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.

As legal historian Mark Tushnet wrote in a 1995 law review article, “Brennan would reject each answer, in the end providing his own by holding up his hand with the fingers wide apart. This, he would say, is the most important rule in constitutional law.”

Nat Hentoff had earlier described what had become known as Brennan’s “rule of five” in a 1990 profile of the justice in the New Yorker. (The anecdote was also the basis for the name of a chapter in both James F. Simon’s 1995 book, The Center Holds: The Power Struggle Inside the Rehnquist Court and Duke Law professor H. Jefferson Powell’s 2008 book Constitutional Conscience: The Moral Dimension of Judicial Decision.)

As Tushnet and Powell note, it’s not entirely clear what exactly Brennan meant when he held up his hand. Was he laying out the basic assumption underlying an aggressively activist judicial vision: that you could do anything you want at the Court if you have five votes? Or was it a more pragmatic explanation that, unless you have five votes, you can’t get anything done at the Court?

Rather than it being “a cynical expression of judicial real politik,” Simon concluded “it was rather, recognition of the fundamental truth that the Court functioned as a collegial body of nine independent-minded judges who must, by majority vote, make the most basic judgments about the direction of our constitutional democracy.”

We don’t offer a definitive answer to that question in Justice Brennan: Liberal Champion. We think he probably had both meanings in mind. Brennan held up five fingers during the peak of the Warren Court, when his solid bloc of liberal justices could do anything they wanted. But he also did so under Warren’s two conservative successors, Warren Burger and William H. Rehnquist, when he found it so much more difficult to put together majorities.

I was interested in finding out why Wersal kept tweeting that quote as some sort of campaign mantra. Unfortunately, Wersal didn’t respond to my inquiries.

Wersal, a conservative lawyer who has repeatedly run for a seat on Wisconsin’s high court on a platform of rolling back judicial activism, is an unlikely fan of Justice Brennan.

Wersal is also a long time critic of rules governing judicial elections with a penchant for theatrics. He once campaigned with a blue ball chained to his leg, which he said symbolized limits on speech imposed by the state ethics rules.

That explains why Wersal has earned a reputation as “one third gadfly, one-third martyr and one third serious,” says David A. Schultz, an election law expert who teaches at Minnesota’s Hamline University School of Law.

In 2002, the U.S. Supreme Court ruled in Wersal’s favor, rejecting the limits Minnesota placed on what judicial candidates can say during election campaigns about legal or political issues.

“People love him or hate or hate him but he’s clearly had a huge impact not only in Minnesota but across the country in how judicial elections are run,” Schultz told me. “Anybody in the country running for judicial office can do practically the same thing as any candidate running for any other political office.”

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