Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 22, 1990 TAG: 9007220113
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: LINDA GREENHOUSE THE NEW YORK TIMES
DATELINE: WASHINGTON LENGTH: Medium
His retirement leaves a gap far bigger and presages a change on the court far more profound than might be supposed from his being only one vote out of nine, and in recent years often a dissenting vote at that.
Brennan's vote was critical in the last few years in preserving the court's dwindling margin in favor of continued recognition of a constitutional right to abortion and on the separation of church and state, among other issues.
In each of the last two terms, he wrote opinions for a 5-4 majority affirming a constitutional right to burn the American flag as a political protest.
Although he was never chief justice, Brennan was a dominant force on the court for his entire tenure of nearly 34 years, leaving a legacy that outstrips that of many of the men who gave their names to the court's judicial eras.
"From his appointment on, he was the court's central figure," said Mark Tushnet, a law professor at Georgetown University.
Referring to the tenure of Chief Justice Earl Warren, with whom Brennan served for 13 years during a period of dramatic expansion of the role of the federal courts in protecting individual liberties, Tushnet said:
"People call it the Warren Court, but in many ways it was the Brennan Court. On all the key issues, he put together the coalitions and persuaded the others."
Another Supreme Court scholar, Leon Friedman of Hofstra University Law School, said:
"Warren may have been the conscience and the spirit, but Brennan was really the brains and the presence behind the Warren Court's initiatives."
Throughout his tenure, Brennan was an ardent defender of the view that the essential meaning of the Constitution is to be found in the modern age, not in a search for the original intentions of its 18th-century framers.
"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," he said in a speech at Georgetown University in 1985.
This view put him at odds with judicial conservatives who believe that departure from the framers' understanding of the Constitution is an illegitimate use of federal judicial authority.
To some, Brennan symbolizes all that is wrong with the "activist judiciary." William Bradford Reynolds, the Justice Department's top civil rights official under President Reagan, said in a 1986 speech that Brennan advocated a "radical egalitarianism," which Reynolds called "perhaps the major threat to individual liberty" in the United States.
In the early days of the Warren Court, Brennan dissented less than any other member of the court.
In recent years, as the influence of conservative justices grew, he became one of the court's most frequent dissenters.
But through a combination of intellectual force, a magnetic personality and an unwavering commitment to his vision of the court and the Constitution, he remained a center of gravity.
Term after term, he demonstrated his ability to score the unexpected victory or at least to shape outcomes that he no longer had the votes to control.
The final day of Brennan's last Supreme Court term was an illustration of what he could still accomplish, and of what he could not.
On that day, June 27, he announced his opinion for a 5-4 majority in an important case affirming the constitutional power of Congress to devise programs that favor blacks and other minorities.
The outcome was the major surprise of the term.
Justice Brennan's opinion, Metro Broadcasting vs. Federal Communications Commission, was a triumph of judicial craftsmanship aimed at holding the two justices, John Paul Stevens and Byron White, who appeared inclined on the basis of their votes in similar cases to vote the other way.
But at the same time, Brennan filed bitter dissents in two death penalty cases in which the court, by 5-4 votes, upheld the Arizona death penalty statute and further cut back the ability of federal courts to supervise state courts' implementation of capital punishment.
Throughout his tenure, Brennan was a strong opponent of the death penalty. He believed that his position would ultimately be vindicated by a changed political consensus.
"I hope to embody a community striving for human dignity for all, although perhaps not yet arrived," he said in a 1985 speech.
In recent years, the court moved farther from his position rather than closer to it.
During the term that just ended, Brennan and Chief Justice William Rehnquist, most often the leader of the court's conservative bloc, were on opposite sides in all but one of the 37 cases decided by 5-4 votes.
by CNB