Common Sense and Uncommon Wisdom
A Tribute to Justice Brennan

Associate Justice William J. Brennan, Jr. ’31 died on July 24, at age 91. Until his reluctant retirement for health reasons in 1990, Brennan joyfully served on the highest court for nearly 34 years. In 1930 the death of his father almost derailed Brennan’s law school studies, but an HLSA scholarship enabled him to graduate. He returned often to the School, whether to celebrate the golden anniversary of the Harvard Legal Aid Bureau, to which he belonged as a student;to present the Oliver Wendell Holmes Lecture in 1986; or to judge the Ames finals.

We asked Professor Laurence Tribe ’66 to remark on Brennan’s legacy, drawing on his long experience as a friend of the justice and as a lawyer who argued 16 times with Brennan listening from the Supreme Court bench. "Justice Brennan voted 13 times for the position I was arguing," Tribe recalls, "and three times against."

Tribe met Brennan for the first time while clerking for Justice Potter Stewart in 1967–68. "We became increasingly good friends after he retired from the Court," says Tribe. In fact, following Justice Brennan’s retirement, he and Tribe taught together several times in seminars on constitutional law and theory at the University of Miami Law School — a collaboration Tribe called "a delight as well as an honor." An expanded version of Tribe’s remarks will appear in the November 1997 issue of the Harvard Law Review.

William J. Brennan, Jr. was one of the greatest justices of all time. But to say that is to put the matter much too abstractly. Consider what our constitutional world looked like before Justice Brennan began to reshape it: the Bill of Rights protected people mostly from federal abuses and provided only the most watered-down protection from state and local oppression. The government couldn’t seize a piece of real estate without a hearing and, if the seizure was for public use, without just compensation. But government could repossess a car or kick someone o› welfare without explaining why—or even hearing the individual’s account of the relevant facts. Racial desegregation was required in principle, but not in practice. Even the most blatant sex discrimination was immune from attack under equal protection principles. O¤cials could punish their critics by deploying libel laws in ways calculated to stifle public debate. So long as no steps were taken to punish religious beliefs as such, government could make religious practices prohibitively costly by conditioning public benefits on those practices’ cessation. And lawmakers with an interest in keeping political district lines and apportionment formulas unchanged could preserve a system in which the votes of some counted far more than the votes of others.

Through his 1,360 opinions—many of them masterpieces of reason and craftsmanship—Justice Brennan played the pivotal role in changing all that, building an enduring edifice of common sense and uncommon wisdom that transformed the landscape of America. If Chief Justice John Marshall was the chief architect of a powerful national government, then Justice William Brennan was the principal architect of the nation’s system for protecting individual rights. Intellect alone could never have achieved so much, though Brennan’s intellectual brilliance and analytical acumen were indispensable. What drove him were passion and compassion, insight and empathy, and a dream of a Constitution of, by, and for the people.

Brennan’s warm, genuinely lovable personality—he had no hint of pretension and treated the Court’s janitors with as much respect as he did his fellow justices—helped him to build bridges across ideological chasms that produced not only landmark decisions, but steppingstones to future developments in every major area of law. It is becoming commonplace to stress that the Justice’s judicial colleagues were too strong-minded to be moved by mere charm. True enough—but it trivializes the Brennan magic to reduce it to a cult of personality. Justice Brennan’s unique ability to cut to the heart of an issue in terms that spoke the language and embraced the concerns of his fellow justices was inseparable from the content of his constitutional vision, a vision that at bottom rested on the deepest respect for the dignity and views of all who participate in the dialogue of democracy—whether as welfare recipients or as Supreme Court justices. That vision is now embodied in a structure of doctrine whose edges may be blurred or chipped away, but whose core is likely to endure. Not every Brennan opinion will live forever, any more than he could. But the Brennan legacy is immortal.

-Laurence Tribe '66