Marsha S. Berzon, The Common Man?, 89 Texas L. Rev. 1395 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010))

In her review of Justice Brennan: Liberal Champion, Judge Marsha S. Berzon provides a unique perspective on the life and jurisprudence of the late Justice Brennan. Drawing on her experience as Justice Brennan’s first female law clerk, she argues that historians should not discount Justice Brennan’s progressive decision-making as a member of the court simply because he was reluctant to follow through with such ideals in his own personal life. Instead, she admires his ability to recognize sexual discrimination as wrong, even prior to fully divorcing himself from engaging in such discrimination. In her review, she recounts the story of her clerkship application, starting in rejection and ending in a rewarding position in Justice Brennan’s chambers.

Larry Kramer, Believing in the Goodness of People, 89 Texas L. Rev. 1403 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010))

Judicial biography, writes Dean Larry Kramer, is a difficult genre.  The work of judges is not often exciting and cases that a judge decides tend to make up the substance of a judicial life.  But, Kramer notes, reading about lawsuits can be less than stimulating.

In reviewing Justice Brennan: Liberal Champion, Kramer finds the authors “were unable to surmount the inherent limitations of the genre.”  Kramer notes that the authors faced some serious constraints: Justice Brennan’s life was not particularly interesting before he went on the bench, he was involved in almost nothing off the bench, and he was extremely reserved in and about his personal life.  Although Brennan was a friendly, gregarious, and likeable person, Kramer thinks that these qualities themselves made up a form of reserve.

Another problem Kramer highlights is that the biography took twenty-five years to complete.  547 pages, the majority of which describe case decisions, is too much, no matter the quality of the writing.  The authors do, however, include some interesting facts throughout.  For example, Justice Brennan experienced discomfort with women clerks.  Also, he was the Court’s only member with prior judicial experience when he was appointed.

The more important question, argues Kramer, is how did this ordinary man become such an extraordinary judge?  Kramer spends some time discussing Brennan’s legacy and his accomplishments as a judge.  Brennan was a coalition builder and a leader among his colleagues.  Kramer thinks that part of his success in these roles is due to the fact that Brennan was someone who did not hate.  That is, he was without anger, without malice, and without bitterness.  Indeed, writes Kramer, he “had a genuine, almost automatic, empathy for everyone and everything.”  It was Brennan’s ability to inspire people, both personally and through his opinions, to strive to do and be better for which Kramer will remember him.

Frank I. Michelman, Our Liberalism, 89 Texas L. Rev. 1409 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010))

Stern and Wermiel, writes Professor Michelman, claim that Justice Brennan: Liberal Champion is a tale of surprise.  Not only did Brennan’s service on the U.S. Supreme Court turn out liberal, but it also turned out to be historically momentous, as Brennan became arguably the most influential justice of the entire twentieth century, not to mention the most forceful and effective liberal ever to serve on the Court.

Michelman looks closely at these claims.  He notes that Holmes and Brandeis may challene Brennan as the most influential justice of the twentieth century.  Michelman also questions the second claim, wondering whether Brandeis, Frankfurter, Warren, Black, Douglas, or Marshall might have better claims to being the champion liberal justice in the Court’s history. 

Michelman makes note of the celebratory tone of the book regarding Brennan’s liberalism, which never expresses doubt about Brennan’s liberal cause.  But Michelman is unsure exactly how Brennan’s liberalism should be classified.  While the book provides a profile of it in the form of data points, Michelman writes that it is left to the reader “to connect the dots as liberalism.”  He argues that Brennan is not a classical or pragmatist liberal, as Brennan was “a stout defender of the uses of reverse race-based discrimination, of the state’s power to impair undoubtedly lawful property holdings for non-urgent reasons, of ‘welfare’ at taxpayer expense.”  He also acknowledges that the authors are not writing as general historians but instead might be identifying Brennan as a liberal within the contemporary political polemical meaning of the word.  But he does not think this is quite right either.

Instead, Michelman argues that the best fit is “‘liberal’ in a sense akin to what Rawlsian political philosophy has in mind.”  He thinks this is what the Stern and Wermiel meant by the word, even if they didn’t intentionally say so.  The egalitarian views of the Rawlsian group liberals with which Brennan should be identified, writes Michelman, come “from the political–philosophical ideas of Immanuel Kant.”  He then details how Brennan’s judicial views align with this group of liberal thinkers.  Michelman finds it somewhat surprising that the authors have such a historically recent philosophical turn on the term “liberal.”

Robert M. O’Neil, A Justice for All Seasons, 89 Texas L. Rev. 1417 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010))

In the opening of his review, Professor O’Neil states that “[a]ny lingering doubt [about the durability Justice Brennan’s legacy on the Supreme Court] has now been allayed by the publication of Stephen Wermiel’s and Seth Stern’s prodigious biography,” Justice Brennan: Liberal Champion.

O’Neil details how Brennan selected Wermiel to be his official biographer in the 1980s.  Wermiel enjoyed great access to both the confidential papers and personal insights of Brennan.  Wermiel also continued gathering material after Brennan’s retirement, joining the Justice and his former clerks for their annual dinner.  In the 1990s, amid fear that the biography would not be published, Seth Stern joined Wermiel in the writing and researching to accelerate the process to its completion.

This extensive process helped correct some historical inaccuracies.  For example, President Eisenhower was said to have expressed regret over his Supreme Court selections (Brennan and Warren), calling them his two mistakes, which he never actually did. 

O’Neil also notes that “a striking value of the book is the authors’ capacity to distill areas of emphasis that transcend chronology.”  One such area is Brennan’s role as a judicial colleague, which included his notable ability “to craft tenuous majorities for important civil rights and liberties.”  Another important role for Brennan was that of mentor to his clerks.

O’Neil writes that the authors have been “realistic about the limitations of an ultimately imperfect ‘champion.’”  They include coverage of a variety of challenges Brennan faces, such as his first wife’s illness as well as the family’s persistent penury.  For details of family and collegial insights, the authors were forced to rely by necessity on “Nancy Brennan as the sole actively involved family survivor.”  O’Neil adds a word of caution in this respect.

O’Neil lastly discusses the authors’ characterizations of the Justice, such as “liberal” and “First Amendment champion.”  He notes that much has been written already about these issues, and concludes that “one should read Liberal Champion with full realization of the limitations and imperfections of its subject, but with no lesser measure of admiration both for the Justice and for the long-sought but most welcome biography.” 

Geoffrey R. Stone, Selective Judicial Activism, 89 Texas L. Rev. 1423 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010))

In this review of Justice Brennan: Liberal Champion, Professor Stone examines Brennan’s jurisprudence and asks whether “the pejorative ‘judicial activist” [is] warranted.”  Stone first looks at the Court’s economic substantive due process decisions before Brennan joined the Court.  These decisions, writes Stone, “represented a highly controversial form of conservative judicial activism.”  Critics of this type of jurisprudence learned different lessons.  On the one hand, some, like Justice Frankfurter, decided that judicial activism was illegitimate and unwarranted.  Others, like Brennan, thought that judicial activism was not necessarily wrong.  But Lochner v. New York was not an appropriate case for judicial activism. 

So, it was this concept of selective judicial activism that shaped Brennan’s jurisprudence.  This view, argues Stone, “is deeply rooted in the original understanding of the purpose of judicial review in our system of constitutional governance.”  In light of this, Stone discusses the Framers and the contested inclusion of the Bill of Rights in the Constitution.  And it was an “originalist” conception of judicial review, Stone writes, that informed Brennan’s selective judicial activism.  Given that anti-majoritarian decisions of the kind Brennan famously wrote tend to not sit well with the majority, it is unsurprising that his jurisprudence thus received harsh criticism, especially from the political arena.

Stone next examines the shift in the judicial makeup of the Court.  The Court had become just as conservative by 1993 as it was liberal in 1968.  But the meaning of “conservative” had also shifted in the modern era.  Previously, it meant a justice committed to judicial restraint.  In the modern era, it came to mean a form of selective judicial activism.  Stone writes that the jurisprudence behind modern conservative decisions to, for example, hold unconstitutional affirmative action programs and gun control regulations “has about it the distinctive air of Platonic guardianship,” exhibiting no judicial restraint.  Stone argues that while there is a discernable conception of judicial review beneath Brennan’s use of judicial activism, there is no similar explanation for the jurisprudence of contemporary conservative judicial activists.

What would constitutional law look like today had justices with the same vision as Brennan remained a majority on the Supreme Court?  According to Stone, such a counterfactual Court might have held, for example, “not that corporations have a constitutional right to spend millions to buy the elected representatives of their choice, but that public officials cannot constitutionally use partisan gerrymandering to ensure their perpetuation in power.”  Stone concludes that interpreting the Constitution is not a mechanical, value-free enterprise.  Instead, as Brennan insisted, the Court’s responsibility in this regard is to “keep the community true to its own fundamental principles.”