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.

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…)

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.


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.

Justice Brennan’s Job Satisfaction Circa 1966

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The latest issue of Harvard Law School’s alumni magazine has an article I wrote about Justice Brennan’s rocky relationship with his alma mater early in his tenure on the Supreme Court.

Accompanying the article is one of my favorite little finds Steve discovered amongst Justice Brennan’s papers which we had to relegate to a footnote in the book.

In 1966, Harvard Law School sent a survey to alumni asking them to answer a series of questions about their career. Brennan kept a copy of his responses in his files.

For the question, “Are you satisfied with your present work?” Brennan checked “very satisfied” – the highest rating. When asked what satisfied him in his work, Brennan marked off “subject matter,” “intellectual stimulation,” “independence,” “people with whom I work,” “variety of work,” “organization for which I work,” and “importance of problems.” He did not check “high prestige of profession,” “helping people,” “high income” – or, least surprisingly, “opportunity for advancement.”

Brennan High School Dedicated in Texas

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Members of Justice Brennan's family cut a ceremonial ribbon at the dedication of William J. Brennan High School in San Antonio

I finally had a chance to watch a video of the  Nov. 10 dedication ceremony for William J. Brennan High School in San Antonio.  As I previously mentioned, the Northside Independent School District, which names every new high school after a Supreme Court justice, decided to honor Justice Brennan when it opened its newest school this fall.

The ceremony featured appearances by two members of Justice Brennan’s family: his namesake grandson, William J. Brennan IV and his daughter in law, Georgie Brennan. Also in attendance was Brandon Fathy, who, as a seventh grader, wrote the essay convincing the school district to name the school after Brennan. Fathy’s essay was reprinted in the program handed out to attendees.

“Yesterday, I sat next to a good young man who was African-American and who helped me with my homework,” wrote Fathy, who is now a sophomore at Brennan High School. “Then that same day, I went to the library and looked through hundreds of books, and later that day, I rode the bus home with an African American riding beside me. That night I watched the police read the Miranda rights on TV. These almost common events may not have happened if it weren’t for William J. Brennan Jr.” (more…)

Another Take on Brennan’s Dissents

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In October, I highlighted law students complaining about the frequency and length of Justice Brennan’s dissents. As the semester progressed, I came across others with a more positive view of Brennan the dissenter.

First, I saw a post by Jeryl Hayes on Facebook that read, “Justice Brennan, why couldn’t you have lived forever and remained the voice of reason on the Supreme Court?”

I wrote Hayes asking what prompted that post and received a reply a few days later. Hayes, a law student at Washington University in St. Louis, explained she wrote the post while reading several of Justice Brennan’s gender discrimination decisions, including a dissent in Geduldig v. Aiello.

“I actually drew little hearts around his name for this one,” Hayes wrote. “For most of those cases, and especially in his dissent, he covered the same arguments I made in my head while reading the case.”

She added, “Basically, I adore Brennan’s ideology and craft for opinions, and at the time I wrote that post, I felt the need to share it with all my friends (and expose how much of a law school nerd I actually am).” (more…)

Brennan, Stevens and the Death Penalty

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I wrote a piece for Huffington Post yesterday on John Paul Stevens’ headline-making book review and 60 Minutes appearance this past weekend. Stevens explained how he went from supporting capital punishment at the time he joined the U. S. Supreme Court to concluding it is unconstitutional.

I noted Justice Brennan might have felt some measure of vindication had he lived long enough to witness Stevens emerge as a forceful opponent of the death penalty. But it certainly wouldn’t have surprised Brennan, who joined Thurgood Marshall as the Court’s most ardent voices against capital punishment in the 1970s.

At the end of his 34-term career on the Supreme Court, Brennan confidently predicted to his clerks that both Stevens and Harry Blackmun would eventually come to view the death penalty as unconstitutional.

It is a prediction preserved in the narrative history of the 1989-90 term prepared by Brennan’s law clerks at his direction. “Early in the Term, WJB had expressed his view that someday Blackmun (and somewhat less likely Stevens) would ‘come around’ to his view that the death penalty is in all circumstances cruel and unusual punishment,” Brennan’s clerks wrote.

Read the rest here.