Justice Brennan: Legacy of a Champion

JUSTICE BRENNAN: LEGACY OF A CHAMPION JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern and Stephen Wermiel. Boston and New York: Houghton Mifflin Harcourt. 2010. Pp. xiv, 547. $35.INTRODUCTIONIn June 2012, the New York Times prominently reported that threequarters of Americans believe that U.S. Supreme Court decisions sometimes are influenced by the Justices' personal or political views, while only 13% view their rulings as based solely on legal analysis without regard to such views.1 At one level, this should be unsurprising, a "dog bites man" story. Who sits on the Supreme Court-each Justice's personal as well as legal views-of course affects the Court's rulings. The Times, however, paired this poll result with the finding that the Court's approval rating had fallen to 44%, from 66% in the 1980s,2 thereby suggesting that the Court's reputation may have fallen because the public perceived those influences as improper. It singled out the Court's five-to-four decisions in Bush v. Gore3 and Citizens United,4 as well as the debate over the constitutionality of the Patient Protection and Affordable Care Act,5 which the Court had not yet decided at the time of the poll.6The Court's reputation may well have diminished because of the perception of improper influences, for example in the Court's willingness in Bush v. Gore in effect to resolve a presidential election along ideological lines and contrary to widespread expectations that the Court would decline to play that role. Another likely factor behind the fall is the public's substantive disagreement with the Court's rulings and the values they reflect, which seems especially likely in the case of the extraordinarily unpopular Citizens United decision.7The Times' presentation of the poll results, however, risks perpetuating the myth that the content of the Court's rulings should be-and can be- wholly unrelated to the identities of the Justices sitting on the Court, and that the ideal should be judicial interpretations reached entirely without regard to the Justices' personal views and values.8 The poll's phrasing is unfortunate: although "personal or political views"9 evokes negative associations with such improper factors as personal or partisan gain or prejudice, the scope of the term is not so limited, especially in the context of the poll's two options. It also includes views and values that properly and inevitably inform legal analyses, particularly on the close constitutional questions most familiar to the American public: the meaning of broad, undefined guarantees such as "liberty," "equal protection," "cruel and unusual punishment," and "freedom of speech."10During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges.11 Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often unseen and rarely understood, impact on nearly every aspect of our lives."12 Both were correct: because under our Constitution, "We, the People" govern, public appreciation of the actual influences on judicial decisionmaking should be seen as desirable, even if the Court's popularity suffers when the public disagrees with it.13The Reagan Administration and Professor Tribe diverged, predictably, on the desirable content of Justices' values and philosophies, and both pointed to the example of Justice William J. Brennan, Jr. While Reagan officials singled out Justice Brennan as possessing precisely the wrong "values and philosophies" and targeted many of his "activist" decisions for overruling, 14 Professor Tribe held him up as an exemplar of a "catalytic" Justice whose work on the Court greatly improved Americans' lives. …