In the opinion of many, Justice Brennan was the most influential member in the US Supreme Court's history

 

The first sitting of the United States Supreme Court took place on February 1st, 1790. When Justice Brennan retired from the Supreme Court in July 1990, on grounds of ill-health, he was 84 and had served in the Supreme Court for 34 years.

Only five members of the US Supreme Court had ever served longer. He had been formally nominated to the court by President Eisenhower in 1956 and his appointment was confirmed by the Senate three months later. The only senator to vote against confirmation of his appointment was Joseph McCarthy.

At the date of Justice Brennan's retirement, 108 justices had sat in the Supreme Court since its establishment and Justice Brennan had sat with 22 of those. His tenure of office straddled the period of eight presidential administrations. In the opinion of many people he was the most influential member in the Supreme Court's history. He had a profound and sustained impact on public policy in the United States for most of the term of office. During his time in the court Justice Brennan wrote 1,360 opinions, of which 461 were majority opinions, 425 dissenting, and 474 were other opinions. Only Justice Douglas, who had served 36 years in the court, wrote a greater number.

When he was appointed to the US Supreme Court, Justice Brennan was already a member of the Supreme Court of New Jersey and before that he had been a member of the New Jersey Superior Court, from which he had been elevated to the appellate division of the Superior Court of New Jersey.

He was born in Newark, New Jersey, in 1906, the son of Irish immigrants and the second of their eight children. His father, also William J. Brennan, and his mother, Agnes McDermott, came from the Frenchpark area of Roscommon. They first met in the United States, where they were married in 1903. His father had emigrated when he was about 20 and settled in Newark, New Jersey, where initially he was employed as a stoker in giant coal-burning furnaces in the days of signs which warned: "No Irish need apply".

His work was particularly hard and unpleasant and the working day was 12 hours. In later life, Justice Brennan stated: "Everything I am, I am because of my father." His father was an ambitious and hard-working man and after some time became an officer in the union which represented the coal workers. He eventually became prominent as a reform politician in New Jersey, always striving to improve the lot of the working men.

William attended parochial and public elementary schools and high school, and graduated with honours from the Wharton School of Finance and Commerce at the University of Pennsylvania. At the age of 21, shortly before graduation, he married Marjorie Leonard, who was of Irish and French ancestry, whom he had met while he was still at school.

AT Harvard Law School he was among the top 10 per cent of the students to graduate in 1931, having won a scholarship which enabled him continue his studies after his father died at the end of his second year there. He returned to New Jersey to practise law and was admitted to the New Jersey Bar and became a very eminent trial lawyer specialising in labour cases.

At Harvard he was president of the Legal Aid Society, which supported giving free legal advice to people who could not afford it.

From this can be traced his deep concern to secure justice for indigent defendants in criminal trials, just as his recollection of his father's early struggles in the labour market left him with an abiding concern for the fragility of the unprotected lives of working people and a determination that they should also share the benefits of the protection of the US constitution.

Bitterly opposed to the death penalty, he wrote many eloquent opinions on the subject. He firmly believed that the death penalty was a barbaric and inhuman punishment which violated the constitution. He never succeeded in persuading all of his colleagues to that point of view, but it was a view shared by a small number of his colleagues.

When the United States entered the second World War, he joined the army and was commissioned as a major. He served as a member of the staff of the Under-Secretary of War and was also assigned to the legal division of the Ordnance Department. His expertise in labour law and labour relations was utilised by the US government during the war in dealing with sensitive problems in this area, particularly on the West Coast. He was awarded the Legion of Merit of the army and was discharged with the rank of colonel.

Returning to his law practice in New Jersey, he became one of the most eminent lawyers in that state and was very actively involved in court reform. Although he was a registered Democrat, he was not active politically.

His private law practice was so successful and so extensive that there was some surprise at his decision to join the New Jersey judiciary. But there was even more surprise in September 1956 when this registered Democrat was nominated to the Supreme Court by Republican President Eisenhower.

Eisenhower did so on the recommendation of the then Attorney General, Brownell, but also bearing in mind that there had not been a Catholic member of the United States Supreme Court since the death of Justice Frank Murphy in 1949. From a strictly political point of view one can see the wisdom of Eisenhower's political motives, with a presidential election looming within two months, in offering a Supreme Court place to a Catholic Democrat who, by the standards of the day, was still young at the age of 50 and who was already a member of the Supreme Court of New Jersey.

Although it has often been claimed that in later years Eisenhower described his appointment of Earl Warren as Chief Justice and of Brennan to the Supreme Court as his two biggest mistakes, there is no evidence whatsoever to support that story. On the other hand, the view has been expressed that Eisenhower got precisely the political result he was searching for in making these appointments.

Interestingly, Earl Warren, who was of Norwegian descent, had had a somewhat similar family experience as Brennan. His father had been a very active union man and had been severely punished for his union activity. Warren was 15 years older than Brennan and had been twice Republican Governor of California, where he had also been previously Attorney General, and in 1948 had been the Republican nominee for US vice-president.

As in Brennan's case, Eisenhower had also nominated Warren as Chief Justice under a recess appointment, that is to say, during a period when the Senate was not in session on September 30th, 1953, almost exactly three years before he made a similar recess nomination of Justice Brennan. In each case the formal confirmation of the appointment by the Senate came within a few months.

For more than a third of a century Justice Brennan was the dominant figure in the United States Supreme Court and, as a result, perhaps the most influential political figure in the United States in the years after the second World War. He has been described as being "more humane than Holmes, broader in outlook than Brandeis, more practical and flexible than Black, a finer scholar than Warren, more eloquent than Hughes and more painstaking than any of them". One must be aware of the awe in which US Supreme Court Justices are held by the public in the United States.

Known especially for his humanity and for his innate decency, Justice Brennan treated everyone he met, regardless of station, with a profound human grace. He often gave the impression of being more curious about his visitors than they appeared to be about him. He never forgot his Irish origins and took a great interest in the country. He was always very happy to receive visitors from Ireland, even students, whose American fellow students were often bewildered by the fact that such an eminent person should be so accessible to a student.

Among the many honours which he received from universities and academic institutions, one which gave him great happiness and satisfaction was the honorary LLD conferred on him by the National University of Ireland. He was an honorary bencher of King's Inns in Dublin and visited Ireland many times. At the lunch given in the great hall of the United States Supreme Court to honour his 90th birthday on April 25th last year, among the guests were the Irish Ambassador and his wife.

It was in this great hall a little more than a year later that his body lay in state on July 28th, four days after his death. After the funeral Mass at the Catholic Cathedral of St Matthew the Apostle in Washington, he was buried with full state honours in Arlington National Cemetery.

His wife, Marjorie, had predeceased him in 1982. He later married Miss Mary Fowler, also of Irish descent, who had been his secretary for 25 years. He is survived by his wife, by the three children of his first marriage, his son, William J. Brennan, who is one of the most distinguished court counsel in the United States, his son, Hugh, and his daughter, Nancy, and by numerous relatives in the United States.

Justice Brennan was not the only Irish-American to have served in the US Supreme Court. There was also Justice Frank Murphy, who was born 16 years before Justice Brennan. He served with the American Forces in Europe in the first World War and then pursued graduate studies in London and Dublin. He was nominated to the Supreme Court by President Roosevelt in 1940 and died in 1949 at the age of 59.

The only Irish-born person to have served in the court was William Paterson, who was nominated by George Washington in 1793 and served until 1806. Paterson was born in Co Antrim, from where his family emigrated in his childhood.

Justice Brennan had a great belief in the dignity of human beings, irrespective of race or origin, and he had the concept of a higher law which proclaimed that man had inherent inalienable rights simply because he was man and that the law must be concerned with seeing things whole, and draw its validity from its position in the entire scheme of things.

He drew inspiration, significantly, from the fact that the US constitution was written in the present tense and that the protection of human liberty it proclaims meant protection today.

Justice Brennan's opinions covered such a wide area of American law and life that a great body of legal literature has been devoted to them. He defended free speech and due process of law and equal protection. He once said that judges must be sensitive to the balance of reason and passion that mark a given age and the ways in which that balance leaves its mark on the everyday exchange between government and citizen.

In a book published shortly before his death, entitled Reason and Passion, almost 40 contributors reviewed his life and his immense contribution to the law. His former colleague, Justice Blackmun, stated in that book that Justice Brennan "must be classified as one of the great justices of our time and indeed of all those who have served in the Supreme Court of the United States. As he exerted profound influence upon his colleagues over the long period of his service, we are all the better because of that influence".

In the area of freedom of expression - his great opinion in the famous case of the New York Times v Sullivan - he did not subscribe to the notion that the press had different and special rights under the constitution. But he was of the opinion that individuals who are sued for libel are entitled to the same first amendment guarantees.

Justice Brennan did not subscribe to the notion of press exceptionalism. He saw the press clause on the first amendment as one part of the freedom that protects citizens as it does journalists in their right to speak out.

The place of Justice Brennan is to be found not only in statutes and jury verdicts, but also in state courts, because an entire generation of judges were educated to receive his ideas as orthodoxy which they now apply.

He was always quick to disclaim too much talk about his enduring influence. He stressed that he served in a court of nine. The strides which were made during his tenure in the court he claims were made as a team, that most opinions that bear his name could not have existed without his colleagues' input and votes.

He claimed he was never alone, except occasionally in dissent, and he modestly denied that there was any "Brennan" legacy that could be tested out and considered on its own merits. He treated the US constitution as a charter of human rights and human dignity. It was, he said, a commitment to the ideal of dignity protected through law.

Justice Brennan took the view that the quest for the freedom and the dignity and rights of man, although always old, would never end. This he frequently illustrated by his favourite quotation from W.B. Yeats's play, Caitlin Ni Houlihan - "Did you see an old woman going down the path?" "I did not," replied Patrick, "but I saw a young girl and she had the walk of a queen."

Two years ago, many of Justice Brennan's admirers honoured him by endowing the Brennan Center for Justice at New York University School of Law, a non-partisan litigation and research center.

Justice Brian Walsh is a member of the European Court of Human Rights and a former member of the Irish Supreme Court