Sunday, October 3, 2010

The Liberal Lions Who Overstayed Their Welcome

      Brennan and Marshall. Their names were linked while on the Supreme Court and remain lastingly connected years after their deaths. William J. Brennan Jr., the affable Irishman and architect of the Warren Court’s most important decisions. Thurgood Marshall, the gruff African American crusader against racial segregation and first of his race on the Supreme Court.
      Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
      Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
      The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
      The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
      History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
      The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
      By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
      As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
      Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
      With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
      The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
      In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.

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