William J. Brennan (1906–1997)


Many legal scholars consider William Brennan to be one of the greatest Supreme Court justices of the 20th century. Liberals praise him as an architect of social change, a champion of civil liberties, and a protector of minority rights. Conversely, conservatives view Brennan as the epitome of “judicial activism,” a justice who extended the power of an overreaching judiciary into matters best left regulated by popularly elected legislative bodies. Yet, both supporters and critics agree that he was one of the most influential jurists in recent history. This entry summarizes his life, his career, and his impact on the Court.

Early Years


Brennan was born on April 25th, 1906. The son of Irish immigrants, he grew up in a working class family in Newark, New Jersey. Brennan’s father was a leader in the labor movement and an advocate of municipal government reform who passed his sense of social responsibility on to his son. Brennan was an outstanding student in high school, and he went on to graduate with honors from the prestigious University of Pennsylvania Wharton School of Finance. He worked his way through Harvard Law School, where he graduated in the top 10% of his class.
After law school, Brennan was hired by a prominent Newark law firm, at which he specialized in labor and employment law. During World War II, Brennan enlisted in the army and served on the staff of the undersecretary of war as a labor relations troubleshooter. He was awarded the Legion of Merit for his distinguished service in the military. At the end of the war, Brennan returned to his old law firm. Not completely satisfied with private practice, Brennan branched out and became actively involved in a campaign to reform the New Jersey state court system. Brennan was appointed as a Superior Court judge, and the attention he attracted as part of the judicial reform movement helped lead to his rapid rise from trial court judge to justice on the state supreme court.

On the Bench


During his tenure as a state court judge, Brennan impressed Arthur T. Vanderbilt, chief justice of the New Jersey Supreme Court and an influential insider in Republican political circles. When Sherman Minton retired from the U.S. Supreme Court in 1956, Vanderbilt and other party leaders recommended to President Dwight Eisenhower that Brennan be nominated to fill the vacancy. During the fall election campaign, Eisenhower nominated Brennan as a “recess” appointment to the Court in what some cynics viewed as an attempt to win the Roman Catholic vote. Brennan was a registered Democrat, but he was not actively involved in party politics. Although he had been an outspoken critic of McCarthyism, Brennan had earned a reputation as a nonpartisan judge. In March 1957, the Senate confirmed his appointment, with Senator Joseph McCarthy casting the sole dissenting vote.
As a new associate justice, Brennan joined the liberal wing of the Warren Court, which for most of the 1950s and 1960s constituted a solid majority. Eisenhower allegedly remarked that the appointments of Earl Warren and William Brennan were two of the biggest mistakes he made as president. However, in many instances, Brennan was more of a centrist than colleagues such as Hugo Black and William O. Douglas, and in his early years, he dissented less than any member of the Court. Chief Justice Warren and Brennan developed a close friendship and working relationship. Some commentators considered Brennan to be Warren’s “first lieutenant” and the justice to whom he most often turned to build consensus and maintain a majority in support of the Court’s opinions.

Supreme Court Record


Justice Brennan was assigned to write opinions in landmark cases, some of which directly and others indirectly impact on the law of education. His opinion in Baker v. Carr (1962), deciding that the issue of legislative reapportionment was not a nonjusticiable political question, paved the way for subsequent decisions establishing the principle of “one person, one vote.” In New York Times v. Sullivan (1964), he opened the door for more robust criticism of the government by finding that public officials may not recover damages for allegedly defamatory remarks, even if false, unless it can be shown that the statements were made with “actual malice,” that is with either knowledge of their falsity or with reckless disregard for the truth.
Brennan was a strong supporter of school desegregation, and he voted against attempts by school boards to maintain racially segregated schools in all of the major decisions post–Brown v. Board of Education of Topeka (1954). In Keyes v. School District No. 1, Denver, Colorado (1973), he authored an opinion that declared that a finding of de jure segregation in one part of a school district was presumptive proof that the entire system was unlawfully segregated.
Brennan also was a proponent of affirmative action as a remedy for past racial discrimination. His concurring opinion in Regents of the University of California v. Bakke (1978) approved the university’s race-conscious policy for admission to its medical school. In United Steelworkers v. Weber (1979), he authored the Court’s opinion, which upheld the use of voluntary affirmativeaction programs in the private sector. In Metro Broadcasting v. Federal Communications Commission (1990), he wrote the majority opinion, which permitted federal affirmative-action programs designed to increase minority ownership of broadcast licenses.
Justice Brennan was a passionate advocate of gender equality. He publicly supported passage of the Equal Rights Amendment, and he argued that discriminatory treatment of women should be subject to the same “strict scrutiny” as discrimination on the basis of race. Although he was unsuccessful in convincing a majority of the Court to accept strict scrutiny, he did succeed in the Oklahoma 3.2% beer case of Craig v. Boren (1976) in getting the justices to apply a heightened standard of review in gender discrimination cases. The Court adopted the so-called mid-level test, requiring that actions discriminating against women be substantially related to the achievement of important government objectives in order to be upheld.

Religion and Education


In First Amendment Establishment Clause cases, Brennan took a position of strict separation between church and state. He consistently voted against schoolsponsored prayer and opposed public government assistance to religiously affiliated nonpublic schools. In two cases that have since been essentially overruled, Aguilar v. Felton (1985) and School District of Grand Rapids v. Ball (1985), he authored the Court’s opinions striking down programs providing for state-supported remedial instruction and shared-time education of students in private schools. In Edwards v. Aguillard (1987), he wrote the majority opinion, which maintained that Louisiana’s Balanced Treatment Act requiring “equal time” for the teaching of evolution and creation science was unconstitutional.
Justice Brennan voted to uphold the rights of religious minorities in First Amendment Free Exercise Clause cases. In Sherbert v. Verner (1963), he penned the Supreme Court’s opinion in reasoning that denying unemployment compensation benefits to a woman who refused to work on Saturday violated her right to religious freedom. In so doing, Brennan enunciated the Sherbert balancing test. Under this test, once a claimant establishes that government action has imposed a burden on the free exercise of religion, the burden shifts to the government to demonstrate a compelling state interest sufficient to override the infringement on religion. Although the Court essentially overruled Sherbert in Employment Division, Department of Human Resources of Oregon v. Smith (1990), many members of Congress and legal scholars still believe that it should be the proper standard in First Amendment Free Exercise Clause analysis.

Free Speech


Brennan believed in the principles of freedom of speech and the right to political dissent. In Keyishian v. Board of Regents (1967), he struck a blow against loyalty oaths. Writing for the Court, Brennan noted that New York statutes and administrative regulations preventing the employment of “subversive” faculty by state universities, and providing for their dismissal if found guilty of “treasonable or seditious” acts, were unconstitutional.
Brennan maintained that the right to freedom of speech applied to students. He joined the majority in Tinker v. Des Moines Independent Community School District (1969), upholding the right of students to wear black armbands protesting the war in Vietnam. He dissented in Hazelwood School District v. Kuhlmeier (1988), in which the Court upheld the censorship of an objectionable article in the school newspaper. In Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982), Brennan’s plurality opinion asserted that the First Amendment imposes limits on the discretion of school boards to remove books that some parents might find to be objectionable from public school libraries.

Other Issues


Justice Brennan generally took an expansive view of the rights of students and teachers with disabilities. In School Board of Nassau County v. Arline (1987), he authored the Court’s opinion holding that a person suffering from the contagious disease of tuberculosis could be a handicapped person within the meaning of Section 504 of the Rehabilitation Act of 1973 and that the plaintiff, an elementary schoolteacher, was such a person.
In one of his last major majority opinions, Texas v. Johnson (1989), Brennan authored the Court’s order against an anti–flag-burning statute. He observed that, “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).

Legacy


Although Brennan exerted his greatest influence during the Warren Court era, he continued to play an important role in the Burger Court period as well. Yet, as the makeup of the Court changed once William Rehnquist was appointed as chief justice, Brennan became a member of the minority. While he could occasionally pull together a majority through the force of his personality and persuasive skills, as in Metro Broadcasting, in his later years on the Court, Brennan frequently played the role of dissenter. Frustrated and in increasingly poor health, Brennan retired from the Court in 1990 and died in 1997.
William Brennan left a lasting legacy on American constitutional law. His view of the Constitution as a “living” document that should evolve through time and be responsive to changing conditions and current needs of America is praised by many who see the document’s adaptability as its greatest strength. Others view his career less favorably. Critics view Brennan as a justice who reached decisions based on his own personal policy preferences rather than the literal language of the Constitution or the original intent of the founding fathers. Regardless of how Justice Brennan is viewed ideologically, his jurisprudence, especially in First Amendment free speech and religion cases, significantly shaped modern school law.
Michael Yates

See also Affirmative Action; Burger Court; Creationism, Evolution, and Intelligent Design, Teaching of; Rehnquist Court; Warren Court
Further Readings
  • Eisler, K. I. (1993). A justice for all: William J. Brennan, Jr., and the decisions that transformed America. New York: Simon & Schuster.
  • Irons, P. (1994). Brennan v. Rehnquist: The battle for the Constitution. New York: Knopf.
Legal Citations