Part One

The Nomination

[00:00:20] Seth Stern—I’m Seth Stern, co-author of Justice Brennan: Liberal Champion.

Stephen Wermiel—I’m Steve Wermiel, the other co-author of Justice Brennan: Liberal Champion.

[00:00:37] GWorks—Why did President Eisenhower choose William J. Brennan, Jr. for the Supreme Court in 1956?

[00:00:43] S. Wermiel—Do you want to start?

S. Stern—Sure.

It seems incredible today in an era of such focus on the ideology of Supreme Court nominees that that really wasn’t a consideration for the Eisenhower Administration. The seat opened up in September of 1956, at a time where President Eisenhower was about to face a re-election campaign against Adlai Stevenson, who he had beaten handily in 1952. Things were a little closer than expected that September and there was certainly an appeal of picking a Catholic Justice; there hadn’t been one on the Court in about seven years, since the death of [Associate Justice] Frank Murphy. President Eisenhower laid out some specific criteria: In addition to a Catholic, he was hoping for a Democrat; someone with lower court judicial experience, he felt too many of the [President Harry S.] Truman picks had been sort of political cronies without experience as judges; and he also wanted someone who was relatively young. And when you combined all of those criteria, there weren’t many candidates around the country. And William Brennan had spoken at a Justice Department conference that spring and he had come to the attention of the Attorney General, Herbert Brownell, and so when the vacancy opened and these criteria were laid out by the President, Brennan quickly became an appealing candidate.

[00:02:05] GWorks—How active was President Eisenhower in the nomination process?

[00:02:11] S. Wermiel—I don’t think he took part in the search but he made the criteria and what he hoped to accomplish with the nomination very clear to his Attorney General, Herbert Brownell, who was the main player. Interestingly, if I understand correctly, there wasn’t a White House Counsel’s Office in those days. So, the Justice Department was the focal point. And, I think, once having made the things he was looking for clear, I don’t think Eisenhower was a day-to-day, hands-on participant in the process. But he did then meet with Brennan at the last...very last stage of the process.

    [00:02:53] GWorks—To offer him the job, in essence.

S. Wermiel—To offer him the job.

I mean...just as an interesting aside, because I always get a kick out of this, the...you know we made a big deal out of the Nixon secret recording system in the White House during Watergate but we know a lot about the Brennan nomination because Eisenhower had his secretary pick up the extension phone and take dictation. She would write down, shorthand, verbatim accounts of many of the President’s conversations. That didn’t seem to cause a scandal ever in the way the Watergate recordings did but...so,  there’s a lot of detail about what Eisenhower said to different people when he found out he had this Supreme Court vacancy.

[00:03:43] GWorks—What issues did Brennan’s nomination pose?

[00:03:49] S. Stern—There were two issues that came up at his confirmation hearing: One was his being a Catholic. He was forced to answer the question of whether he could balance his duty to the Constitution with his faith. And he pledged to...He was angry that he had to answer the question and it was something that would continue to come up throughout his tenure and he’d get more and more angry in his interviews with Steve when Steve would ask him in the course of their interviews and Brennan would say, “Damn it! I’ve had to answer that!  I’ve already answered it!”

The other issue that came up was he had made two...in two speeches prior to joining the U.S. Supreme Court, when he was a judge in New Jersey, he had made some veiled criticism of [Senator] Joseph R. McCarthy [R–WI] and his tactics, his anti-Communist tactics, and McCarthy got permission to sit with the [Senate Judiciary] Committee, questioned Brennan and ultimately was the only vote heard on the Senate floor during a voice vote, voting ‘no’ again him [Brennan].

[00:04:51] S. Wermiel—I think there was a little bit of suspense because when it started nobody was sure what McCarthy’s plan was, whether he was going to actually try to hold up the nomination. But it really kind of fizzled after one day of questioning.

[00:05:08] GWorks—How long did the nomination and confirmation process take?

[00:05:14] S. Wermiel—Well, he [Brennan] was actually a Recess Appointment,1 which is another interesting side light...something that...it’s unimaginable would happen with a Supreme Court nomination today. So, he was appointed to the Court in October ′56 and then his confirmation hearings weren’t until early spring the following year—′57. Once the confirmation hearings started there was just a day-and-a-half...not even half of the second day...and then I think the vote was a couple of days later and it was all over pretty quickly.

[00:05:53] GWorks—Did Brennan go through the grueling confirmation process we have now?

[00:06:00] S. Stern—It would be unfamiliar to a modern viewer. There was no television, they were sort of crammed into a hearing room—we saw the newsreel footage of it. And yes, there was none of the trappings of the preparation: the “murder boards; there was no real White House involvement. It was really done by the Attorney General, his deputy, William Rogers, a couple other aides. And, the Attorney General said he had read through all of Brennan’s opinions, something unimaginable today when you have teams of lawyers vetting everything. It was really a small group involved in the process.

[00:06:33] GWorks—Would Brennan be confirmed today?

[00:06:39] S. Wermiel—Well, I think that is a harder question...The obvious answer would seem to be ‘no’ because of the politicization of the process today. I think it is a harder question than it might seem because Brennan in 1956 was not the Brennan we know looking back from 34 years of service on the Supreme Court. He had written a handful of important and kind of interesting, revealing dissenting opinions on the New Jersey Supreme Court but for the most part his politics, his judicial philosophy were all kind of unknown...so...So, you know, Brennan might, in today’s terms, Brennan might seem like a sort of centrist, relatively unknown, not particularly controversial nominee. In that context, he might make it today. In the context of the Brennan, you know, if you get the end of the book and think about who Brennan is, I don’t think there’s any chance he would make it today. 

EDITOR’S NOTES

1  Article II, Section 2, paragraph 3 of the Constitution empowers the President to “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”  On 7 September 1956, Associate Justice Sherman Minton, in declining health, informed President Eisenhower that he would retire. On 15 October 1956, the 85th Congress adjourned, President Eisenhower appointed Justice Brennan. President Eisenhower nominated Justice Brennan on 14 January 1957 and the Senate confirmed him on 19 March 1957 by voice vote. Only Senator McCarthy voted against Justice Brennan.

—End of Part One—

Part Two

On the Court

[00:00:20] S. Stern—I’m Seth Stern, co-author of Justice Brennan: Liberal Champion.

S. Wermiel—I’m Steve Wermiel, the other co-author of Justice Brennan: Liberal Champion.

[00:00:36] GWorks—When Brennan joined it, who was on the Court and what issues did it face?

[00:00:43] S. Stern—He joined the Supreme Court in an era of intellectual giants. You had Felix Frankfurter, his former law professor at Harvard; Hugo Black, the former [United States] Senator from Alabama; William Douglas, who was the sort-of Wunderkind, head of the SEC [Securities and Exchange Commission] and professor; Earl Warren, the former Governor of California. And so, in their midst, Brennan really looked minor in comparison and that was sort of why everyone perhaps underestimated him, because, by comparison, he really seemed to be a small figure among intellectual giants. 

As far as the issues, you had Brown v. Board of Education had just been decided a couple years earlier and so the issue of civil rights and school desegregation would be important early in his tenure; the issue of communist subversives and the era of McCarthyism had only recently begun to fade a bit; and certainly an issue that he...faced his first Term and would continue to face for much of his tenure was obscenity and what to do with material that was obscene and potentially objectionable and whether it deserved protection under the First Amendment.

[00:01:56] GWorks—What did Brennan think of the Justices he was joining?

[00:02:03] S. Wermiel—...He said before he came to the Court the person he was most in awe of, and I think this actually continued, was Hugo Black. I mean Black was really this legendary Constitutional figure. Had a great intellect, master of the Constitution and...so I think Brennan was most...not scared of but...really awestruck by Black.

His most difficult relationship almost immediately was with Felix Frankfurter. Frankfurter tended to be a somewhat overbearing individual. He thought that he was trying to woo newcomers to the Court in the same sense that Brennan began to do that himself. But Frankfurter really tolerated no sort of variance. I mean, you know, ‘if you are one of my boys, you do it my way, and if you don’t do it my way, I don’t want to have anything to do with you.’ And so Brennan really...kind of...you know...was offended early on at Frankfurter kind of expecting to be able to tell Brennan how things were done and even how to vote and how certain cases should come out. And...Frankfurter would come in and try to woo Brennan’s law clerks as well because they were all Harvard students in his first ten years and so they were supposed to be in awe as well of the legendary Felix Frankfurter, the great Harvard Law School professor. And so it just didn’t go well. I mean, they remained friendly and very cordial. They lived right across the street from one another in Georgetown. They socialized somewhat. But, I think Brennan was very put off by Frankfurter’s attempts to influence him.

[00:04:06] GWorks—How did Brennan’s relationship with Chief Justice Earl Warren develop?

[00:04:13] S. Stern—It was something that developed almost immediately. It’s almost amazing the number of big opinions that Warren assigned him in that first Term. And Steve would ask him about that, ask Justice Brennan, ‘How did you come to be so close to...Warren so quickly?’ And Brennan, who wasn’t necessarily the most self-reflective person, would just say, ‘It just sort of happened.’  And in some ways they had similar personalities; and also they had a history of sort of this relationship. Warren the senior and Brennan playing the junior..where...He had done this in New Jersey and during his tenure in the army, helping implement the vision of a more senior sort of partner and he did that very effectively for Earl Warren and I think Warren saw that Brennan could play the role of quarterback, marshaling majorities for his vision of the Constitution. 

[00:05:07] GWorks—Was Brennan the pragmatist and Warren the ‘idea guy’?

[00:05:11] S. Wermiel—I mean, I think that’s a fair description. It’s not to say that Brennan didn’t have...an intellect and didn’t have ideas. But, Brennan was a very good lawyer...a very good craftsman...a skilled tactician in ways that I don’t think Warren really was. I think Warren had a vision...sort of egalitarian vision of the Constitution and of the role of the Court. I think he and Brennan shared that vision. But, I think Brennan did a lot of the nuts and bolts of figuring out how to get from Point A to Point B. If you...want to bring a particular right under the Constitution or make a particular right apply as a limit to the states, not just to the national government, it seems that Brennan was the one picking the cases that would be good vehicles for...doing that. And, that’s a comment not just I think about Warren but also about the relationship with Black and Douglas. I mean this is sort of an exaggerated way of thinking about it but it’s almost as if Black and Douglas were there thinking great thoughts and meanwhile Brennan was getting it done.

[00:06:32] GWorks—Did the relationship among Brennan and Warren, Black and Douglas develop quickly?

[00:06:38] S. Stern—Certainly by 1960 you did see this private circulation [of draft opinions] among Warren and Brennan, Douglas and Black. They were beginning to vote as a cohesive bloc, frequently sharing opinions. And Brennan you see playing that role of sort of strategist. I think that they had come to respect him very quickly for his ability. And it was a couple more years though until they had that fifth vote, when Arthur Goldberg joined them, that they had that solid bloc of five. But you see them operating in that cohesive way a little earlier. 

[00:07:10] GWorks—Was Brennan aware of his abilities and the role he played?

[00:07:17] S. Wermiel—Humble about but aware of...Yes, I think that he...understood that he was playing a significant tactical and pragmatic role. But...in his own way, he always wanted it to be about Earl Warren. He always would say, you know, it was ‘the Chief’s vision’ or…I mean, he had this great respect for Warren and for what the Warren Court did and so he was reluctant to have the conversation be about Brennan rather than a recognition of Warren’s accomplishments.

[00:07:58] GWorks—Did Brennan’s relationship with his brethren push him to become the “Liberal Champion”?

[00:08:05] S. Wermiel—If anything, during the Warren years, I think his role trying to build majorities actually tempered him. He was the one trying to find a way to accommodate everyone. And it was only in the 1970s, when Warren had left, that he came to take more absolutist positions on issues like the death penalty or obscenity. So, I think the way to think of it is that he was sort of tempered. I think it was there. I think he changed perspectives from that of a state judge to a judge on the U.S. Supreme Court and started seeing things differently on issues like criminal rights, the rights of criminal defendants or civil rights and came to believe that there was a role for a more assertive judiciary to protect individual rights. But the sort of full throttle liberal voice I think you saw more of that in the 70’s when he was in the role of dissenter.

—End of Part Two—

Part Three

The Legacy

[00:00:20] S. Stern—I’m Seth Stern, co-author of Justice Brennan: Liberal Champion.

S. Wermiel—I’m Steve Wermiel, the other co-author of Justice Brennan: Liberal Champion.

[00:00:36] GWorks—Where did Brennan and the Warren Court make their mark?

[00:00:40] S. Wermiel—Well, I think there are a few different areas...I think that the vision of free speech that we have in the country today really is directly a result of Brennan’s decisions starting with New York Times against Sullivan and running all the way to the very end of his term with the flag burning cases. That we have...in order to have a system of free speech that is genuinely free...you have to accept a substantial amount of offensive speech, sometimes even hurtful and unwanted speech, but otherwise it’s not really free speech. And that legacy I think it still pretty strong and pretty solid. Sometimes controversial but...but nonetheless.

The separation of church and state is something that I think he became the most ardent advocate of. You know, his wall of separation was higher than anybody else’s wall...There is still some legacy of that. It’s eroded over time but I think that’s a significant area.

The death penalty, ironically, he seems to...his impact seems to be as Justices are going out the door. I mean, you know, Harry Blackmun as he was in his final years on the Court; John Paul Stevens as he was leaving the Court; even Sandra Day O’Connor in her own way. They’ve all sort of expressed doubts about the ability to administer the death penalty in a fair and even-handed way. None of them have gone as far as he did to say that it was in all respects “cruel and unusual punishment.”  But, they’ve seen some of the merit of his concern about the fairness of the process, I think. So, I think that is a lasting legacy.

To the extent that we still have affirmative action, at all, to the degree we do, I think it’s partly Brennan’s vision. He laid the foundation for the affirmative action cases that the Court worked with in the Nineties and in this decade after Brennan was gone.

The area of government accountability I think is a very critical one to him. The idea the you can, in fact, sue government for damages for harms caused by the actions of government actors—state and local governments, federal officials. He wrote a number of important decisions. There’ve been some cut-backs in that area but still a fairly significant legacy.

The role of Habeas Corpus in our system, again there’ve been many restrictions and the landscape has changed substantially, but  I think Brennan deserves much of the credit for elevating the importance of Habeas Corpus in our consciousness. And I think that remains even with the cut-backs.

[00:03:48] GWorks—What did Brennan think his legacy was?

[00:03:55] S. Stern—You know, there’s a fascinating contrast with what he would say publicly and what he said privately to Steve. Publicly, he liked to say, ‘Oh!  It’s not my legacy. It’s a court of nine.’  It wasn’t false modesty. But, he very much wanted to underplay...any notion that it was the Brennan Court or a Brennan legacy. 

I think he was more candid privately with Steve. And admitted that he had sort of helped build an edifice that would be hard to knock down. And what’s actually fascinating is how much of what he predicted was true. He said particularly like Roe versus Wade he predicted it wouldn’t be scaled back; certainly the incorporation of the Bill of Rights against the states, that was here to stay and it is. So, yes, certainly, there are areas of law that have...his legacy has been ratcheted back still...some...but there are others where, as Steve was saying, it remains largely intact. And Brennan was correct in how much of it would survive.

[00:04:54] GWorks—Did Brennan see real power in the procedural cases?

[00:05:00] S. Wermiel—I think Brennan had a very profound belief in the importance of being able to get in the court house door...That...was a critical and fundamental part of the fairness that our Constitution was intended to protect. And so, Habeas...the procedural due process for government benefits that came from Golberg versus Kelly, Baker versus Carr...opening up the whole notion of judicial review of the shape and size and population statistics of voting districts...those were all things that sort of opened the court house door to people who otherwise were going to be knocking on the door and finding it closed. And, in turn, the benefit of opening the court house door was that it made democracy work. And so I think it’s that kind of two-part vision that maybe was really at his essence.  

[00:06:10] GWorks—Did Brennan have specifics results in mind?

[00:06:17] S. Wermiel—Well, I think there are two possible ends. He talked a lot in his speeches...even before he went on the Supreme Court, in the McCarthy speeches in the Fifties and then all the way through his Supreme Court tenure, about human dignity, about the Constitution and the courts protecting the basic value of human dignity. And so I think that’s one end. It’s opening the court house doors and making democracy work so that government is recognizing the dignity of all human beings.

The second end is, you know, he believed deeply in the protection of certain substantive rights. So it’s not purely procedural. It’s procedural to make the system work to protect a variety of important rights.

[00:07:15] GWorks—Was there a vote Brennan wanted back?

[00:07:22] S. Stern—He had a couple of votes that he regretted  early in his tenure. One involved a denaturalization case...Someone had lost...been stripped of their citizenship. I believe they voted in a foreign election or they had…

    [00:07:38] GWorks—Mexico, as I recall.

[00:07:39] S. Stern—Yes...another case they had abandoned their military service during the war. And he came to quickly regret his vote in that case and would write an opinion a few years later sort of explicitly rejecting what he...the position he had taken in that earlier case. So, of all of his votes, that was the one that he most explicitly regretted. But, he wasn’t necessarily one, as I said, for self-reflection. And so, he wasn’t one to look back and sort of through up his arms and second-guess himself. He acted. He voted. And, I think he moved on. 

[00:08:14] S. Wermiel—...I mean...I’ve had many people connected with him and various organizations tell me that they say he regretted his vote in Buckley versus Valeo, the campaign finance case. I don’t think we have anything in the files or the interviews of anything that suggests that to be the case. That’s the one that people talk about most and I don’t have anything that I know of to support it. 

[00:08:41] GWorks—What did President Eisenhower and Attorney General Brownell come to think of Brennan?

[00:08:47] S. Stern—There’s this famous anecdote that, asked, ‘Did you make any mistakes as President?’...President Eisenhower...that he responded, ‘Yes. Two. And they’re both sitting on the Supreme Court.’, referring to Brennan and Warren. Steve’s research suggests that it’s a great anecdote but it is not necessarily true...that he probably didn’t say it...certainly didn’t say it publicly. He may have thought it. I mean, Warren and Brennan certainly were more liberal than he might have wanted. On the other hand, as we talked about, the criteria...based on the criteria...that he had set out...laid out in September of 1956, on the eve of re-election, Brennan suited those purposes. And whether he was more ideologically liberal than Eisenhower had predicted...absolutely. But that wasn’t the reason that he picked him to begin with. 

As for his Attorney General, I think Brownell...was a moderate Republican and I don’t necessarily think that...if he did read all of his opinions and did see some of the kernels of the future Justice Brennan, he didn’t have a problem with it. 

[00:09:58] GWorks—Is there someone now who resembles Brennan? His successor, Justice David H. Souter?

[00:10:04] S. Wermiel—I don’t think Souter would...either does or would describe himself as reflecting the same set of values or vision of the role of the Court...They became good friends. They were both very solicitous of one another. It was a very important relationship to Brennan after he retired because Souter would come take him to the judges’ dining room when the Justices were gathering for lunch once in a while. Souter would come have a cup of coffee with him once in a while. And I think that made a big difference to Brennan. There’s a public...sort of image or characterization of Souter as having fallen under Brennan’s spell. This is a notion that conservatives have been selling for 20 years. And, I really think it’s not true. And, I know Souter thinks its not true because we’ve talked to him about it at some length. I think Souter as an old-fashioned conservative with a small “c” came to the Court with an enormous respect for the history and precedents of the Court. And if you arrived at the Supreme Court in 1990 and took precedent seriously, that meant taking Brennan seriously. I mean, that’s part of the whole point of the book is that Brennan left a...you know…a fairly broad landscape of legal landmarks and Souter, I think, was very respectful of many of those precedents. And saw [Chief Justice William H.] Rehnquist and the other wing of the Court as kind of devoted to knocking down many of those precedents and landmarks. And that wasn’t where Souter wanted to be. 

[00:11:59] GWorks—Was there a Justice whom Brennan held up as a model?

[00:12:05] S. Wermiel—I don’t know that there really was...He had enormous respect for many of his colleagues. In an interesting sort of way, and this will sound odd, but I am tempted to say [Justice] John [Marshall] Harlan. He respected Harlan and Harlan’s open-mindedness. I mean, Harlan often came out opposite of Brennan and was clearly more conservative than liberal. But, I think Brennan always felt that he could talk to Harlan, that he could approach Harlan, that Harlan really thought things through and wasn’t caught up in some kind of dogmatic, ideological track. And so I think Brennan respected that enormously. And he talked a lot about Harlan..the time that Harlan spent in dissent and how patient and understanding Harlan was. And, you know, Brennan would talk about the pendulum swinging. As in Brennan’s own time as the Court got more conservative, he would say, ‘Now I understand how John Harlan felt when he was in dissent all those years. But, I do believe that the pendulum will swing back.’...So, you know, I don’t think Harlan was a role model but I think he had enormous respect for Harlan’s decision-making.

[00:13:33] GWorks—Is Brennan unique for admiring Justices with whom he disagreed or holding legal views sometimes at odds with personal views?

[00:13:41] S. Stern—I don’t think it is unique. I think he had respect for, as you said, Rehnquist, for Antonin Scalia, for many of the Justices he disagreed with. He thought they were very bright and...was impressed by the work they did. I don’t think that’s unique. You could look on the current Court: Ruth Bader Ginsburg and Antonin Scalia are close friends. They don’t agree about much. So, I don’t think that was uniquely Brennan.

But the other aspect that you referenced, the contrast between Brennan the liberal Justice and the more conservative man is a fascinating theme that we develop throughout the book on issues like abortion, where he was the...he helped lay down the...privacy right in a series of precedents and then helped craft the Roe versus Wade abortion decision and yet was personally uncomfortable about abortion, as he revealed to Steve. Freedom of the press. He was a champion of the free press and yet he distrusted reporters, would sort of rail against them, curse about them in his interviews with Steve. And most strikingly on women’s rights, where he was the champion of women’s rights and wrote many of the landmark women’s rights decisions in the Seventies and yet would refuse to hire female clerks well into the Seventies when they were recommended by his former clerks who were now law professors. So it’s a central theme and getting at that I think part of that is this...there’s the conservative critique that liberals just are reading their own personal preferences into the Constitution and I think Justice Brennan proves that that’s not true. He wasn’t just injecting his own personal preferences when he was writing opinions. He separated what he believed personally from what...how he approached his job as a Justice. 

[00:15:24] GWorks—Brennan had a real Constitutional vision?

[00:15:30] S. Stern—Set apart certainly from his personal views. 

[00:15:34] S. Wermiel—I do also think, in response to your question though, that there were times when he had this odd almost over-arching institutional sense that...he could look at me and say, ‘Didn’t Rehnquist do a marvelous job in that opinion,’ in which Rehnquist had, you know, knocked Brennan out of the ball park with some decision. Almost in the sense of like an old fashioned military strategist who, you know, who doesn’t want to loose but who admires the strategy of the winning general with some detachment when he does loose. There were times when you saw that in Brennan. I mean...I do remember this moment in one of the interviews where I talked to him about a Rehnquist opinion that was a very conservative opinion—I don’t remember what it was—and...said something about how did he feel about Rehnquist winning that case and he [Brennan] said, ‘Oh, wasn’t he marvelous?’  Like this sort of detached appreciation that he liked his colleagues and he also cared about the Court having majorities and not being fractured. And so, he could have this sort of out-of-body appreciation of Rehnquist winning this case even if it was at Brennan’s own expense. 

[00:17:05] GWorks—Did Brennan have personal skill and experience that served him as a Justice?

[00:17:12] S. Stern—You could look at it...certainly he inherited certain political skills from his father, who was a very beloved and popular city commissioner in Newark, New Jersey. We strongly make the point that his success wasn’t because he some skilled retail politician working the halls. But he learned, I think, the art of politics from his father. I think he was a union...he was a corporate labor lawyer in Newark, that’s where he spent most of his career and he learned the art of negotiation there and then in the Army when he was helping mediate serious labor disputes during the war. So he did bring a certain skill set to the Court and it served him very well.

On the other hand, another important component of that success was that fact that he served in an era when there were moderates and centrists willing to be persuaded. Justice Harlan, Justice Lewis [F.] Powell[, Jr.] In the Seventies, Harry Blackmun and John Paul Stevens. We make the point in the book that he could...you know, someone on the current Court could be as skilled as he was as a consensus-builder. But if you’re serving on a highly fractured, ideologically divided Court, or say if he was serving on a Court with eight Antonin Scalias, there would be no room for even a Brennan-like consensus-builder to build much consensus.

[00:18:28] GWorks—Were Brennan’s legal views clearest where he was in the majority or in dissent?

[00:18:35] S. Wermiel—I think there are plenty of places where Brennan...fudges the origins of tests and standards...or re-words something in order to hold on to a fifth vote. I mean, I was just teaching the gender discrimination cases in the Constitutional Law class and when Brennan arrives at...the standard he eventually uses for gender discrimination, called “Intermediate Scrutiny,” I mean the paragraph says, ‘our cases establish.’  Well, that’s utter nonsense. There are no cases that establish this...this is the case in which he’s making up the test…So there are moments like that where the Court is sort of hedging a little bit and tinkering a little bit here and there and I think Brennan thought that was necessary and part of the process.

[00:20:20] S. Stern—And there were times when, in order to build a majority or to go build a...instead of a 5-4 go up to a 6-3 or 7-2, things would get a little muddled in bringing people on board. And so his opinions weren’t always models of clarity. There were two school prayer decisions in the early 1960s, one in which he was building one of those sort of group opinions and then the other where we was concurring in his own voice. And the newspapers the next day noted the contrast where really the one that was in his own voice was so much more clear than the one that was a group product...an effort to build consensus.

[00:20:20] GWorks—Did Brennan believe this back-and-forth was a necessary part of the Court’s process?

[00:20:26] S. Wermiel—He believed...I mean there’s an interesting...I don’t know that it’s really a contradiction...He believed that the Court had an obligation to try to speak with clarity and that it was all about getting five votes and not...he…disliked fractured and deeply divided courts. That didn’t mean he didn’t participate in more than his fair share of them when necessary. But I think he was trying often for...clarity and a clear bottom line…Whether he could succeed or not would often depend on the willingness of a fifth vote to go so far or how far. But...but, you know, that didn’t mean that Brennan wasn’t...wasn’t striving for a clear result and a clear message. He didn’t always get there.

—End of Part Three—

Part Four

The Legacy

[00:00:20] S. Stern—I’m Seth Stern, co-author of Justice Brennan: Liberal Champion.

S. Wermiel—I’m Steve Wermiel, the other co-author of Justice Brennan: Liberal Champion.

[00:00:36] GWorks—Brennan expressed to you some dissatisfaction with Justice Thurgood Marshall. What was that dissatisfaction and did Brennan ever express it to Justice Marshall.

[00:00:45] S. Stern—This was a subject of some sensitivity in the book. Justice Brennan had great respect for all that Thurgood Marshall had accomplished as the NAACP’s chief lawyer. He had basically helped dismantle desegregation [sic] one piece at a time in the forties and fifties. Brennan had seen Marshall argue some of those cases and had told Steve that he thought Marshall was probably the most skilled litigator he ever saw argue before the Supreme Court and then he saw him argue as the nation’s first [African American] Solicitor General in the 1960s.

But once Marshall had joined the Court in 1967, Brennan admitted to Steve that he was somewhat disappointed with Marshall. Marshall joined the Court and the liberal majority quickly unraveled and it didn’t go as Marshall had expected. And Brennan thought that Marshall hadn’t done his share to preserve the gains of the Warren era.

He [Brennan] was very reluctant to ever talk about that publicly. He only talked about it with Steve. I doubt he ever would have said anything to Marshall because he believed that Marshall never got his due for all that he had accomplished as a lawyer and judge and he [Brennan] didn’t want to do anything to take away from that. And so it was a matter of great sensitivity. Brennan even said that to Steve, ‘You have to be very careful how you handle this.’  We do write about it. But we try to do it with sensitivity because we don’t want to take away from Marshall’s legacy either.

—End of Part Four—

Part Five

Writing Justice Brennan

[00:00:20] S. Stern—I’m Seth Stern, co-author of Justice Brennan: Liberal Champion.

S. Wermiel—I’m Steve Wermiel, the other co-author of Justice Brennan: Liberal Champion.

[00:00:34] GWorks—Has any author had the access to a Justice that you had to Brennan?

[00:0:39] S. Wermiel—I don’t think anybody has had access to the same degree to a sitting Justice. I mean, I did 60 hours of interviews with him while he was still sitting on the Court in his last four years on the Court. He opened up all of his files; correspondence files, which are still closed to other people; his case files, many of which are now open to researchers; and what he called the “Term Histories,” which are these narrative accounts that he had the law clerks write of the major cases of the Term and how those cases evolved...and some of those are now open to other researchers, as well. But, I don’t think anybody else has had the kind of access while a Justice was still sitting on the Court and to such a complete set of papers and documents as well as the interviews.

[00:01:39] GWorks—How did you get unparalleled access?

[00:01:44] S. Wermiel—It started with Judge Abner Mikva when he was the Chief Judge of the [US Court of Appeals for the District of Columbia]...was someone I had gotten to know fairly well and Justice Brennan had become friendly with. And Judge Mikva knew the Brennan was looking for a biographer and asked me if I wanted to meet with Brennan. They didn’t tell me that. They let me think it was my idea and that I was going to sell Brennan on the need for a biography...and then that I should be the biographer, as well. So, I thought this was going to be some Herculean...you know...sales effort...I now know that’s not the case because I don’t think I’m that good a salesman. So, Brennan was looking for somebody and I had the good fortune to have that introduction from Mikva. And then I think I earned his trust.

[00:02:41] GWorks—Mr Stern, how did you become involved in Justice Brennan: Liberal Champion?

[00:02:46] S. Stern—Well, I joined Steve as a co-author in 2006. I had a similar background in the sense that I am both a lawyer and a journalist. And, I think that that was Justice Brennan’s vision of who he wanted for his biographer. He wanted a book that would be accessible to the public—not just for lawyers and law students—something that an average person, if they were interested in his tenure, and particularly the legacy of the Warren Court, could pick this book up and read it. And so, that’s how we approached the writing of it. We tried to make it accessible. And hopefully we’ve achieved that.

[00:03:24] GWorks—What was the biggest challenge writing the book?

[00:03:29] S. Wermiel—Well, for me, it has been a challenge all along. I put the book down for about ten years, which sort of explains why it has taken so long, and then was very fortunate to find Seth when I was ready to pick the book back up. I probably have always been overwhelmed by the amount of material. And Seth did a brilliant job synthesizing hundreds of thousands...I don’t know...tens...at least tens of thousands of pages of material. Maybe its even more than tens of thousands. And it was not something that was easy for me to do. It wasn’t easy for him but he did a magnificent job of it.

I think it has always been hard to...figure out whether you were really capturing Brennan. I mean, you know, writing someone’s biography, even when you knew the person and had time to ask the person lots of questions, it is still a challenge to feel like you’re really capturing the person. I think we’ve done it. I give Seth huge credit for his role in that.

[00:04:40] S. Stern—I think judicial biography in particular is a real challenge because you’re trying to balance so many different things at once...You’re trying to balance his work on the Court with his personal life. How much do you get into very individual decision?  How much do you pull back and give context for different areas of law?

We did make a few decisions that I think helped guide us. We sort of put a minimum on his pre-Court tenure; put the focus on his Court tenure. And we did really try to write this book down the middle. Even though it is an authorized biography, we didn’t set out to write something that is hero worship or condemn him. I think we give him the credit where he’s due. Whether you love him or loathe him, his influence is tremendous. But also call him to task...take him to task on questions and issues where we thought that was necessary. And so, I hope it is a book that does read down the middle.

[00:05:36] GWorks—Did Brennan ask after your progress?

[00:05:41] S. Stern—Yes...When he retired, he was very interested in how it was coming along. He read a couple of chapters...Complimented me on those chapters. But, yeah, he was clearly frustrated that it wasn’t finished while he was still alive. 

[00:06:01] GWorks—Did Brennan say to you what he thought about the challenges writing the book presented?

[00:06:06] S. Wermiel—No. He was too gracious….You know, he never...I mean…his warmth and...charm were...attributes to a fault, in a sense. I mean, occasionally he would ask how it was coming and I would say, ‘Oh, I’m...you know...I’m finishing a chapter and I hope to send it to you. I’ve had a lot of other things going on.”  And he would say, ‘Well, don’t you worry about it, Steve. You just take your time. I’m sure you’re doing fine and I understand that you’re busy.’  You know, it was that—it was always that kind of response. I would hear from other people that he was upset and frustrated. But he would never want to make me feel badly.

[00:06:55] S. Stern—Now, this is entirely self-serving. But, there are aspects, there are ways that the book is better for having taken longer. There are papers of some of his colleagues, such as [Justice] Lewis [F.] Powell[, Jr.] and [Justice] Harry Blackmun that weren’t available earlier. And they are a tremendously rich resource. People are more candid with the passage of time. Members of his family and clerks that we went back and spoke with: They are just more candid than they would have been during...when he was alive. And so that added an additional richness, particularly regarding his personal life. And there’s just, technologically, there are ways that researching is easier now, with the Internet and digital archives of newspapers. We could search every last reference that was ever made to him. And so, hopefully, I do...I do honestly believe, putting aside my involvement, that the book is better now than it could have been then for those reasons.

[00:07:48] GWorks—Brennan didn’t vote. Did he explain to you how and why that happened?

[00:07:53] S. Wermiel—I don’t...I think it actually started, if I understood him correctly, I think it sort of started as an accident and then turned into a philosophical thing. I think he…missed the ’52 presidential election for some reason and then the ’56 presidential election...I think the ’52 presidential election...he was moving...

    [00:08:24] S. Stern—...he had moved, yeah...

[00:08:25] S. Wermiel—...he had moved locations and hadn’t registered, yet, in the new location. And then in ’56 he’d moved to Washington and didn’t do anything about it. And then I think he sort of decided that he liked it...that it felt right to not have people wondering who he was voting for and how he was voting...it just kind of had the right feel to it.

[00:08:50] GWorks—Did Brennan announce that he didn’t vote?

[00:08:55] S. Wermiel—No. I just think it...I think in his own mind inevitably reporters would have been asking him, people would have been speculating. And so he was just happy that, if anybody did ask him...you know...he didn’t have an answer.

[00:09:12] S. Stern—What’s funny is that he was so revealing about almost everything in his interviews with Steve. But, the one question that Steve could not pry out of him is, had he voted, would he have voted for President [Dwight D.] Eisenhower. That was like the deep, dark secret he could not get out of him. So...

[00:09:28] GWorks—What about Brennan surprised you the most?

[00:09:33] S. Stern—I think that contrast between the conservative, private man and the liberal Justice. It’s a...it’s a fascinating contrast and it’s not always easy to reconcile the two. But it makes for a richer book and a richer person when you have those sort of multiple dimensions to a person. 

[00:09:53] Wermiel—I also think...I totally agree that that is maybe one of the biggest surprises. The other is maybe a more subtle point. Given the intellectual giants that Brennan had been surrounded by...or at least what the...what the legal establishment viewed as intellectual giants, and everything I sort knew about those people and my expectation that Brennan was just a tactician, I was surprised at how intelligent and thoughtful and deep and reflective  and...what a really smart man he was. Not that I expected him to be ignorant. But that I didn’t necessarily expect to have sort of philosophical discussions with him about rights or about the role of the Court...and that sort of thing...and so...he was a much more thoughtful, much more intellectual individual than I expected to find when I started.

[00:11:06] GWorks—What should readers understand from Justice Brennan about where and how the Court fits into the picture of American government?

[00:11:12] S. Wermiel—Well, I think he’s the...he really represents...what I think is a very important image—not the only one—but a very important image of the role of the Court in American society. He really represents the counter-majoritarianism of the Court. He really is sort of the embodiment of the view that there will often be times when the Court is the only institution that can protect a right or protect an interest because everybody else is responsive to voting majorities and the Court isn’t and can therefore have the ability to play that role. I mean, I think that over and over and over again, you know that’s true in his Church-State opinions, it’s true in his Free Speech opinions. He’s articulating the views that most often would probably not garner popular support. And so I think that’s a really critical view of the role of the Court.

[00:11:23] S. Stern—I think that an interesting and important aspect is the—putting aside the public...there were backlashes to many of the decisions and so the opinion of the Court would sort of come and go but he cared deeply about the Court as an institution. And, putting aside his role as a Justice, didn’t want to do anything personally that would negatively impact the...the...sort of legitimacy of the Court as an institution. And he did take it to an extreme. He essentially, after [Justice] Abe Fortas was forced from the Court because of ethical questions, he [Brennan] withdrew almost entirely from public life. But, he felt that it was that important that there should be no question about the Justice should do anything that might cause the public to question them and their actions outside of the Court. And that love for the Court as an institution, I think that’s an important lesson for justices of any ideological stripe.