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Erik Visits an American Grave, Part 122

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This is the grave of William Brennan.

One of the key liberal jurists in Supreme Court history, Brennan was born in 1906 in Newark to Irish immigrants. His father did something extremely rare in the Irish-American community of that era–something so rare that only an Irishman becoming a cop or firefighter were more rare–he became heavily involved in the local Democratic political machine. Between 1927 and 1930, he served as the city’s Commissioner of Public Safety. William attended Penn and graduated in 1928, which is really impressive at that time for an immigrants’ kid. He went to Harvard Law and practiced labor law in New Jersey for several years. In 1942, he volunteered for the Army and was commissioned as a major, doing legal work for the ordinance divison. When he left in 1945, he was a colonel. He rose in the New Jersey court system rapidly after the war and was appointed to the state Supreme Court in 1951.

In 1956, Dwight Eisenhower had a Supreme Court appointment to make when the less than legendary Sherman Minton retired. He chose Brennan. Are you thinking, wait, the son of an Irish immigrant in the early 20th century became a Republican? No, of course not. But Eisenhower wanted to win European ethnic votes in northeastern states in the election that fall and thought naming an Irish Democrat would help with that goal. Such relatively prosaic and short-term considerations would be absolutely impossible to imagine in a Supreme Court appointment today. And I don’t think Eisenhower really needed these votes, assuming they even materialized, against Adlai Stevenson. But there it was–a Republican had named a Democrat to the Supreme Court. Part of the reason was that Eisenhower’s advisors believed Brennan was a conservative at heart, especially on criminal injustice issues. They were wrong. Brennan was easily confirmed. There was only one Republican who voted against him–a very nice man named Joe McCarthy, who was angry that Brennan had opposed his witch hunts.

Brennan became a leading liberal on the Court immediately and remained so for the rest of his very long career. He was a close confidant of Earl Warren, who assigned him to write several key decisions. Under the Burger court and then especially in the Rehnquist court, he became more isolated and allied with Thurgood Marshall in many cases where they were the only 2 dissenting votes. Not only was Eisenhower’s advisors wrong that he was a criminal justice conservative, Brennan became noted for his strong support for the rights of the accused and the convicted. He abhorred the death penalty and ruled with the majority in Furman v. Georgia. Of course he did the same in Roe and many other cases. At the end of his career, he was actively supporting the constitutional right for flag burning. He attacked the growing idea of “originalism,” which we all know is self-justifying bullshit for right-wing extremism, in harsh terms, calling Ed Meese’s articulation of this “arrogance cloaked in humility.” That might be the nicest thing anyone ever said about Meese, who is a toad and still pollutes us with his pronouncements today.

Brennan finally retired from the Court in 1990. He died in 1997.

William Brennan is buried on the confiscated lands of the traitor Lee, Arlington National Cemetery, Arlington, Virginia.

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  • rfm
    • M Lister

      I’ve been a long time fan of Fugazi (saw them in concert a few times even, and appreciated their old “no cover price above $5 policy”) and before that, Minor Threat. But I have to admit that I never really understood this song. Maybe it’s because I don’t really understand the lyrics (though I think I did read them, when the album first came out.) Can someone explain it to me?

      • BiloSagdiyev

        I have just reviewed the lyrics, and the wikipedia, and can now say with some certainty:
        a) I must not have have this record, just earlier ones, never heard this one before… but they all kinda sound the same to me

        2) Danged if I know what they’re on about. I’ve always thought this band was trying hard not to communicate, like a bizarro version of the hit-you-over-the-head era of Minor Threat

        • M Lister

          Well, I’m glad I’m not the only person who didn’t really get it. And, this wasn’t my favorite Fugazi album. But, it really wasn’t very clear to me, I must admit.

  • N__B

    It’s interesting that the stone has his SC dates rather than his birth and death dates. That practice seems odd to me, even if the person’s career – as is true here – is a big deal.

    • A similar stone last week (the general’s) had the life dates on the hidden side. Note that the stone behind Brennan’s also has (as far as I can see) only the dates of service on the visible side.

      • N__B

        There’s a “literally two-faced to the end” joke in there somewhere, but Brennan doesn’t deserve it.

  • Denverite

    “originalism,” which we all know is self-justifying bullshit for right-wing extremism

    Akil Reed Amar would like a word.

    • M Lister

      There are a lot of liberals who want to claim that “originalism” can be rescued for liberal causes. They are not completely unconvincing. But the harder question, the one that Amar, Balkin, etc. don’t answer very well, to my mind, is why we should want to rescue it, except as a dodge or feigned to conservatives, without being sincere. Better, I think, to just argue for some other, more plausible view. The rule by the dead hand of the past doesn’t have much objective attraction no matter what political views it can be shaped for.

      • Denverite

        There obviously have been thousands (probably tens of thousands) pages written on this, which you no doubt know about and I won’t regurgitate it.

        However, I will say that just from a realpolitik sort of view, it’s valuable to have a “even under his/her interpretive worldview, s/he is still wrong” response to originalists, and to do that, there needs to be a concerted effort to develop a liberal/left theory of originalism (as Amar and others are trying to do).

        • sleepyirv

          I think this gives way too much validation to originalism. Conservatives never argue liberal principles should lead to conservative outcomes, they say liberals have no principles. By arguing within originalism, liberals are suggesting there’s only one school of thought that all ends of the political spectrum consider seriously. I also don’t see the “realpolitik” point of this. Who are we trying to persuade? Conservatives aren’t going to change. The public can see the broadstroke argument where both sides take originalism seriously, but hardly understand all the actual details. And lawyers not interested in constitutional theory are barely any better than the public.

          In other words, it’s a cute argument instead of a good argument that won’t interest the jury or the judge.

          • Denverite

            You’re trying to convince the public of the legitimacy of a particular position taken by the judiciary.

            Look, like it or not, there is something attractive to Joe Shmoe about the position of “the Constitution has a lot of broad and non-specific language, we’ll interpret it by trying to give it the meaning the drafters would.” That makes sense at an intuitive level. When people on the other side respond by citing evolving cultural values or the like, it turns a lot of people off. It’s good to have a direct rejoinder — something to tell the public, “hey, we don’t think that’s the way you should go about interpreting it, but even if you disagree, they’re still wrong [because the relevant question is what the drafters would have thought in today’s cultural environment or whatnot].”

            And that really comes full circle to Erik’s original point — i.e., that “originalism” is just a fig leaf to advance conservative positions. That may be how it started, but it’s not what it is today. There are any number of very smart and very liberal theorists trying to advance a liberal theory of originalism.

            • M Lister

              And that really comes full circle to Erik’s original point — i.e., that
              “originalism” is just a fig leaf to advance conservative positions.
              That may be how it started, but it’s not what it is today. There are
              any number of very smart and very liberal theorists trying to advance a
              liberal theory of originalism.”

              Some of these, like Balkin, I think, are essentially Straussian – they are esoteric theories, not really originalist in any deep sense, but dressed up like it for the Rubes. Some, like Larry Solum’s versions, started out semi-liberal, but, having taken themselves too seriously, have veered into a sort of libertarianism. (I say that as someone who knows and likes Solum quite a bit, but thinks he’s really gone down a wrong path, by means of taking originalism, in a sophisticated but no more plausible version, too seriously.) Now, the garden-variety “living constitutionalism” is also a bit dumb, and does have some of the drawbacks you mention, from a political perspective. A much better approach would have been to try to popularize and make well known something like Dworkin’s “moral reading” of the constituion, an idea that has a lot of inherent attractiveness and theoritical force, certainly much more than originalism – when set out clearly, rule by the dead hand of the past really isn’t very attractive, after all.

            • Roberta

              Okay, but what’s the point of that? It seems like a fun intellectual exercise, and Balkin and Amar are interesting to read, but I do not actually believe the general public gives a damn about whether a constitutional interpretation matches up exactly with how 18th-century white dudes would have understood the terms involved or not. The general public thinks those 18th-century white dudes had the right basic idea about a lot of things, but that we should apply those basic ideas in conjunction with our new understandings of what role government can play in people’s lives, what modern medicine has developed, what roles women and POC and people who don’t own land now play, etc. So what’s the value of it? It seems like an intellectual shell game and the only opponent who is even aware it’s being played are the right-wing hacks, who simply do not care about any argument. It’s not like you’re going to convince them to uphold liberal outcomes because you’ve got a liberal originalist theory. So it seems to me there’s no point.

              • Joe Paulson

                I think it is a matter of degree. Even originalists realize they cannot get an “exact” overlap, given there is so much water under the bridge, but they think original understanding (including mid-19th Century white and black dudes and dudesses etc.) should play more of a role.

                [And, yes, originalism conveniently overlaps with conservative policy points a bit too much to be coincidental. OTOH, often, they slant history to get there, and Balkin et. al. provide a useful pushback. Brennan did too.]

                And, many average sorts are rather concerned about that too — so we hear that Madison or Jefferson supports separation of church and state or something. On some level, many don’t even care about that. Why should we keep on citing the Federalist Papers? They are after all just a much of newspaper essays by mainly two often confused white guys.

                But, many are, so use of original understanding — up to a point — serves as a means to find some common ground and useful lessons. Ditto study of history in general — so, e.g., Amar’s book on the “Bill of Rights” entails a lot of study of history including of the Reconstruction Era. This provides some good lessons as history does. At some point, yes, this can be taken too far.

                • Roberta

                  Hmm. I think it’s certainly valuable to point out the radical intent of the authors of the Reconstruction Amendments. Amar’s done us all a service with that.

                  But taking into account historical context isn’t really the same as originalism, is it?

                • Joe Paulson

                  TBH, I’m not really sure what “originalism” is — so many definitions — but it probably entails looking at the historical context, the understanding behind the text at the time and then feeling bound by it to some significant degree.

                  I don’t know how much Amar feels bound by it. As you say, his study of the history to me is helpful though including if those who feel bound to it would by their own logic have to accept liberal results.

                • Roberta

                  I think my sticking point is that those who have coined, popularized, and politicized the term ‘originalist’ (e.g. Scalia) do NOT feel bound by the understanding of the framers (the framers of the original constitution AND of the Reconstruction Amendments AND of the 19th Amendment) that their words should be interpreted in accordance with evolving mores and conditions.

                  E.g., “cruel and unusual punishment”–isn’t Scalia on the record that he thinks this should only apply to things that would have seemed cruel and unusual in the 1790s? Whereas it seems clear to me that the framers deliberately selected such broad terms because they KNEW what was cruel and unusual would change (indeed, “unusual” is by definition something that changes).

                  So it’s not their own logic that would lead them to have to accept liberal results, because their own logic requires the freezing of constitutional text in 1790 or 1866 or something. That seems to me to be the core of ‘originalism’.

                  And so I guess I think it’s a dubious rhetorical move to take this label, make it mean the opposite of what its coiners intended, and then use your new definition to try to get the coiners to agree with you or else look hypocritical/stupid. Seems like it might be better to just say “We’re not originalists, and neither was James Madison, because that’s not the point of this document.” YMMV.

                • Joe Paulson

                  I sympathize — those who usually use the term come off as insufferable often because even granting originalism should matter, they have a confused understanding of the history. Brennan repeatedly used the same history to advance his own positions.

                  If the common understanding of “orginalism” is the Scalia application, yes, liberal “originalists” seem to be pushing a square peg in a round hole.

      • sleepyirv

        Agreed. Balkin’s book might be the greatest work of concern trolling ever as he argues for liberal outcomes no conservative originalist is going to accept and a doctrine that holds no fascination to liberals. Liberals really should start playing offense against originalism. And the ACS or some other progressive legal group should really start putting together a strong narrative, creating legal arguments, find judicial candidates, etc. in the way the Federalist Society does so easily.

      • Joe Paulson

        It is partially a realistic understanding that people as a whole think original understanding is important. This is not just something conservatives do. The average liberal repeatedly appeals to Madison or Jefferson etc. regarding the First Amendment or some other thing. I think this is taken too far but that’s life.

        So, if it can be shown that originalism will advance your position, including to show the other side that “even if your theory is right, you lose,” it’s helpful. Also, the best approach to constitutional interpretation is a common law approach. And, history is useful there. It’s also useful that original understanding included support of that approach. Plus, the law as a process over time, makes the starting point important. It is only a starting point, but it’s still a point in the process.

        It also is useful when that understanding provides basic truths. If original understanding, e.g. shows the federal government has a broad power over commerce or that equal protection has broad reach, why not use it? Liberal originalism includes a common law component, so we are not talking about the more frozen conservative approach.

        • M Lister

          I’m sorry, but this is really not coherent. a “common law” approach is almost 100% the opposite of an “originalist” approach, insofar as they can be put in relation to each other at all. (A common law approach is one where judges “make law” based on what they think the right outcome is given the general community understanding and morals, typically without there being any written law at all.) The idea that “history is useful” isn’t at all what “originalism” says or means, nor is the idea that “the starting point is important” – no plausible theory denies those claims when they are reasonably understood. If you are just trying to say that common people have, at best, a deeply confused idea about constitutional (or any legal) interpretation, I’ll grant, that, and I’ll maybe even grant that “originalism” is a better bit of rhetoric than any other, but none of this makes a bit of sense as “originalism” or as a coherent theory of constitutional interpretation. I hope we can strive for something better than baffling the rubes with bull-shit, and do think that something like Dworkin’s “Moral Reading” could do that, if it was given the chance.

          • Joe Paulson

            The “common law” approach includes the use of a case by case method of interpreting the law, resulting in development over time, using various doctrinal standards in the process.

            I’m not sure when there was “no written law at all” (the UK had written law deep into the mists of history) and it very well can be used to apply constitutional text. Likewise, it was the method the framers of the Constitution itself was comfortable with and it is logically generally understood that it should be used to apply its text. Plus, it’s a practical and overall reasonable approach, including to advance republican values.

            The approach includes looking at the text of the Constitution and the understandings behind it, and then looking to see how it was applied over the years, case by case. So, yes, original understanding is a good starting point there and if it can be shown that let’s say gender equality meets original understanding [as RBG argues] widely speaking, it is helpful.

            Part of this is that constitutional law is not about one specific thing. Originalists realize, e.g., precedent matters. But, original understanding to them is an important determinant in close cases. If Ruth Bader Ginsburg can show that original understanding is not violated, it is helpful. I know “history is useful” isn’t the only thing originalism says. But, what history said is a very important part of how they apply the law. If we can show that history makes our case, it would help answer originalists.

            Finally, there is again overlap — original understanding entailed an understanding that the Constitution set forth broad guidelines that should be applied as modern understandings dictate. See, e.g., McCulloch v. Maryland where Chief Justice Marshall discusses original understanding and how it understood that the future might bring applications they would only know in the most vaguest way. Balkin uses this to show how liberal legal thought actually often doesn’t clash with original understanding.

  • M Lister

    “William attended Penn and graduated in 1928, which is really impressive at that time for an immigrants’ kid.”

    My impression is that Penn was always less conservative and set on maintaining the old order than some of the Ivy League. I cannot say anything certain about Cornell or Dartmouth (though the later was certainly a hotbed for conservatives later) but Penn was the first to admit women, and my impression is that a lot of the other conservative elements of, say, Princeton, Harvard, or Yale, didn’t really have as much impact there. (That’s certainly the story Penn wants to Peddle today, though whether it’s more than half self-gratifying I can’t say. As a couple times Penn grad, I hope so, but I don’t know for sure.)

    • Crusty

      Oh, you went to the same school as president trump. Cool.

      • M Lister

        Not only that, but I _taught_ for a few years in the school that he was a middling student at! (I’m pretty sure that the department I taught in didn’t exist when he was a student, though.) But as far as my education, it was in totally different branches of the university, and as a grad and professional student, so not really all that much the same thing.

        • Yestobesure

          Think you may have taught a recitation in my first semester. No joke.

          • M Lister

            Maybe! I taught a lot of classes at Penn over the years. I hope it didn’t suck.

            • Yestobesure

              Social Contract class in philosophy dept.
              Didn’t suck.
              One little nugget I remember — in discussing Hobbes you had an aside to effect that some modern thinkers see potential for mini-Leviathans to emerge in a laissez-faire environment, as market participants voluntarily give authority to independent regulatory groups like the credit rating agencies. Was novel to me at the time. Pardon me if I misrepresented the concept as expressed.

              • M Lister

                That sounds very much like it could have been me (though I don’t remember it specifically) and I certainly was the TA for some social contract recitations, so it is very possible. I’m glad that the class/recitation didn’t suck!

    • pluky

      “Cornell was among the first universities in the United States to admit women alongside men. The first woman was admitted to Cornell in 1870, although the university did not yet have a women’s dormitory.” – https://en.wikipedia.org/wiki/History_of_Cornell_University

      • M Lister

        Good to know. That’s around the same time at Penn admitted them, it seems, but probably a bit sooner. The first women’s Dorm (or, at least, one of the first) looked very much like a medieval castle – entry via a bridge that looked like a draw bridge, surrounded by a gate that looked a bit like a moat, and windows that looked like arrow-slits. It’s actually being renovated (not for the first time, I’m sure) now.

  • Drew

    No love for his home state on that stone? I know being a SCOTUS Justice is a slightly bigger deal than the New Jersey Supreme Court, but after all the shit we’ve named after him…

    • BiloSagdiyev

      My first reaction was, “Sure, lord your greatest resumee achievement over the rest of us! How about slipping in a “World’s Greatest Grandpa?””

      • paul1970

        Donald Trump is the world’s greatest grandpa. Lots of people have been phoning him up to tell him this.

        • Paul

          I didn’t know that. Not alot of people know that.

          • Ithaqua

            Sad.

  • Bob Loblaw Lobs Law Bomb

    Amazing to think back to the naive days of 1990, when Brennan (and Marshall) stepped down during the Bush administration. That Souter turned out to be “a Souter” accidentally averted one of the biggest own-goals in recent history.

  • BiloSagdiyev

    Ah, the life of an army lawyer! Did he draft ordinances about ordnance?

    • Thom

      or fire ordnance at ordinances?

      • BiloSagdiyev

        I beleive that’s the responsbility of individual congressmen.

    • wjts

      He did, but they had to be reviewed by an ordained member of the Chaplain Corps.

  • Unree

    Along with his excellent politics and brilliant coalition building, Brennan refused to hire female law clerks. He made exceptions (very few) for a couple of daughters of fellow federal judges. I believe he tried to fob the blame on Mrs. Brennan, claiming she objected to non-secretarial gals in the office and she’s She Who Must Be Obeyed hurr durr. RWNJ justices all have much better records on this point.

    • BigHank53

      He was fourteen when the 19th amendment was ratified and women got the right to vote. I’m not excusing his actions, but ‘product of his times’ and all that. Tough to escape your childhood prejudices.

      • Drew

        That is one half of a good point-the other half is: what about his other contemporaries on the Court? That’s the question that should be answered before you advocate for giving him a pass.

    • M Lister

      Let’s suppose this is 100% correct. (Maybe it is!) Would that make Brennan a worse _supreme court justice_ than any of the Republican appointees (including Souter) since 1980 or whatever? Obviously not. Would it be a personal flaw on his part? Yes, it would be. So what? What is your point?

      • Roberta

        Agreed, entirely. His rulings imposed on all American women are exponentially more important than his sexism preventing him from hiring a handful of female law clerks. A man in that time may well have felt awkwardness about working in close quarters much-younger women. I think it’s laudable that he looked past that to stand up for women’s rights in society at large, even if he couldn’t transcend it in his own personal employment practices.

        On the subject of his contemporaries, they’re mostly not notably better (https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supreme_Court_of_the_United_States). Rehnquist was, funnily enough, but I’ll take Brennan over Rehnquist any day.

    • Joe Paulson

      He eventually had a few.

      (As to clerks, Merrick Garland was one of his.)

  • Joe Paulson

    During the 1960s, Brennan was actually a moderate liberal on the Warren Court, the most liberal justices repeatedly wanting to go further.

  • Worth mentioning that he was originally a recess appointment

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