William Rehnquist was in many ways Brennan's antipode, as fiercely conservative as Brennan was liberal, yet as intellectually capable and, at times, as charmingly friendly. But even as Brennan's admiration for Rehnquist's intellect comes through in the memos of the Burger years, so too does his distaste for his colleague's behavior and integrity. Brennan recorded in his histories a number of instances in which Rehnquist misrepresented the record in cases. Probably as a result, one senses in Brennan's memos a deepening distrust for his colleague.
By 1976, Brennan described Rehnquist's contribution to a contraception case in dismissive terms. "The vehemence of the dissent," Brennan's memo for that term notes, "did not surprise us, but the absence of a reasoned attack did." By 1978, even the absence of reason from Rehnquist would not surprise Brennan. A case posing the question of the right to counsel in misdemeanor trials left Brennan on the losing side but, his memo for that year states: "I find some consolation … in the hope that [Rehnquist's] decision in this case is so unprincipled and inherently unstable that it will prove only a temporary setback in the line of decisions developing the right to counsel under the Fifth and Sixth Amendments."
In the privacy of the justices' weekly conference, Rehnquist had a tendency to drift beyond pungent. In 1981, the court accepted a case that tested the limits of its commitment to equal protection under the 14th Amendment. The case, Plyler v. Doe, challenged a Texas law barring children of illegal immigrants from attending public schools, enforcing that bar by withholding state funds used to educate any child not "legally admitted" to the United States.
In conference, as the case history notes, the justices squared off to their familiar positions: Brennan believed the Constitution extended equal protection to all people, including children of illegal immigrants. Marshall sided with him. Burger confusingly compared the right to an education with the right to receive welfare ("as if that was the issue," Brennan's history of the case notes grumpily), but White joined the chief justice. Blackmun and Powell joined Brennan's side. The most startling remarks, however, came from Rehnquist. He emphasized that many of the children demanding an education were not 5 or 6 years old but, rather, those who'd come to the country on their own. At conference Rehnquist referred to those illegal immigrants, shockingly, as "wetbacks."
Marshall had heard his share of slurs over the years—much of his career, after all, was in the practice of NAACP law in the Deep South, below what he called the "Smith and Wesson line." But to hear such an epithet in a conference of the U.S. Supreme Court was more than he could bear. Marshall exploded at Rehnquist, who lamely attempted to defend himself by saying in his part of the country the term wetbacks still had "currency," as Brennan recalled it. Marshall fumed that by the same reasoning, he'd long been called a nigger.
Even after that, Rehnquist did not let up on Marshall. The following year, Marshall delivered a spirited presentation at the conference in favor of staying an execution so the court could consider the appeal of a black defendant convicted in the murder of a Texas used-car salesman. As Marshall attempted to persuade his colleagues, Rehnquist interrupted him: "You can turn off the tears now." Marshall demanded an apology; Rehnquist refused. The defendant, Charlie Brooks, was executed.
As Brennan searched for ways to construct a majority, he took a particular interest in Sandra Day O'Connor, who arrived in 1981, fulfilling Ronald Reagan's pledge to put the first woman on the Supreme Court. Early in her first term, Brennan sized her up and spied what he thought was an opportunity: "I viewed her at that time as potentially an independent 'swing' vote on the Court," his 1981 memorandum states, prophetically.
But Brennan disagreed with her in an early case and soon came to regret it. O'Connor had voted with Brennan's side during the conference discussion of a challenge to a Texas law regulating legislators and elections. Brennan wrote for the majority, but his opinion went further than O'Connor was prepared to go. She withdrew her support and joined the other side, giving it a majority. Bad enough to lose the case, but Brennan was even more concerned about what it foretold: "Perhaps the most troubling part of the history of this case is the change it signified in my relationship with Sandra," the history states. "It turned out that Clements was the beginning of a consistent pattern for the rest of the term. From March forward Sandra did not join a single opinion that I wrote for the Court during that term. … "
Brennan persisted with the charm offensive, however, even after O'Connor wrote a blisteringly anti-abortion opinion in her second year. In close cases, he often wrote with O'Connor's vote in mind. He strategized with his clerks about how to win her support, and sometimes this pursuit pushed her away.
Part V—The Legacy of Earl Warren and William Brennan
Brennan did not always win in the Burger years. His early victories over capital punishment gave way to defeat in 1976, and the march to the gas chamber and electric chair resumed, to Brennan's anguish. His histories of those death cases show the justices in wrenching, often angry debate. Similarly, in the areas of criminal justice and the rights of suspects and defendants, Brennan's rear-guard action often more closely resembled a tactical retreat, as he fought to retain the broad principles established by the Warren Court against colleagues determined to wear down or overturn those earlier rulings.
That was particularly evident in the sustained conservative attack on Miranda, the Warren-era decision requiring police to inform suspects of their rights during interrogation. Throughout the Burger years, the court, over Brennan's objections, carved out exceptions to the rule as laid down by Warren, and flirted with overruling that case directly. Still, while Brennan lost ground on the specifics, he held the wall on Miranda itself, sometimes to his own surprise. In a 1975 dissent, Brennan, joined by Marshall, predicted that the court's erosion of Miranda was a step toward its ultimate "overruling of Miranda's enforcement of the privilege against self-incrimination." Thirty-one years later, that privilege survives.
Brennan's successes were largely the result of his painstaking efforts, intellectual and political. Sometimes, he just got lucky. In early 1986, the government came to court to ask the justices to limit the right of two suspects to claim the spousal privilege—the right not to testify against one's spouse—because, the government alleged, they were not just husband and wife but co-conspirators. At their conference to discuss the case, the justices dumbfounded Brennan by voting 7-2 not just to create an exception to the privilege in that case, but to abolish the privilege altogether. Burger then assigned the opinion to O'Connor (her clerk complained to Brennan's that O'Connor's chambers had expected to get the opinion since it was just like Burger to treat a spousal immunity claim as a "girl's case."). But before O'Connor could get to work on the opinion, the U.S. government traded the defendants to the Soviet Union as part of the prisoner swap that freed Soviet dissident Anatoly Scharansky. That rendered the case moot, to Brennan's immense relief. "The parties," his case history notes, "never had any idea that there was a Court to abolish the spousal privilege."
By the time Warren Burger retired that summer, Brennan had stood his ground for more than a decade. He would lose some of that ground during the Rehnquist years, and illness eventually forced his retirement in 1990. By then, however, the superstructure Brennan had helped erect around the Warren Court's work would prove stubbornly difficult to dismantle. Roe survived the Burger Court, as did the underlying principle of constitutionally protected privacy. So did affirmative action. So did the First Amendment bulwarks of a free press.
Given the limited access to the Brennan case histories, lawyers, journalists, and scholars have been left with an incomplete understanding of the patient brokering required to achieve a majority in areas as far-flung as the Nixon tapes and affirmative action, free speech, voting rights, and abortion. With the case histories in hand we can begin to see for ourselves how Brennan worked with the tools of patience, charm, and persuasion.
Judge Raymond C. Fisher, who clerked for Brennan in the 1967 term and remained close to him afterward, is among the many who admires the justice's record and one of the few who appreciates what it took to achieve it. "Brennan was friendly, he was collegial, but he thought strategically," Fisher says. "He looked at the evolution of the law, where it was going and where it ought to go."