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…)

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…)

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.

The Washington Post on Sunday included Justice Brennan: Liberal Champion on its list of the best books of 2010.

I’ve generally saved the self-promotional hype for Facebook and Twitter, but thought this honor is worth a mention here on our blog, too.

The blurb on the Post list quotes the perhaps overly-generous concluding line from David Garrow’s Post review of the book from October: “Scrupulously honest and consistently fair-minded, “Justice Brennan” is a supremely impressive work that will long be prized as perhaps the best judicial biography ever written.”

Justice Brennan has also landed on best-of-the-year lists compiled by the St. Louis Post-Dispatch and the Irish Times (of Ireland).

When Brennan Faced the Children’s Express

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I might like to think that I’ve read every interview Justice Brennan ever did with reporters, but over Thanksgiving came proof that I missed at least one.

Not long after his retirement in 1990, Brennan sat down for an interview with some young journalists from the newly established Indianapolis bureau of the Children’s Express. (The story of that news organization, for which students served as editors and reporters, is interesting in its own right.)

I only recently learned about this article because one of the student journalists who participated in the interview, Wendy Potasnik Stern, is the sister of one of my wife’s closest friends dating back to their time growing up together in Indianapolis. In addition to Wendy, who was 17 at the time, the other team members were 15, 12, 11 and 10. (I could have qualified to participate, too, since I turned 15 that year.)

As the students noted in the resulting story, they happened to have interviewed Brennan on Sept. 28, the 34th anniversary of President Eisenhower’s naming him to the Court and two months after Brennan retired suddenly after suffering what his doctors believed was a stroke. (more…)

Justice Brennan & The Press

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NPR’s On the Media broadcast an interview with me over the weekend about some of Justice Brennan’s landmark decisions involving free speech and press freedoms.

Host Brooke Gladstone briefly alluded to what we reveal in Justice Brennan: Liberal Champion about his complicated attitude toward the press. As she put it, “He was a champion of speech and the press and yet, he rarely, if ever, gave interviews and was generally distrustful of reporters.”

The disconnect between Brennan’s work as a champion of women’s rights and his refusal to hire female clerks has gotten the most attention since the book came out but his ambivalent feelings about the press is something Steve and I also found fascinating.

Brennan was an avid consumer of journalism who read at least two newspapers each morning and watched the evening news on television each night. He genuinely believed reporters played a vital role in a democratic society. (more…)

Inside Brennan’s Post-Retirement Chambers

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I saw an op-ed in the Washington Post recently by the former Brennan clerk with the most prominent position in the Obama Administration: Federal Communications Commission Chairman Julius Genachowski.

Most profiles of Genachowski mention that he clerked for both Brennan and David Souter. Not that there should be an asterisk attached, but Genachowski clerked for Brennan after his retirement.

I didn’t have a chance to speak to the half dozen or so clerks who served in Brennan’s chambers post-retirement and have wondered how their experienced differed from those who clerked while he was a sitting justice. The last ones I’d contacted were the four who were supposed to start clerking in July 1990. All but one found themselves out of a job when Brennan suddenly announced his retirement three days before they were supposed to arrive in his chambers.

It’s hard to generalize about the experience of clerks who work for retired justices. Much depends on how active the justice is and I suspect Sandra Day O’Connor’s clerk has plenty to do given how often she sits as an appeals court judge. But Brennan had left the Court at the age of 84 after what his doctors believed was a stroke and sat as a judge only a single time on the U.S. Court of Appeals for the D.C. Circuit.

Just because the book is finished doesn’t mean I can resist the urge for further research. So I sent emails to four former clerks who served in Brennan’s chambers between 1990 and 1996. (I didn’t bother trying to reach Genachowski, who I figured might be a little hard to reach right now.) (more…)

The ABA Journal has included the Justice Brennan Blog on its “Blawg 100” list of the year’s 100 best legal blogs.

The ABA included us among five blogs in the “Court Watch” category along with some rather distinguished company such as the granddaddy of them all: SCOTUSblog.

I wondered whether there would be anything left to say about Justice Brennan when we started this blog five months ago. But it’s hardly been a struggle at all to find ways to link Brennan to what’s going on at the Supreme Court and beyond.

I hope this blog has shown the degree to which Justice Brennan remains relevant 20 years after his retirement. (more…)

Airing the Brennan Tapes

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NPR broadcast a story Friday by Nina Totenberg about Justice Brennan: Liberal Champion. Totenberg quoted Steve and me, but more exciting is her use of snippets from Steve’s interviews with Justice Brennan.

This is the first time any excerpts of the 60 hours of tapes have aired publicly. The sound quality is surprisingly good, given that Steve started these interviews in 1986 and used the type of standard cassette tapes you would have found in a Walkman in that era.

Hearing Brennan’s voice is still a novelty for me. I mostly relied on the set of transcripts that Steve gave me soon after I started working on the book in Oct. 2006. (The pile is much fatter than a Manhattan phonebook.)  The first thing I did was read through the transcripts in chronological order.

I didn’t actually hear Brennan’s voice for quite some time. I remember thinking it was much deeper than I’d expected when I first heard it while watching a tape of a 1986 public television documentary about him. (more…)