“Ask the author” with Stephen Wermiel and Seth Stern

On October 7, SCOTUSblog hosted a “live-chat” with Stephen Wermiel and Seth Stern, the authors of Justice Brennan: Liberal Champion.  Here, the authors kindly agreed to answer a series of follow-up questions for our readers.

Q. In writing this book, you had unprecedented access to Justice Brennan and, after he died, to his papers. Stephen, in particular, was granted a number of interviews with Brennan, and became intimately familiar with his work and with his relationships with the other Justices. Why do you think Justice Brennan granted you this level of access?

STEVE:  As a careful reporter at the time, I started slowly with the access. I interviewed him but only gradually pushed to see his papers and files. The initial access he granted me was, I believe, because he wanted his story told after 30 years on the Court. He was thinking about his legacy at age 80. Over time he came to trust that I could use his papers and files responsibly and, I think, believed this kind of access would produce a better, more accurate biography that both captured the importance of his role and portrayed the working of the Court accurately.

Q. Stephen, when you began interviewing Justice Brennan, he had already become a legend on the Supreme Court. What was most surprising or interesting to you when you met and came to know the man behind the legend?

STEVE: There are several different answers. First, I got to see and experience his legendary warmth and unassuming personality; one might not have believed the extent to which these existed without experiencing them first hand. Second, even as he turned 80, I got to see a truly impressive mind at work. Third, when I first started interviewing him, his memory was still very sharp; it faded some during the years I spent with him, but it was remarkable to see the amount of detail about cases, about the world that he retained. Fourth, I was perhaps most surprised by the genuine affection he had for his colleagues; it was hard for me to imagine that you could disagree so sharply and so often with William Rehnquist, a man who embodied the opposite approach on just about every issue, and yet like and admire him as a colleague as much as Brennan did.

Q. After Justice Brennan passed away, you had exclusive access to his papers. What was the most surprising thing you came across as you reviewed them?

STEVE: Not a very exciting answer, I’m afraid: while he was alive and after he died, I was consistently struck by how much the Court did its work in a thoughtful, rational, process, exchanging written drafts and memos until as much rewriting had been done as was likely or possible.

Q. In the book, you suggest that Justice Brennan may have felt betrayed, following the publication of The Brethren and a number of leaks in the post-Watergate era, by the press and some of his clerks and fellow Justices. Can your book be seen, in a way, as a response to that point in Justice Brennan’s life?

SETH: Brennan certainly took exception to the way The Brethren portrayed the Court as a political institution with Justices rather than legislators roaming the corridors trading votes. The Brethren also made it seem like every strong dissent was evidence of personal animosity. This is not the way the place works. The bulk of what they do is in writing and involves memos negotiating very specific and nuanced language. It really is not vote trading. And there surely are private likes and dislikes, but they have to get along, they have to sit back down at the table again tomorrow.

Q. Did you feel, in writing the biography, that you had to respond to the charges made by that book and those articles?

STEVE: I didn’t feel that we had to respond, but we were trying to portray the Court accurately as best we could, and when that differed from popular accounts, it was important to say so.

Q. Do you think, that by granting you such broad access to his record, Justice Brennan was attempting to “set the record straight”?

SETH: Brennan began cooperating with Steve in 1986, the year he turned 80 and celebrated his 30^th anniversary on the Court. He certainly had started thinking of his legacy and viewed this project as a way of shaping how people viewed his tenure. Brennan had secretly assisted law professor Bernard Schwartz on his biography of Earl Warren, Super Chief. Brennan provided him access to term histories from the period when Warren was chief justice and case files not yet open to the public. But Brennan was disappointed with the result, which he thought was too dense for a general audience. That’s part of the reason he cooperated with Steve, a journalist-lawyer, who he hoped could make his biography more accessible to the public.

As we point out in the book, Brennan was furious about The Brethren but was willing to provide a select group of scholars and journalists access to his term papers and then opened up all of his files to Steve, which would seem to be an apparent contradiction. He made a distinction in his mind between what he considered “responsible” scholars and journalists.

Q. In the book, you highlight the many contradictions between Justice Brennan’s judicial philosophy and his personal and professional beliefs. For example, the Justice was an outspoken champion of free speech, but he abhorred the idea of pornography. Likewise, he made a name for himself as a defender of the rights of women, but he only hired a female clerk after it was pointed out to him that, were he to refuse, he could be sued under the very law he had upheld. Do you think it’s possible to reconcile these contradictions?

SETH: That contradiction is the most fascinating theme we explored in the book. It runs contrary to the traditional critique of liberal activist judges who are accused of reading their own personal preferences into their legal opinions. That can’t be said of Justice Brennan. I don’t know if we can entirely reconcile Brennan the judge and Brennan the person. He was a private person who compartmentalized his life and even though he was extraordinarily outgoing and friendly didn’t necessarily let many people at any phase of his life get a glimpse of the private person. That sort of compartmentalization extended to his work at the Court.

Q. Did Justice Brennan recognize the contradictions between his legal and personal beliefs, and if so, how did he reconcile them?

STEVE: He recognized them and didn’t feel the need to reconcile them. He was adamant that his personal, private views were not what mattered, that his obligation was to decide the cases before him according to his best ability to discern what the law required. So in a sense he would not have seen them as contradictions at all.

Q. Can you comment on how Justice Brennan may have developed these potentially conflicting views?

STEVE:  Again, I am not sure he would see them as conflicting. He believed the Constitution had to be read to broadly protect rights and dignity, that that was the fundamental purpose of the document. But he was also entitled to his own private likes and dislikes, biases and preferences. That is true of any person, but Brennan felt strongly that what he did as a Justice was different than his personal views.

Q. You call President Eisenhower’s selection of Brennan as a nominee “rather cursory” and suggest that the President may have later expressed regret over his choice. Do you think that the unanticipated import of Brennan’s confirmation has played a role in how later Presidents have viewed their Supreme Court selections?

SETH: Brennan certainly wound up being more liberal than Eisenhower and his advisers might have anticipated but that wasn’t their most important consideration. The vacancy opened up in the Fall of 1956 when Eisenhower faced an unexpectedly close reelection campaign (he ultimately won by a large margin) and he sought a nominee with specific criteria, a Catholic Democrat with experience as a lower court judge. Brennan’s work on behalf of judicial efficiency had brought him to the attention of Eisenhower’s advisers and made him an even more attractive candidate. This intense focus on ideology is a more recent priority.

Q. Your book suggests that President Eisenhower, when he nominated Brennan, had no idea that Brennan would become a liberal powerhouse on the Court. Do you think that it’s possible for Presidents to successfully nominate and confirm Justices they know will become leaders of one of the Court’s ideological blocs, or does such a role develop over time during the Justice’s tenure on the Court?

STEVE: It would not have been possible for Eisenhower to predict the performance of his nominees because he really did not engage in ideological screening. The politics of Justice Brennan’s nomination were electoral politics, not the politics of shaping the direction of the Court.  I think President Clinton’s and President Obama’s Supreme Court nominees have been (or in the case of Elena Kagan will be) about as progressive as those leaders hoped they would be, and President George W. Bush’s nominees have been as conservative as he hoped. The same holds true for President George H.W. Bush’s selection of Clarence Thomas. So for all the discussion about the difficulty of predicting the performance of Justices, I think the last seven selections have, so far, not produced any major surprises.

Q. In the past eighteen months we’ve witnessed two Supreme Court confirmations, and both times, a great deal of attention was focused on the idea that the nominees’ backgrounds and personal lives would affect their jurisprudence on the Court. Do you think that Justice Brennan’s jurisprudence was influenced by his childhood and his life outside the Court, and if so, how?

SETH: There’s no doubt that Brennan’s worldview was shaped by his father, William J. Brennan, who was a labor leader and local politician in Newark, NJ. Brennan certainly inherited his father’s notions of economic justice, but his father didn’t necessarily instill in Brennan the importance of protecting civil liberties. Brennan Sr. had few qualms about cracking down on obscenity, subversives and communists as a Newark city commissioner. Life experience doesn’t necessarily explain the roots of Brennan’s empathy for the poor, minorities or women. He grew up middle class, had little exposure to African Americans, and practiced corporate labor law.

STEVE: But Brennan did say that the values his father instilled in the family led them to be New Deal Democrats, and in the context of the 1920s, Brennan’s father did have a fundamental sense of treating people fairly.

Q. In your book, you discuss Justice Brennan’s trademark strategy of crafting arguments which his colleagues felt they could sign on to. Do you think this strategy is still employed by Supreme Court Justices today? If so, who uses it? Do you think it’s still a successful strategy?

STEVE: To some degree all Justices hope to gain five votes and welcome suggested changes from their colleagues. But Justice Brennan took this to an art form, reaching out himself and through his clerks to try to accommodate other Justices. On the current Court, any time there is a close vote, the majority has to work with Justice Anthony Kennedy to secure his vote.

Q. Although Brennan seemed to embrace a strategy of incremental change, your book provides examples of opinions written during his late career that abandon that strategy, alienating his fellow Justices (particularly Justice O’Connor). Can you comment on this inconsistency? Did Justice Brennan ever acknowledge it?

SETH: Justice Brennan underwent a transition in the early 1970s from shepherding the Warren Court’s liberal majorities to lead dissenter trying to prevent two subsequent Chief Justices from rolling back all he had accomplished in the 1960s. He had much more success than he should ever have reasonably expected and broke new ground on issues such as women’s rights and affirmative action. But he also came to take more extreme positions on issues such as obscenity and the death penalty – and occasionally employed more caustic language in dissenting opinions. At times, he wound up alienating the key Justices in the middle and came to regret being too strident.

Q. Do you think that Justice Brennan’s philosophy and jurisprudence have influenced members of the current Court, either by providing a legal framework or by creating a backlash against his progressivism?

STEVE: Both. In the new Supreme Court Term that began on October 4, the two important free speech cases – protests at military funerals and California’s ban on violent video games — are examples of Brennan’s views shaping the legal landscape. But it is certainly also true that the Supreme Court aspects of the conservative backlash that began with the Reagan administration 30 years ago are to some degree a response to the Warren Court and to Brennan’s efforts to carry on those values in the 1970s and 1980s.