[Congressional Record Volume 143, Number 108 (Monday, July 28, 1997)]
[Extensions of Remarks]
[Pages E1542-E1544]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         THE PASSING OF A HERO

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                         Monday, July 28, 1997

  Mr. CONYERS. Mr. Speaker, on Thursday, July 24 a great constitutional 
scholar and advocate of social justice passed away. Supreme Court 
Justice William J. Brennan, Jr. served the highest branch of our 
judicial system from 1956 until 1990. His scholarship was at the 
forefront of an intellectual and moral frontier that began in the pre-
civil-rights era.
  Justice Brennan shaped our law and touched our lives in countless 
ways. In the area of voting rights he authored Baker versus Carr, 1962, 
which was one of the cornerstone of voting rights case law. It lead to 
one-person one-vote reapportionment cases. On the issue of affirmative 
action he authored Metro Broadcasting versus the Federal Communications 
Commission, 1990, which upheld two affirmative action programs aimed at 
increasing African-American ownership of radio and television stations. 
In Texas versus Johnson, 1989, Brennan declared, ``If there is a 
bedrock principle underlying the first amendment, it is that the 
government may not prohibit the expression of an idea simply because 
society finds the idea itself offensive or disagreeable.'' And 
continuing in his tradition of protecting the most vulnerable, in 
Goldberg versus Kelly, 1970, he established that it was a violation of 
the 14th amendment's guarantee of due process under law for a State to 
cut off a welfare recipient's benefit without a hearing.
  Mr. Speaker, I rise today to honor this great drum major for justice 
of the 20th century. I submit for the Congressional Record two articles 
from the Washington Post which I believe capture some of the spirit and 
letter of his contributions to our great system of justice.

               [From the Washington Post, July 25, 1997]

                   The Biggest Heart in the Building

                           (By Joan Biskupic)

       Supreme Court Justice William J. Brennan Jr. was remembered 
     yesterday as a bulwark of liberal activism whose effects on 
     America is so great--and his personality so compelling--that 
     even those who disagreed with his views said much of his 
     legacy will endure.
       Brennan ``played a major role in shaping American 
     constitutional law,'' said conservative Chief Justice William 
     H. Rehnquist. ``He was also a warm-hearted colleague to those 
     of us who served with him.''
       ``He had the biggest heart of anyone in the building'' said 
     Thurgood Marshall Jr., son of the late justice. ``Justice 
     Brennan was not just my father's closest and dearest partner, 
     but his hero in the pursuit of equality and justice.''
       Marshall, President Clinton's Cabinet secretary, said his 
     father and Brennan could not have been more different as 
     people, given the backgrounds from which they emerged. ``But 
     they both believed fervently in the very same ideals.''
       News of Brennan's death, coming shortly after noon 
     yesterday, spread quickly among former colleagues and 
     friends. He was known for the force of his opinions--more 
     than 1,000--that embodied the notion that the federal courts 
     should actively seek to right society's wrongs. He was 
     venerated yesterday for his persuasive approach and good 
     humor, and for a charisma that will help him be remembered 
     for generations.
       ``There are few people who are truly extraordinary and we 
     don't always know the reasons why they rise above the rest of 
     us. But he did,'' U.S. appeals court judge Richard S. Arnold 
     of Little Rock, who was a law clerk to Brennan in 1960, said 
     yesterday. ``His chief characteristics were kindness and 
     love--to everybody.''
       Brennan, who retired from the court in 1990 and initially 
     kept up professional and personal contacts, had been in poor 
     health in recent months. He died at a nursing home in 
     Arlington, where he had been rehabilitating after he broke 
     his hip in November.
       A court spokeswoman said Brennan's body would lie in state 
     from 10:30 a.m. until 10 p.m. Monday at the Supreme Court 
     Building. His funeral is set for 10 a.m. Tuesday at St. 
     Mathews Catholic Church in the District.
       All quarters of government reacted to word of Brennan's 
     death. Clinton, who said Brennan's devotion to the Bill of 
     Rights inspired millions of Americans and countless young law 
     students, including myself,'' ordered flags flown at half-
     staff at government buildings, military facilities and U.S. 
     embassies worldwide.
       In addition to Rehnquist, three other of Brennan's former 
     court colleagues issued statements of admiration yesterday.
       Justice John Paul Stevens, who sat with Brennan for 15 
     years and shared some of his liberal views , said, ``The 
     blend of wisdom, humor, love and learning that Justice 
     Brennan shared with his colleagues--indeed with all those 
     privileged to know him--was truly unique. He was a great man 
     and a warm friend.''
       ``Justice Brennan's death means the passing of an era in 
     the history of the Supreme Court,'' Justice Sandra Day 
     O'Connor said. ``In addition to the remarkable legal legacy 
     he left behind, he left a legacy of friendship and good will 
     wherever he went.''
       Justice Anthony M. Kennedy said, ``Justice Brennan was one 
     of the great friends of freedom, freedom for those who have 
     it and freedom for those who yet must seek it.''
       Justice Antonin Scalia, who strongly disagreed with 
     Brennan's liberal approach, nonetheless once called Brennan 
     ``probably the most influential justice of the century'' and 
     ``the intellectual leader of the movement that really 
     changed, fundamentally, the court's approach toward the 
     Constitution.''
       Joshua E. Rosenkranz, a 1987-88 clerk who is now executive 
     director of the Brennan Center for Justice at New York 
     University, said, ``I would be willing to bet that there is 
     not a single person in our nation who hasn't been touched by 
     Justice Brennan's legacy, whether they know it or not.''
       Attorney General Janet Reno said she was sad to hear 
     Brennan had died and added: ``Justice Brennan stood up for 
     people who had no choice. He devoted his long, rich life to 
     helping the American justice system live up to its ideals. He 
     made a difference, and he will be remembered always by all 
     Americans who prize the rule of law.''

       Justice Brennan, Voice of Court's Social Revolution, Dies

       Former Supreme Court Justice William J. Brennan Jr., the 
     progressive voice of the modern court and a justice unequaled 
     for his influence on American life, died yesterday. He was 
     91.
       During his 34 years on the court, Brennan pushed his 
     colleagues to take on a variety of social issues and was 
     widely recognized as the chief strategist behind the court's 
     civil rights revolution.
       He was the architect of rulings that expanded rights of 
     racial minorities and women; led to reapportionment of voting 
     districts guaranteeing the ideal of ``one person, one vote,'' 
     and enhanced First Amendment freedom for newspapers and other 
     media.
       A slight man with a ready Irish grin, Brennan was 
     recognized across the political spectrum not only for his 
     legal mastery but as a defender of individual liberty and a 
     voice of civility. Poor health forced his retirement from the 
     court in 1990.
       ``He was a remarkable human being, one of the finest and 
     most influential jurists in our nation's history,'' President 
     Clinton said yesterday upon learning of Brennan's death. 
     ``The force of his ideas, the strength of his leadership and 
     his character have safeguarded freedom and widened the circle 
     of equality for every single one of us.''
       Justice David H. Souter has said of the man he succeeded on 
     the court: ``One can agree with the Brennan opinions and one 
     may disagree with them, but their collective influence is an 
     enormously powerful defining force in the contemporary life 
     of this republic.''
       What distinguished Brennan was his ability to forcefully 
     articulate a liberal vision of judging. It was a vision that 
     found the essential meaning of the Constitution not in the 
     past but in contemporary life, prized individual rights 
     beyond what was explicitly written in the text, and compelled 
     him to reach out to right perceived wrongs. He called the 
     Constitution ``a sparkling vision of the supreme dignity 
     of every individual,'' and employed it as a tool of racial 
     equality and social justice.
       ``The genius of the Constitution rests not in any static 
     meaning it may have had in a world that is dead and gone,'' 
     he wrote in an essay published in 1997, ``but in the 
     adaptability of its great principles to cope with current 
     problems and present needs.''
       In the confines of the court's conference room and 
     chambers, Brennan was renowned for his cunning and 
     persistence, and relentlessness in winning votes for his 
     side. If a justice initially turned him down, Brennan

[[Page E1543]]

     would begin with gentle persuasion, then offer grounds for 
     compromise, then pull out all the stops to try to win another 
     vote. If he lost, he would pursue the justice in the hope he 
     would win on an issue the next time around.
       In a May 1995 tribute to Brennan to inaugurate the Brennan 
     Center for Justice at New York University School of Law, 
     former appeals judge Abner J. Mikva defined ``a Brennanist'' 
     as ``one who influences his colleagues beyond measure.'' 
     Retired Justice Harry A. Blackmun said Brennan operated in 
     ``quiet but firm tones.''
       Brennan was appointed to the court by President Dwight D. 
     Eisenhower in 1956, three years after Earl Warren became 
     chief justice. And Brennan's unmatched ability to build 
     consensus made him a central figure in the Warren Court and a 
     key participant in its most celebrated decisions.
       He is considered the primary writer of the 1958 Cooper v. 
     Aaron decision that forced school officials to accelerate 
     classroom integration in the face of mass resistance.
       Brennan also was the author of a 1962 decision that 
     permitted federal courts for the first time to hear 
     constitutional challenges to a state's distribution of 
     voters, a ruling that brought new fairness to the sharing of 
     political power between rural and urban America. He broadly 
     interpreted the Constitution's guarantee of due process for 
     criminal defendants, in cases, for example, that protected 
     state defendants against self-incrimination and gave 
     prisoners greater access to federal courts to challenge 
     convictions. ``In a civilized society,'' he wrote in the 
     latter, ``government must always be accountable to the 
     judiciary for a man's imprisonment.''
       He led the majority to bolster the right of free speech, 
     including a 1964 opinion that requires public figures who sue 
     for libel to prove ``actual malice'' on the part of the 
     media.
       To the consternation of his conservative critics, Brennan 
     was not afraid to cross boundaries into areas previously 
     considered off-limits for federal courts. ``Our task,'' 
     Brennan once said, ``is to interpret and apply the 
     Constitution faithfully to the wisdom and understanding of 
     the Founding Fathers. But often it is impossible to make a 
     constitutional decision without basing certain findings on 
     data drawn from the social sciences, from history, geography, 
     economics and the like.''
       When Warren was succeeded as chief justice by Warren E. 
     Burger and then William H. Rehnquist, the court began to move 
     gradually to the right, and many of the rulings from the 
     Warren era were reversed. But several Brennan decisions 
     endured. Among the most important is Baker v. Carr, a 1962 
     opinion that gave federal courts the power to ensure the 
     fairness of voting districts, reshaped politics and broadened 
     participation in democracy.
       Even as he found himself increasingly on the losing side in 
     the 1980s, Brennan remained on good terms with his fellow 
     justices. ``Brennan brought to the work of the court a 
     personal warmth and friendliness which prevented 
     disagreements about the law from marring the good personal 
     relations among the justices,'' Rehnquist once wrote.
       The chief justice also remarked after Brennan had retired 
     that ``the enduring legacy of Justice Brennan--the high value 
     which he placed on claims of individual constitutional rights 
     asserted against the authority of majoritarian self-
     government--is in no danger of being forgotten or disregarded 
     simply because he has left the bench.''
       Georgetown University law professor Mark V. Tushnet, who 
     has read through the private papers of several former 
     justices, said Brennan's winning personal style added 
     tremendously to his effectiveness. ``If you look at the tone 
     with which people responded to his suggestions for changing 
     an opinion, Brennan made it easy. He was friendly and had a 
     tone of accommodation.''
       A minor stroke and related poor health forced Brennan to 
     retire suddenly in 1990, but he remained active in liberal 
     causes. In 1994, a national anti-death penalty project was 
     begun in his name. A year later, he was the inspiration for a 
     free speech award given periodically by the Thomas Jefferson 
     Center for the Protection of Free Expression in 
     Charlottesville, Va.
       Brennan said he hoped to continue effecting change and 
     affecting lives.
       ``Justice Brennen has an abiding belief in the power of 
     thoughts, thoughtful words and good will to reach 
     understanding and solutions that more contentious methods 
     cannot,'' Vernon E. Jordan, Jr., the civil rights leader and 
     Washington lawyer, said in 1995 when a group of Brennan's 
     admirers dedicated the Brennan Center.
       Brennan was born in Newark on April 25, 1906, the second-
     oldest of eight children of Irish immigrant parents. His 
     father worked as a laborer in a brewery and became a union 
     leader and local politician.
       Brennan was an honors student at the University of 
     Pennsylvania's Wharton School of Finance and received a 
     scholarship to Harvard Law School. Upon graduation in 1931, 
     he joined a Newark law firm, Pitney, Hardin & Skinner, 
     practicing there until he entered the Army in 1942. While in 
     the military, he handled labor disputes on the staff of the 
     undersecretary of war.
       He returned to his law firm and began specializing in labor 
     law, representing several large manufacturing enterprises, 
     before being appointed to the New Jersey bench. In 1949 
     Republican Gov. Alfred E. Driscoll named him to the state 
     superior court. Three years later, Driscoll elevated him to 
     the New Jersey Supreme Court, and Brennan became a reliable 
     lieutenant to Chief Justice Arthur Vanderbilt.
       Brennan's nomination to the high court apparently came as a 
     surprise. Then U.S. Attorney General Herbert Brownell Jr. 
     telephoned him late one afternoon in his New Jersey chambers 
     and asked that he meet Eisenhower at the White House the next 
     day.
       Brennan thought nothing of the request and even stopped at 
     Union Station for a hot dog to bide his time, according to 
     Robert M. O'Neil, who would become one of Brennan's first law 
     clerks. ``He didn't expect to get dinner at the White 
     House,'' O'Neil said.
       University of Virginia law professor John C. Jeffries Jr. 
     wrote in his biography of Brennan's colleague, Lewis F. 
     Powell Jr. that Brennan's shot at the high court was owed to 
     chance.
       ``In 1956 the chief justice of New Jersey, Arthur 
     Vanderbilt, was scheduled to give the keynote address at a 
     large Washington conference on the problem of overburdened 
     courts. Two days before the meeting, Vanderbilt fell ill, and 
     Brennan went in his place. His speech impressed U.S. Attorney 
     General Herbert Brownell, who, when a Supreme Court vacancy 
     opened four months later, contemplated the electoral 
     advantages to President Eisenhower of appointing Irish 
     Catholic Democrat from the Northeast and recommended 
     Brennan.''
       Brennan later said no one in the Eisenhower administration 
     asked him a single question about his politics or judicial 
     philosophy. And indeed, Eisenhower's choice for the high 
     court marked the third time Brennan had been appointed or 
     elevated to a court by a Republican official. The ability to 
     bridge differences would distinguish his early career on the 
     high court.
       Brennan succeeded Justice Sherman Minton, who was retiring 
     because of failing health, and initially received a recess 
     appointment on Oct. 16, 1956. He was confirmed by the Senate 
     March 19, 1957 on a voice vote. The only audible dissent came 
     from Sen. Joseph R. McCarthy (R-Wis.), who said he was 
     convinced that Brennan was ``hostile'' to congressional 
     investigations of communism.
       Brennan had given a speech in 1954 in which he said ``there 
     are some practices in the contemporary American scene which 
     are reminiscent of Salem witch hunts.''
       Brennan was 50 at the time of his appointment, the youngest 
     member of a court that included William D. Douglas, Hugo L. 
     Black and Felix Frankfurter. In 1962 Frankfurter who taught 
     Brennan at Harvard and was a strong advocate of limiting 
     judicial power, told Look magazine: ``I taught my students to 
     think for themselves, but sometimes I think that Bill Brennan 
     carries it too far.''
       Brennan formed an immediate relationship with Warren, 
     becoming a close ally and developing the legal justifications 
     for the decisions that would result in a social revolution.
       The Warren Court broadly interpreted the Constitution to 
     provide greater protections for individual rights. It 
     demanded, for example, that states abide by most of the 
     provisions of the Bill of Rights, a document originally 
     interpreted to safeguard individuals only from the hand of 
     the federal government. Essentially a political actor of the 
     era, the court actively addressed society's problems, 
     accelerating the civil rights movement, bringing fairness to 
     reapportionment and reforming police practices.
       When he saw a litigant in need, Brennan's litmus test for 
     offering legal protection was whether anything in the Bill of 
     Rights explicitly prevented him from doing so. He favored the 
     individual and put the burden on the government to show that 
     something in the Constitution disallowed protection. (The 
     opposite, ``judicial restraint'' approach asks whether 
     anything in the Constitution or in the court's precedents 
     explicitly permits it to extend protection to an individual.)
       Brennan and the other Warren-era judges crossed boundaries 
     into areas previously considered off-limits for the federal 
     courts. Before 1962, for example, the question of whether 
     legislative voting districts were drawn fairly was considered 
     a ``political question,'' that is, the business of elected 
     officials, not judges. But Brennan said the fairness question 
     was constitutional, not political. Warren would later call 
     the ruling in Baker v. Carr the ``most important'' of his 
     time on the court. The decision broke rural America's lock on 
     political power and gave urban voters equal representation to 
     fulfill the principle of one person, one vote, as articulated 
     in later voting rights cases.
       Brennan also led the court in increasing protections 
     against sex discrimination, writing in 1972, ``distinctions 
     between the sexes often have the effect of invidiously 
     relegating the entire class of females to inferior legal 
     status without regard to the actual capabilities of its 
     individual members.''


           SPEECH RULINGS OFTEN ENGENDERED POLITICAL OUTRAGE

       He had argued that laws treating men differently from women 
     could be justified only by a compelling governmental 
     interest--the strictest constitutional test for a law. He 
     failed to win a majority of his colleagues to that standard 
     but eventually succeeded in getting them to agree to an 
     ``intermediate'' standard of scrutiny still in place. Until 
     these rulings, states could, and did, treat women differently 
     from men in a variety of ways, imposing different 
     requirements for everything from beer drinking to alimony.

[[Page E1544]]

       In another area of equal rights, Brennan was a strong 
     advocate of affirmative action. In the 1979 United 
     Steelworkers of America v. Weber, he wrote for the court that 
     federal anti-discrimination law does not bar employers from 
     adopting race-based affirmative action programs to boost the 
     number of blacks in the work force and management.
       In 1990, his last term, Brennan was the author of a 
     decision upholding Congress's preferential treatment of 
     blacks and other racial minorities in awarding broadcast 
     licenses.
       The court said the affirmative action program was justified 
     by Congress's interest in broadcast diversity. The case, 
     Metro Broadcasting Inc. v. Federal Communications Commission, 
     was overturned in 1995 as the court increased its scrutiny of 
     federal affirmative action programs.
       When the court invalidated state death penalty laws in 1972 
     in Furman v. Georgia, Brennan wrote, ``Death is an unusually 
     severe and degrading punishment; there is a strong 
     probability that it is inflicted arbitrarily.'' A court 
     should determine ``whether a punishment comports with human 
     dignity. Death, quite simply, does not.''
       Four years later, when a majority reinstated the death 
     penalty with a requirement for safeguards on its imposition. 
     Brennan and his colleague and judicial soul mater, Justice 
     Thurgood Marshall, dissented. Toward the end of their 
     tenures on the court (Marshall retired in 1991 and died in 
     1993), they were alone in opposition to capital punishment 
     as cruel and unusual punishment.
       One of Brennan's best-known opinions is his 1964 New York 
     Times v. Sullivan, which made it harder for public officials 
     to sue the media.
       In it, he referred to ``a profound national commitment to 
     the principle that debate on public issues should be 
     uninhibited, robust, and wide-open, and that it may well 
     include vehement, caustic, and sometimes unpleasantly sharp 
     attacks on government and public officials.''
       Like many of his path-breaking opinions, Brennan's free 
     speech decisions often engendered political outrage. Such was 
     the case for his majority opinions in 1989 and 1990 decisions 
     striking down bans on flag burning. Said Brennan, ``the 
     government may not prohibit expression simply because it 
     disagrees with the message.''
       In the area of religion, Brennan favored a high wall of 
     separation between church and state. Appeals Judge Richard 
     Arnold of Little Rock, Ark., who as a young lawyer clerked 
     for Brennan, once summed up Brennan's view: ``In short, 
     religion is too important to be co-opted by the state for 
     political or governmental ends. . . . As Justice Brennan 
     understands, public and ostentatious piety can be the enemy 
     of true religion.''
       Brennan was the author of a 1987 decision, Edward v. 
     Aguillard, that invalidated a Louisiana requirement that any 
     public school teacher who taught evolution also teach 
     ``creation science.'' In the related area concerning the free 
     exercise of religion, Brennan penned a majority opinion in 
     1963 that only a compelling state interest could justify 
     limitations on religious liberty. Rehnquist, who was often on 
     the opposite side of Brennan, wrote after he retired that 
     ``Brennan's abilities as a judicial craftsman, and his 
     willingness to accept `half a loaf' if that were necessary to 
     obtain a court opinion, played a large part in translating 
     what had at first been dissenting views into established 
     jurisprudence.''
       Brennan first married in 1928 to Marjorie Leonard. They had 
     two sons and a daughter. Marjorie Brennan died of cancer in 
     1982 after a lengthy illness. The following year, Brennan 
     married Mary Fowler, his secretary of more than 20 years. 
     They announced the news of their wedding to the rest of the 
     court with a memorandum that said: ``Mary Fowler and I were 
     married yesterday and we have gone to Bermuda.''
       In addition to his wife, he is survived by his three 
     children, William J. III, Hugh Leonard, and Nancy, and 
     grandchildren.

                          ____________________