David Strauss Reviews Biography of Justice Brennan

The Last Liberal Justice?
David Strauss
June 21, 2011

A few years before he retired last summer, Supreme Court Justice John Paul Stevens remarked that since 1971, every one of the justices appointed to the Court—he included himself—was more conservative than the justice who was replaced. He allowed there was room for debate about Justice Ruth Bader Ginsburg, and Stevens made his comment before President Obama’s recent appointments. But the big picture is unmistakable. In the 40 years between Lyndon Johnson and Barack Obama, the Supreme Court moved uniformly and inexorably to the right.

There is also no mistaking the consequences. The great liberal decisions of the Warren Court seem far away, not just because so many years have passed. According to some liberals, there have been no truly progressive justices on the Court for many years—only moderates and conservatives. Conservatives have won important battles, most recently in striking down gun-control laws and limits on the corporate funding of political campaigns, and the Court may play an even more prominent role in the future. The Voting Rights Act, probably the most important law of the civil rights era, has a bull’s-eye on its back, and there is a concerted attack on health-care reform.

Meanwhile, it is not even clear what a liberal agenda for the Supreme Court would look like. The policy initiatives that are most important to progressives today—reforming health care, protecting the environment, improving education, addressing economic inequality—require legislative, not judicial, action. Some causes that were paramount to the Warren Court, like racial justice and the rights of criminal defendants, either have taken on a new and more complex form or have been left behind by many liberals. Other issues—rationalizing immigration policy, protecting individual rights while dealing with the threat of terrorism—have a court-centered component but are more complex, morally and institutionally, than, say, the attack on racial segregation during the civil rights era.

Justice Brennan—with the simple subtitle “Liberal Champion”—does not tell liberals how to deal with a conservative Court, or what the progressive judicial agenda might be today. But it does give us, with depth and clarity, a picture of an era when progressive ideas were ascendant on the Court—and of the conservative reaction precipitated by that era. Justice Brennan was, as the book makes clear, central to the Warren Court from the time he joined it in 1956 until Chief Justice Earl Warren’s retirement in 1969. During that period, the Warren Court expanded the rights of marginalized members of society: African Americans in the segregated South; political dissidents; criminal defendants; city dwellers who were all but disenfranchised by malapportioned legislatures; even welfare recipients. Brennan then tried to carry forward what he saw as the work of the Warren Court during the increasingly conservative years that followed. He had occasional victories but often faced frustration and defeat, leading the authors to delicately raise the question of whether Brennan and the Warren Court had overreached.

David A. Strauss