The Day Brennan Declared the Court Supreme

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A peek at yesterday’s installment of “This Date in Liberal Judicial Activism” on the National Review Online’s Bench Memos blog reminded me Sept. 29 had a dual significance for Justice Brennan.

As I pointed out yesterday, it was the date on which President Eisenhower announced plans to nominate Brennan to the Supreme Court in 1956. Two years later, it also happened to be the day the Court announced its decision in the Little Rock school desegregation case, Cooper v. Aaron.

To show their unanimity, all nine justices jointly signed the decision rather than having a single author attached to the opinion as usual. That symbolic gesture obscured Brennan’s key role as draftsman.

We detail at length in Justice Brennan: Liberal Champion the dramatic events leading up to the Court’s decision from President Eisenhower’s reluctant decision to deploy paratroopers to Little Rock in 1957 through the justices’ special sitting to consider the case a year later. (more…)

It was 54 years ago today that President Eisenhower announced plans to appoint William J. Brennan Jr. to the Supreme Court.

The way Brennan liked to tell the story, he felt irritated when he got a call the previous evening in his brand new chambers in Red Bank, N.J., from Attorney General Herbert Brownell asking him to come down to Washington the next morning. Brennan assumed the Eisenhower Administration wanted him to serve on some Justice Department committee studying judicial efficiency.

As we recount in Justice Brennan: Liberal Champion, Brennan insisted a seat on the Supreme Court wasn’t on his mind as he scrambled to board an overnight train to Washington that Friday night. When he blearily got off the train in Washington early Saturday morning, he didn’t think about why the attorney general himself was waiting at the gate to greet him.

Seated inside Brownell’s car as they pulled away from the train station, Brownell turned to Brennan and asked, “You know why the president wants to see you, don’t you?”

“Herb, I know, but you know how I feel about this thing,” Brennan said,  trying to fend off any offer to serve on a Justice Department committee.

“Why you don’t know at all, you damn fool,” Brownell said with a chuckle. “He wants to talk to you about filling the vacancy of Sherman Minton” on the Supreme Court.

Could Brennan really have been as dumbfounded as he liked to suggest in subsequent retellings of his selection? In fact, Brennan admitted in an Oct. 1956 interview with Life magazine that the possibility of being selected for the Court had crossed his mind. “But it seemed so fantastic I dismissed the idea at once,” Brennan said.

Here’s the thank you letter Brennan wrote to Eisenhower after his recess appointment became official: WJB-IKE letter

Court To Release Audio of Arguments Each Week

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Anyone hoping for the Supreme Court to televise its proceedings – an idea Justice Brennan came to embrace by the end of his tenure – will have to settle for a considerably more modest amount of new access.

The Court announced plans Tuesday to post audio recordings of all oral arguments at the end of each argument week. Oral arguments have been recorded since 1955 but the Court usually doesn’t release them all until the start of the following term.

As Scotusblog’s Lyle Denniston noted, “the earlier availability of the tapes may be of considerable advantage to scholars and other researchers, and to media companies preparing documentaries.”

But the new policy won’t do much good for those who cover the Court on a real-time basis. In a post on the Blog of Legal Times, Tony Mauro noted, “Since it only hears arguments on Mondays, Tuesdays, and Wednesdays, that means the release will be several days after the fact, making it of little use for contemporary reports by the news media.” (more…)

The Nation Picks Top 20th Century Progressives

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The Nation magazine has published a list of who it considers the 50 most influential progressives of the 20th century. Unlike his close allies Earl Warren and Thurgood Marshall, Justice Brennan isn’t included on the list, but he does get prominent billing in Warren’s entry.

“With the help of progressive justices William O. Douglass [sic] and William J. Brennan, the Warren Court dramatically expanded civil rights and civil liberties,” says the caption accompanying Warren’s entry. (The caption writer appears to have confused the spelling of Justice Douglas’ last name with that of Frederick Douglass, the noted 19th century African American abolitionist and social reformer.)

The entry for Warren concludes, “When Eisenhower nominated Warren to the Supreme Court, he thought he was appointing a conservative jurist and later reportedly said that it was the ‘biggest damn fool mistake’  he’d ever made.”

Legend has it Warren actually said he made two mistakes – and they were both sitting on the Supreme Court, a reference to Warren and Brennan. We try to get to the bottom of that legend in Justice Brennan: Liberal Champion and conclude it’s an open question whether Eisenhower ever said it. But it sure makes for a great line.

Brennan and Blackmun: The Sculpture

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Of all our many little discoveries in Justice Harry Blackmun’s papers at the Library of Congress, a personal favorite is the note he sent Justice Brennan when he found out a famous sculptor had named a new creation in their honor.

Richard Serra named a giant T-shaped sculpture “Blackmun and Brennan” because, as he explained to the New York Times in 1989, he admired the two justices. The newspaper’s reviewer interpreted the sculpture “as a kind of heroic figure with outstretched arms, holding up the walls as if straining to hold back the forces of conservatism.”

Blackmun wasn’t a natural ally with Brennan when he joined the Court in 1970. But, as we recount in Justice Brennan: Liberal Champion, they increasingly came to align, particularly during the 1980s.

Blackmun, clearly amused by this most unusual and unexpected honor, forwarded a copy of the review to Brennan along with a joking note: “It is a good likeness, don’t you think?”

I came across an article in the New York Times on Friday detailing how one Serra sculpture now sits rusting in a crane yard in an industrial section of the South Bronx in New York City. The story made me wonder what happened to “Blackmun and Brennan.” (more…)

Hunting for Justice Brennan in Trenton

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I happened to be in Trenton, N.J. recently and couldn’t resist searching for traces of Justice Brennan’s tenure on the state Supreme Court there. It turned into something of a scavenger hunt.

Brennan's bust at the New Jersey Supreme Court

The state’s seven justices no longer convene in the State House Annex where Brennan heard cases when he served on the court between 1952 and 1956 immediately before joining the U.S. Supreme Court. In 1982, the court moved into what is now known as the Richard J. Hughes Justice Complex. That was my first stop.

Tammy Kendig of the court’s communications office was kind enough to offer a tour of the courtroom. It’s considerably more modern then the marble and columned chamber the U.S. Supreme Court has occupied since 1935.

The eighth-floor box-in-a-box courtroom is suspended inside the building’s open central atrium. Cameras mounted on the walls webcast the court’s proceedings and the justices’ clerks can watch from within two skyboxes. (more…)

Justice Brennan’s Favorite Television Show

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A new legal drama premiering Wednesday on CBS called “The Defenders” happens to share the same name as Justice Brennan’s favorite television show.

The show called “The Defenders” enjoyed by Justice Brennan and his wife Marjorie was a pioneering television courtroom drama featuring a father-son pair of defense attorneys that aired in the early 1960s.

I learned of their appreciation for the show after coming across a 1963 Washington Post society column while searching for articles about Mrs. Brennan.

Columnist George Dixon recounted that, at the end of a charity event at the French Embassy, Mrs. Brennan “announced that she had to hurry home. ‘I suppose you and the Justice have an important engagement this evening?’ suggested an Ambassador’s wife. ‘Oh, no,’ replied Mrs. Brennan, whose whole life is surrounded by the law, ‘we never go out on Saturday night. Justice Brennan and I always stay home to see ‘The Defenders.’”

I wondered what would prompt a Supreme Court justice to watch a courtroom drama on a Saturday night. Didn’t Brennan get enough of that at the office? (more…)

Brennan’s “Rule of Five” as Campaign Mantra

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When it comes to invoking Justice Brennan, no candidate this year can top Minnesota Supreme Court candidate Greg Wersal.

At least once a day this summer, Wersal sent out the same tweet from his account @Wersal4SCourt: “Justice Brennan said the most important law at the US Supreme Court was, ‘The law of five. With five votes you can do anything around here.’”

Wersal was paraphrasing one of Justice Brennan’s most frequently quoted – and dissected – lines. For many years, Brennan liked to stump each newly arriving batch of clerks by asking them to name the most important rule they needed to know as they started work in his chambers.

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Justice Brennan’s Gridiron Defeat

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It’s been a tough start for the William J. Brennan High School’s football squad in its inaugural season. The San Antonio, Texas, team has lost all of its first three games by wide margins: 44-0, 35-7 and 29-0.

This is probably of little solace to the Bear’s players or fans, but one of the few times Justice Brennan failed to achieve something he set out to do involved football.

Brennan very much wanted to be manager of the University of Pennsylvania’s football team while he was a student there between 1924 and 1928.

Six decades later, he could still vividly recall embarrassing himself during one particularly rainy game when time was called so players on both teams could remove the mud from their uniforms and shoes.

(more…)

Brennan’s Conversion on Cameras in Court

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The federal judiciary’s policy making body announced plans this week for a pilot project to allow cameras to record civil trials in some District Courts.

Whether to allow federal court proceedings to be broadcast has been debated for years within the judiciary and Congress. Every recent Supreme Court nominee has faced questions about their views on the subject. Most recent ones have assured senators they’ll consider the issue, but the justices seem no closer than ever to allowing cameras inside their courtroom.

As the Wall Street Journal’s Jess Bravin noted in a May story, Justice Brennan was one of the court’s principal advocates for cameras in the courtroom by the end of his tenure.

But our research for Justice Brennan: Liberal Champion suggests he might have been a convert to the idea later in his career.  (Unfortunately, there wasn’t room in the book to talk about his views on the issue so consider this a bonus track.) (more…)