The Last Liberal: Justice William J. Brennan, JR. and the Decisions That Transformed America - Kim Isaac Eisler William Brennan, appointed to the Supreme Court by Eisenhower, caused many heads to shake in wonder. He was an unknown. Not especially bright, he had to work hard for his good grades in high school, and at Harvard Law School, he made only Legal Aid Society, reserved for middle-tier students. His father had been a hard-driving reformer in Newark, known for uncompromising honesty, who got his start reforming the Boilermen's union after he suspected the union bosses of lining their own pockets rather than helping the working man. Following that, he was upset with graft in the police department, so he campaigned for a change in government structure and then was elected as one of the city commissioners in charge of police and fire departments where he proceeded to clean them up. He was not always popular with his charges, fighting against early retirement possibilities, arguing that all people wanted from their police and fire was 100 cents worth of work for every dollar in taxes spent. On the other hand, he pushed through pay raises almost doubling their salaries. He died relatively young, leaving the young Brennan junior to pay for his last year of law school and help provide for the other children in the family. Brennan senior had taken no graft and spent almost his entire income so there was nothing left at his death.

Ironically, given his father's love of labor and support for the working man, his son's first job must have had him rolling in his grave. The large antilabor firm of Pitney, Harding and Ward had been a bastion of corporate waspishness. Only Princetonians made partner and non-Protestants need not apply. As the firm grew older, they realized they needed to reach out and so they began to look at Harvard for prospective employees and William was hired, despite his undergraduate degree from my alma mater. So in order to make money and help support the family, Brennan was reduced to creating innovative ways to break strikes and punish employees.
The 1930's, however, were a time of great ferment in labor relations. With the passage of the Wagner Act in 1935, litigation between employees and unions and corporations was feverish and Brennan, as the son of a respected labor advocate, moved easily between the groups, a distinct advantage for a litigator. He was soon so invaluable to the firm they had no choice but to name him as their first Catholic partner. On the other hand, Brennan's major client was Johnson and Johnson, run by Robert Wood Johnson, who was known for his enlightened treatment of workers, even going so far as to pay them more than the minimum wage. Johnson had also been tapped to run a major office of the War Department, and in 1942 decided he needed to bring along his young attorney, William Brennan. His role in the Ordnance Department was to deal with labor issues. One issue that was to surface years later in the Nixon recording incident, was during the investigation of Ordnance Department procurement tactics. Brennan had been using a recording device to record conversation on the telephone and as able to use these recordings to substantiate his claim that he had been forced to make certain decisions. This lead to his exoneration of charges against him. When the question of the impropriety of recording conversations was raised, he belittled the concern. Civil liberties had yet to become a major preoccupation of his.

After the war, Brennan was tapped to become a superior court judge in New Jersey by Arthur T. Vanderbilt. This was a considerable step down in salary, and Brennan had several families to support (his mother and sister in addition to his own growing clan.) But Vanderbilt who was intent on reforming New Jersey courts, which had become clogged and riddled with corruption, took the recommendation of his friend Nathan Jacobs very seriously and promised Brennan that he would some day become a Jersey Supreme Court justice, so Brennan left the corporate firm where he had become the best income earner. He plugged away at the court system and through hard work managed to bring consistency and honesty to the courts in Hudson County, breaking the grip of a long-time machine politician.

It was after several years on the New Jersey Supreme Court that Brennan broke with his mentor Vanderbilt who had become increasingly conservative and narrow as chief justice. In New Jersey v Tune, Brennan wrote a vigorous dissent in a 5-4 decision related to the rights of an accused to see evidence that had been collected against him. In civil cases, both sides are entitled to see what the other side has available to them and Brennan was incensed that Tune was not permitted under the ruling to see a confession that he had purportedly dictated to an officer, something that would not have been denied to a civil defendant. That Tune was facing the death penalty made it even more egregious. It was the first evidence of Brennan's foray into the world of fairness.

His selection for the Supreme Court was so diferent than what we have witnessed in the last couple of decades. The Catholic Church, notably Cardinal Spellman, [see Ameerican Pope:] had been vociferous in lobbying for a Catholic spot on the court which had been vacant for some time. Eisenhower's Chief Advisor for Legal Affairs Brownell knew Vanderbilt, discovered Brennan was Catholic (Spellman insisted on checking with Brennan's parish priest to make sure he was a "good" Catholic," and following a short meeting with Eisenhower at which they discussed hats and the weather, Brennan was nominated to succeed Minto who had resigned for health reasons. I suspect that kind of religious lobbying would be frowned on today. Then again, we have a Catholic majority on the court. Ironically, Spellman was furious at the appointment because Brennan didn't owe him and favors and thus couldn't be controlled. He had not been consulted.

Once on the court -- his was a recess appointment, only rarely used -- he became subject to intense lobbying by Felix Frankfurter, icon of judicial restraint, but Frankfurter was pedantic in his efforts and soon had Brennan fuming. Earl Warren, on the other hand, a consummate politician who intended to use the court to right society's wrongs, soon became a close friend and mentor (Brennan was fifteen years his junior.) When confirmation hearings finally rolled around after he was two-thirds of the way through his first term, he was confronted by a hostile Senator McCarthy and the way Brennan handled McCarthy was not only brilliantly obfuscatory (Sotomayor and Roberts would have been proud,) but hysterical as well (see pages 114-115.) McCarthy was fit to be tied by his answers. But he was generally "soggy" overall.

Brennan was soon taken under the wing of Chief Justice Warren and Warren began assigning him opinions to write. His first major blunder was Jencks in which he went beyond the scope of the case (he required that all documents held in secret government files be turned over to the defendant for review in a "red scare" case). It was a decision he was to regret because Tom Clark, a dissenting justice, excoriated him for "opening" up secret FBI files to the "Commies." Had he written the opinion in a more narrow manner, it is unlikely Congress would have gone off the deep end and challenged the court's ruling. Another case (Roth he later came to rue was one with regard to obscenity which provided us with the infamous "community standards" non-standard. Trying to draw a line between "prurience" and "art," his opinion was muddled and later in he specifically enunciated his disdain for the earlier decision.

Aaron v Cooper, the case that hammered home the supremacy of the Supreme Court in interpreting the Constitution, was written by Brennan. Gov. Faubus of Arkansas was refusing to permit integration in the state and was trying to propose the novel idea that the governor of a state could decide what was opr was not constitutional. His attorney general argued that the threat of violence should persuade the court to suspend its previous judgment and delay integration. For twenty years court watchers wondered why the wording of the opinion used the word desegregation instead of integration. Brennan revealed years later that it was a suggestion from Richard Harkness, an NBC correspondent and Brennan's next door neighbor.

I could go on. The book is packed with interesting anecdotes and detail. Wonderful book about a wonderful justice. One quote I especially liked was "Brennan loved people, unlike Douglas of whom it is said he loved humanity but hated people."

The oral arguments of Aaron v Cooper can be heard and downloaded at http://www.oyez.org/cases/1950-1959/1958/1958_1