Given that Justice Brennan would have turned 105 this week on April 25, it was fair to assume all of his contemporaries have long since left the federal bench.

That is, until I read this recent Associated Press profile of  Wesley Brown, a 103-year-old U.S. District Court judge in Wichita, who was born in 1907 — just a year after Brennan.

First appointed by President Kennedy 49 years ago, Brown took senior status in 1979 but continues to hear cases thanks to a motorized wheelchair and an oxygen thank. The AP’s Roxana Hegeman notes Brown still leaves “legal colleagues awestruck by his stamina and devotion to work.”

Whether the presence of geriatric judges on the federal bench is desirable is debatable but there’s no denying it’s becoming more frequent. In a story earlier this year detailing the problems aging judges can cause, Slate noted that 12 percent of the nation’s 1,200 sitting federal trial and circuit court judges are 80 or older and eleven are over the age of 90, compared to four 20 years ago.

 

I’ve noted before how often current law students comment about coming across Justice Brennan’s opinions in their casebooks.

Most recently, a law student in Boston noted on Twitter, “why did Justice Brennan have to write so much… more to read lol #lawschool #civpro

Now, a political science professor has now come forward with evidence that Brennan is in fact one of the most frequently cited justices in constitutional law casebooks.

Steven B. Lichtman, a Shippensburg University professor, analyzed the eighteen leading constitutional law case books and discovered that Brennan was the justice with the third most excerpted opinions. (He finished behind top ranked John Paul Stevens and the late Chief Justice William H. Rehnquist, who came in second.) (more…)

Brennan Society Rises in the Sooner State

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A new progressive group in central Oklahoma designed to “promote progressive ideals, issues and candidates” has named itself the “Brennan Society” in honor of Justice Brennan.

There are plenty of legal lectures, awards and groups named after Justice Brennan but this was the first overtly political group that took him as their inspiration. So I contacted Tom Guild, one of the organizers, who helped found the group last September, to find out what prompted them to bestow this particular honor.

“Justice Brennan is our role model,” Guild, a former University of Central Oklahoma political science professor, explained in an email. “He was able to put together coalitions on the court to promote one man, one vote, women’s rights, the right to privacy, racial integration, social justice and led the court in taking many other important steps forward … We intend to try to build on the progress that he achieved for our country.  He is a progressive giant and a role model for our group.”

In “another tip of the hat” to Brennan, Guild said the governing board for the organization consists of “nine justices.”

Justice Brennan himself got turned off to electoral politics at an early age after watching his father being attacked for how he handled enforcement of Prohibition as the city commissioner in Newark, NJ, overseeing the city’s police and fire departments.

Steve is scheduled to speak about Justice Brennan: Liberal Champion at the University of Oklahoma’s law school in Norman on April 4 thanks to the efforts of another one of the Brennan Society’s organizers, Alex Wilson, who is a student there.

Wilson says he became “an avid” Brennan fan after taking constitutional law there during his first semester at the law school.

Fugazi’s Musical Tribute to Justice Brennan

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Of all the tributes Justice Brennan received after his retirement in 1990, the most unusual might have been a song written in his honor by the punk-rock band Fugazi.

The band from Washington D.C. included the song “Dear Justice Letter” on its 1991 album “Steady Diet of Nothing.” The lyrics include:

Justice Brennan, I know it’s not your fault,
No baby no baby.
It’s just that you’re busted and dripping,
Your sorry lungs are all leaking,
It’s not over, it’s not over, I said.

I I didn’t know anything about this until Steve and I spoke last month at the Duke University School of Law last month where Professor Jed Purdy played the song for us in his office before moderating our discussion. (more…)

Brennan Clerks Tapped for Top Justice Posts

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President Obama on Monday announced plans to nominate Donald Verrilli to be Solicitor General, the second Brennan clerk selected for a top Justice Department post this year.

Earlier this month, the White House announced Virginia Seitz would be the president’s second nominee to head the Office of Legal Counsel, which hasn’t had a leader confirmed by the Senate in seven years.

Verrilli had argued 12 cases before the Supreme Court as a litigator at the Jenner & Block law firm in Washington before joining the Obama administration as an associate deputy attorney general, according to the White House press release announcing his nomination. Verrilli currently serves as deputy White House counsel. Elena Kagan stepped down from the Solicitor General’s job to take a seat on the opposite side of the justices’ bench.

It will be interesting to see whether Republican senators make Brennan an issue during the confirmations of Verrilli and Seitz just as Thurgood Marshall became a focus of GOP questions last year during the confirmation hearing for Kagan, his former clerk.

Jeff Sessions, R-Ala., invoked Brennan during the confirmation of Gerard Lynch, one of his former clerks nominated to the U.S. Court of Appeals for the 2nd Circuit in 2009.

If confirmed, Verrilli and Seitz would join FCC Chairman Julius Genachowski as the Brennan clerks with the most senior appointments in the Obama Administration. But unlike under President Bush, who tapped Michael Chertoff to be his second Homeland Security secretary, no Brennan clerk has joined Obama’s cabinet as of yet.

Brennan’s Bust: Correcting the Record

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In September, I wrote about a bust of Justice Brennan displayed outside the New Jersey Supreme Court’s courtroom in Trenton. I noted, “The bust rests on sculptured version of several volumes of what are labeled the ‘Supreme Court Reporter.’” Turns out I was wrong to suggest “the numbers the sculptor etched into the volumes are completely random.”

Jon Bailey, the artist who made the sculpture, posted a correction on the blog last week and we exchanged emails in which he explained the citations weren’t random at all. After deciding that he wanted the bust to appear on a stack of books, Bailey asked the Brennan Center for Justice for suggestions about the justice’s most influential opinions.

“84 S. Ct. 210″ depicts the volume of the Supreme Court Reporter containing Brennan’s decision in New York Times v. Sullivan while “82 S. Ct. 691″ is the volume with his decision in Baker v. Carr.

I had incorrectly looked for the volume of the U.S. Reports containing those citations and wound up finding cases from the 19th century. Bailey explained he intentionally referenced the Supreme Court Reporter “since I thought the non-lawyer would see ‘Supreme Court’ in the name and understand their purpose more readily.” (more…)

Justice Brennan Trails in Blawg 100 Vote

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Whether it qualifies as a shellacking or a mere thumpin, the Justice Brennan blog is stuck in last place in the ABA Journal‘s Blawg 100 “Court Watch” category.

Granted, there are only five sites in this category and everyone is losing by many multiples to SCOTUSblog. But we have consistently trailed behind the other two entries in the back of the pack: National Review Online’s Bench Memos blog and Josh Blackman’s Blog. (Mike Sacks’ First One @ One First blog seems to have a comfortable hold on second place.)

The ABA Journal described our blog as, “More than a companion to Seth Stern and Stephen Wermiel’s new biography of the late justice, this is an ex­ploration of how the appointee of President Dwight D. Eisenhower remains relevant decades after he left the court.”

Pulling out a victory here against SCOTUSblog would probably require the kind of vote rigging Justice Brennan knew well from sitting as a New Jersey state judge in Jersey City, home of Frank Hague’s political machine. Hague was famous for his ability to rack up votes from people who had long since moved out of Jersey City – or died.

But I wouldn’t encourage any vote rigging on our behalf between now and when the ABA Journal’s polls close at the end of the month.

Justice Brennan: Liberal Champion is getting some additional attention in the January issue of the ABA Journal. It’s included as one of four “must reads” about the Supreme Court published in 2010.

Drama on the New Jersey Supreme Court

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Things have gotten kind of messy on the New Jersey Supreme Court, where Justice Brennan served prior to joining the nation’s highest court in 1956.

Under New Jersey’s constitution, new state Supreme Court justices initially serve a seven-year term and then can be reappointed and attain “life” tenure. (Life tenure doesn’t quite mean what it does on the U.S. Supreme Court since New Jersey justices are subject to mandatory retirement at age 70.)

Until this year, every justice appointed under this system since the adoption of the state constitution in 1947 had been subsequently granted life tenure, as the Bergen Record explained in an editorial last week. But in May, New Jersey’s new Republican governor Chris Christie declined to reappoint Justice John Wallace, who at 68 was two years away from mandatory retirement anyway.

(more…)

Justices Embrace Newfangled Technologies

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C-SPAN on Sunday will air the first television interview with Elena Kagan since she became a Supreme Court justice.

The big revelation in excerpts released so far is that she likes to read briefs on her Kindle while her colleague Antonin Scalia prefers the iPad.

Justice Brennan never took to computers during his tenure, but he wasn’t entirely detached from technological developments. He eagerly embraced the VCR he received for Christmas in 1981.

Brennan passed up the chance to get a stash of the latest movie releases a  few weeks later. In January 1982, he received a letter from an executive at RCA who was friends with some of Brennan’s former clerks.

“I was told that your favorite Christmas present was the RCA videodisc player,” the RCA executive wrote. “I was absolutely delighted and am sending you a few more discs to enjoy.” (more…)

Justice Brennan got a shout out Thursday from the chairman of the House Judiciary Committee at the start of a hearing on constitutional issues raised by Wikileaks.

John Conyers, the Michigan Democrat whose four-year tenure as chairman will soon come to an end, began his opening statement by quoting from Brennan’s opinion in the 1989 Texas v. Johnson flag burning case.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Brennan wrote.

In the written version of his opening statement prepared for delivery, Conyers added “That was Justice William Brennan, a man who understood the founding principles of our nation.” (I only heard him say, “That was Justice William Brennan” at the hearing.)

The seven witnesses appearing at the hearing included Geoffrey Stone, the University of Chicago law professor who clerked for Brennan. But Stone didn’t include any references to his former boss in his written or verbal testimony.