consensus and outfox the court's conservatives. Cohn and Stone had a name that captured all their aspirations—Justice William J. Brennan Jr.

So does Harvard Law professor Laurence Tribe, who told the Wall Street Journal last year that the ideal nominee would "bring majorities together around a compelling vision of the law with the elfin touch of someone like Brennan, someone who can move the ocean liner without making terrible waves."

Chosen by President Eisenhower in 1956, Brennan went on to surprise everybody with his uncanny ability to corral majorities for liberal causes during 34 terms as a justice. As co-author of a forthcoming Brennan biography, I'm heartened that he is still being held up as the model liberal playmaker and pitchman 20 years after his retirement in 1990. But my four years of work on the book lead me to conclude that the pining for Brennan overstates how much success any modern-day successor, however brilliant and crafty, could actually have as a consensus builder on the current court.

Brennan's reputation was established in 1979 by The Brethren,Bob Woodward and Scott Armstrong's insider account of the Burger court. The authors went a little overboard in their portrayal of Brennan as the court's Irish ward heeler, who, they claimed, worked the halls of the court twisting arms and perhaps even trading votes. Although Brennan was famously affable and inherited the political skills of his father, a Newark, N.J., city commissioner, the justice relied more on written persuasion and clerk-borne messages to other justices than the sort of glad-handing and logrolling described in The Brethren. But Brennan was undeniably an effective courthouse politician who was willing to accommodate his colleagues' concerns, even if the result was not always quite what he desired.

What Brennan had that any Obama pick will lack is a group of colleagues in the middle open to that sort of compromise. Brennan served with moderate Republican appointees like Harry Blackmun, who occasionally joined Brennan's majority opinions, in cases such as Keyes v. School District No. 1, the court's first big Northern school-desegregation decision, evenbefore he aligned more closely with the left of the court in the 1980s. Brennan also found common ground with Eisenhower appointee Potter Stewart on easing obscenity restrictions and turned to him as a pivotal vote in Baker v. Carr, the 1962 decision that set a "one person, one vote" standard for legislative redistricting.

Brennan similarly managed to win over John Marshall Harlan II, another Eisenhower pick, in his landmark 1964 libel opinion in New York Times v. Sullivan and again in the Goldberg v. Kelly welfare rights case in 1970. Lewis Powell, another moderate Republican, proved a key partner on affirmative action. He and Brennan worked closely to hash out their differences in Plyler v. Doe, the 1982 decision striking down a Texas law that permitted school districts to exclude children who were illegal immigrants from public school classrooms. Brennan also served with moderate Democratic appointees such as Tom Clark and Byron White. They were not reliable votes for the liberal bloc but could sometimes be swayed. White, for instance, voted with Brennan to extend the protections of the 14th Amendment to sex discrimination in Frontiero v. Richardson and Craig v. Boren in the 1970s.

It is these centrists who made it possible for Brennan to rack up victories after the retirement of Chief Justice Earl Warren and other close allies. Today, however, moderate Republican appointees are an endangered species, as Jeffrey Toobin recently described in his profile of Justice Stevens, who was the last of them. The era of a five-member centrist bloc—Blackmun, Powell, Stevens, Stewart, and White—has long since passed. The number of possible swing votes dwindled to one, Justice Anthony Kennedy, after the retirement of Sandra Day O'Connor. And it's hard to imagine a reincarnated Brennan having much more success persuading Kennedy than Stevens did.

If a conservative justice unexpectedly retires while Obama is in office, then the role of Obama's choice to replace Stevens could change. Such a shift could signal the resurgence of the liberal wing—albeit one composed of justices, such as Sotomayor and Breyer as well as Ruth Bader Ginsburg, who are not quite as liberal as Brennan and his allies. Maybe it would be easier to confirm a leader for that wing during this appointment, when the balance of power on the court is not directly at stake.

Still, liberals hoping for a "full-throttled" justice on the left might note that Brennan was actually often least effective when he was most passionate. With Thurgood Marshall, he dissented in hundreds of death penalty cases, a vehemence that mostly irritated his colleagues. His most strident dissents in cases such as National League of Cities v. Usery, in which he accused the majority of exercising "raw judicial power" and "sophistry," wound up alienating them. (Powell in particular came to distrust the way Brennan tried to plant seemingly innocuous language to be harvested later in more expansive opinions, warning his clerks about such Brennan chestnuts in a 1986 affirmative action case.)

So go ahead and daydream about whomever you might consider the most likely successor to Justice Brennan. Just don't expect him or her to be able to change much on the current court. The next justice may wind up frustrated for trying.

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