HE MAY have been a man of much charm, but William Brennan Jr., the former Supreme Court justice who died last week at 91, did more damage to America's machinery of self-government and to the judicial tradition of self-restraint than almost any other judge of our time.
 William Brennan was a Supreme Court justice from 1956 to 1990. |
Over the course of 34 years on the bench, Brennan repeatedly shoved aside text and precedent, trampling the rights of citizens and legislatures in order to chisel his own notions of justice into American law. Thanks in great measure to Brennan's zealous activism, judicial nominations proceed today as bitter ideological battles, hundreds of jails and school systems have been taken over by judges, and successful ballot initiatives are routinely dismembered in court. He taught judges, lawyers, and special-interest pleaders to regard the law — even the Constitution — as forever manipulable, always able to generate a desired result no matter what the law actually said or what the settled tradition required.
Brennan's chief legacy is neither his leftist philosophy nor his discrete opinions. It is his judicial authoritarianism: his assertion that in any political controversy, judges have the last word — not voters, not lawmakers, not elected representatives.
In her absorbing 1994 book A Nation Under Lawyers, Harvard law professor Mary Ann Glendon observes that when Learned Hand, the most eminent and respected federal judge of the first half of the 20th century, "was asked about his judicial philosophy, he liked to say it was summed up in Oliver Cromwell's utterance before the battle of Dunbar: 'I beseech ye in the bowels of Christ, think that ye may be mistaken.' Those words, said Hand, should be inscribed on the portals of every courthouse in the nation."
Four decades later, shortly after his retirement, Brennan was asked whether there were any cases in which he had come to regret or doubt his decision. "Hell, no," he said. "I never thought I was wrong."
In less than a lifetime, the judicial mindset has journeyed from the humility of Learned Hand to the hubris of William Brennan. The change has not been for the better.
It would take a shelf of law reviews to analyze all of Brennan's 1,300-plus opinions. But for a taste of the stop-at-nothing hardball that typified his judging, consider just one: United Steelworkers of America v. Weber.
In 1974, the Kaiser Aluminum plant in Gramercy, La., created nine on-the-job training slots for skilled craft positions, such as instrument repairman and electrician. Brian Weber, a white employee with six years' seniority, applied to the training program. But Kaiser and its union — under pressure from the Federal Contract Compliance Office to increase the number of black craftsmen — had installed a quota system: For every white applicant enrolled in the program, a black applicant would be enrolled, until the percentage of blacks in craft positions reached 39 percent — the ratio of blacks in the local work force. As a result of the quota, Weber was rejected, while two less senior black applicants were admitted.
Weber sued, arguing that Title VII of the Civil Rights Act of 1964 barred Kaiser and the union from discriminating among employees on the basis of race. Indeed, Sec. 703 (d) of the law seemed to have been drafted with Weber's case in mind:
"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship of other training."
As if to drive the point home, another section of Title VII made it illegal to classify workers "in any way which would deprive or tend to deprive an individual of employment opportunities . . . because of such individual's race, color, religion, sex, or national origin."
Weber's case seemed open-and-shut. He won in US District Court, and again in the Court of Appeals. But in 1979, in an opinion written by Justice Brennan, the Supreme Court dismissed Weber's "literal construction" of Title VII. True, the law's plain meaning prohibited hiring by race. But its "historical context" showed that Congress wanted to improve the plight of blacks. "It would be ironic indeed," Brennan wrote, if Title VII were to prevent "race-conscious efforts to abolish traditional patterns of racial segregation."
In other words, a statute that flatly forbade race-based hiring was to be interpreted as permitting race-based hiring. Brennan was in favor of quotas, and so, law or no law, quotas were going to be approved. It was that simple.
In a blistering dissent, Justice William Rehnquist quoted at length from the congressional debates over the Civil Rights Act. Over and over, Title VII's proponents had insisted that the law could never be used to authorize hiring or firing on account of race. The point was made dozens of times, but Senator Hubert Humphrey, chief architect of the Civil Rights Act, put it most memorably. If anyone "can find in Title VII," he declared, "any language which provides that an employer will have to hire on the basis of ... color ... I will start eating the pages one after another, because it is not in there."
But Brennan didn't care whether it was in there or not. He was intent on grafting racial quotas and preferences onto affirmative action, and he got his way. Steelworkers v. Weber threw open the gates to explicit reverse discrimination in the workplace. The consequences — 18 years of turmoil, hostility, and racial tension — are with us still.
(Jeff Jacoby is a columnist for The Boston Globe).
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