Speaking of his ex-colleague Justice William O. Douglas, the defiant
jurist piped, "I'm going to break Douglas' record!" Douglas had served
35 years. Then, William Brennan laughed. Our little exchange took
place at a Gridiron Dinner a decade ago.
Brennan died last week. He served for 34 years after Eisenhower chose
the Irish Democrat to help win the Catholic vote in 1956. Ike would
later describe Brennan and Chief Justice Earl Warren as two of the
biggest mistakes of his presidency.
Brennan was clever, witty, affable and effective at building a court
consensus. But his legacy is much more. "One can agree with the
Brennan opinions, and one may disagree with them," said Justice David
Souter, "but their collective influence is an enormously powerful
defining force in the contemporary life of this republic."
"Voice of Social Revolution," the Washington Post called him. But
Brennan was more than a voice; he was an instrument of social
revolution, a tiny tyrant who exploited his court seat to impose a
radical agenda on an America that never seemed to measure up to Bill
Brennan's standards.
Our first revolution was a genuine people's rebellion against a
distant and arbitrary king. Our political revolutions -- Jacksonian
democracy, FDR's New Deal, the Reagan Revolution -- were the legacies
of presidents with popular mandates. Their policies were validated in
subsequent elections. That is how social revolutions are supposed to
happen in a republic.
The Warren-Brennan revolution, however, was never of the people, by
the people or for the people. It was a revolution from above, dictated
by an unelected elite with life tenure that shredded the Constitution
to fasten on society policies America abhorred.
Whom did Brennan's social revolution empower?
Pornographers. Brennan's 1957 Roth decision stripped a free people of
the right to build a sea wall against a flood tide of filthy
magazines, books, movies, videos and plays that have since made a
running sewer of our popular culture and ruined countless lives in
this most degraded and corrupting of industries.
Brennan next helped empower the abortionists. When he was nominated
in 1956, abortionists were scum, the nadir of a criminal sub-culture.
When he left the bench, a thriving industry had been legalized in
which 4,000 unborn babies were being butchered daily for profit, thanks
to this son of Irish Catholic immigrants.
In the Green decision of 1968, Brennan took the court beyond
desegregating public schools into mandating racial balance. The
forced busing that followed ripped apart America's cities. Brennan
then gave his blessing to racial discrimination against whites in
everything from hiring to handing out radio and TV licenses, despite
the clear intent of the Civil Rights Act of '64.
Any number of serial killers can thank Brennan that they did not
receive justice. For Brennan & Co. prevented capital punishment from
being imposed anywhere in the United States for almost two decades.
And if you wanted to burn an American flag, no one was a stouter
friend.
In New York Times vs. Sullivan, Brennan said the press could libel
public personalities with near-impunity. No wonder the media adored
him. Jefferson's opinion: "While we deny that Congress have a right to
controul the freedom of the press, we have ever asserted the right of
the states, and their exclusive right to do so."
Brennan's social revolution was America's worst disaster since the
Civil War. Are our public schools better off now than they were in
1956? Is the criminal justice system protecting the innocent and
punishing the guilty as it once did? Is the popular culture superior to
what it was in the days when Walt Disney was Disney? Have racial
tensions been eased by busing and affirmative action? Has press
coverage improved with the press' protected power to smear?
Brennan considered the Constitution a living document: "The ultimate
question must be ... what do the words of the Constitution and the
Bill of Rights mean to us in our time?" But if conservative justices
read the 14th Amendment as ensuring a right to life from conception,
the journalists beatifying Brennan would go berserk.
"This legacy can and will stand the test of time," said Brennan on
retirement. Let us hope not. For Brennan's is the legacy of an
anti-democratic revolution the American people endure only because
their elected leaders lack the courage to strip social policy away from
a court whose de-clawing and neutering should be the first order of
business of a democratic republic.
