The Supreme Court: The Personalities and Rivalries that Defined America, by Jeffrey Rosen, Times Books, 288 pp, $25, ISBN: 978-0805081824
The hands turn red, then white, and the cords of the neck stand out like steel bands. The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates, and vomits blood and drool. The body turns bright red as its temperature rises, and the prisoner’s flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches on fire, particularly if he perspires excessively. Witnesses hear a loud and sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber. This smell of frying human flesh in the immediate neighbourhood of the chair is sometimes bad enough to nauseate even the Press representatives who are present. In the meantime, the prisoner almost literally boils: the temperature in the brain itself approaches the boiling point of water, and when the post-electrocution autopsy is performed the liver is so hot that doctors have said that it cannot be touched by the human hand. The body frequently is badly burned and disfigured.
Justice William Brennan, dissenting, in Glass v Louisiana, 471 US 1080 (1985)
Of the 1,360 judicial opinions William J Brennan composed between 1956 and 1990, over the course of his service as an associate justice on the Supreme Court of the United States, perhaps his dissent in the Glass case above might stand as the most typical single example of his jurisprudence. The above excerpt obviously illustrates the depth of his revulsion at the reality of capital punishment in America. When one remembers that Brennan mounted a personal campaign from within his own chambers to sabotage the death penalty, which he continued for nearly twenty years, one gets a sense of his extraordinary self-confidence as a jurist. Despite embittering the personal relations between the justices, some of whom deeply resented his attempt to obstruct the work of State courts, and heedless of accusations that he was breaking his judicial oath to uphold the laws of the country, after 1972 Brennan voted to overturn every death sentence that arrived at the Supreme Court for review. The anger that suffused his Glass dissent also reflected his belief that the US constitution existed first and foremost to protect the fundamental dignity of each citizen, a dignity he sought to defend with a determination that might be termed quasi-religious if Americans did not also know him as the most stringent champion of a wholly secular public sphere.
That Jeffrey Rosen’s lucid and readable book almost wholly neglects Brennan’s seminal influence over the development of modern American constitutional law might be forgivable in the eyes of a domestic audience more concerned with the possible direction of the new Roberts court. Irish readers, however, struggling to come to terms with their own aggressive Supreme Court and mindful of the enormous influence Brennan’s opinions had over jurists like Cearbhall Ó Dálaigh and Brian Walsh, might be less forgiving of the omission.
Rosen’s central thesis is that character rather than intellect determines the success or failure of American justices. The heart of his book is in chapters I through IV, as he compares the achievements of four pairs of judicial characters. Chief Justice John Marshall, the bowls-playing, Madeira-loving architect of the modern doctrine of judicial review easily surpassed his fellow Virginian Thomas Jefferson, portrayed here as a neurasthenic, condescending loner more at home amidst the bookshelves of Monticello than wheeling and dealing in a collegiate setting. John Marshall Harlan and Oliver Wendell Holmes are used as a prism through which to assess the fractured intellectual legacy of the Civil War. Harlan, the former Kentuckian slave-holder and grandfather of the second Justice Harlan, who would serve with Brennan on the Warren court, emerges here as a prophet of racial tolerance as early as the 1890s. He was the sole dissenter on the Supreme Court that notoriously upheld the separate-but-equal doctrine in the Plessy case in 1897. His later colleague Justice Holmes is the villain of the book, a vain scholar-judge who never met a law he would not sustain as part of a radical majoritarian understanding of democracy. The chapter on Holmes, shot twice during the Civil War and a survivor of the squalor that engulfed the Union forces at Antietam, should be read alongside Louis Menand’s handsome account of his intellectual development in The Metaphysical Club and Colm Tóibín’s ethereal portrait of a profoundly damaged man in The Master. Rosen shows how Holmes emerged from the war between the states as something close to a nihilist, haunted for the rest of his life by the terrifying conviction that the carnage at Bull’s Bluff, Fredericksburg and Shiloh had proven nothing but the folly of self-righteousness.
William O Douglas, Franklin Delano Roosevelt’s second choice for the court in 1939, also squandered his precocious talents on the bench in Rosen’s analysis, leaving behind a patchy jurisprudence that pales when compared with the meticulous scholarship of his fellow New Dealer Hugo Lafayette Black, the one-time Klansman from Alabama who would come to dominate the liberal wing of the Warren court until Brennan’s arrival in 1956. While posterity now grimaces at the thought of Holmes’s votes to sustain eugenic laws and his contempt for the plight of African-Americans, after an outstanding series of early opinions concerning financial regulation Douglas went the same way and blew his potential on cocktails and fast women. By the time his colleagues forced him to retire in 1975 he had amassed a record of sorts: he had served thirty-six years on the bench, had found his fourth wife in a twenty-year-old waitress, had issued an injunction against the bombing of Cambodia which all eight of his colleagues overturned eight hours later, and more importantly, had survived Gerald Ford’s best efforts to impeach him. Rosen gives readers adequate grounds for assuming that his son was not smiling when he told a biographer “Dad was scary.” By contrast, his somewhat invertebrate final chapter comparing the allegedly happy-go-lucky conservatism of William H Rehnquist with the more apocalyptic anti-modernism of Antonin Scalia appears as lame as the wheelchair-bound Douglas’s final opinions in 1975.
Rosen’s failure to grapple seriously with Brennan, who served from 1956 until illness forced him to retire in 1990, strikes one as especially odd in the context of his basic thesis about judicial temperament. Of all the post-1937 justices, it would be difficult to find one who more handsomely vindicated Rosen’s instinctive aversion to the self-professed scholars on the court. As Felix Frankfurter sniffed when Brennan’s elevation to the court was announced, he had never taken one of his classes on constitutional law at Harvard, and had not made the law review cut-off in his final exams (though he finished within the top ten of his class on a scholarship in 1931). Brennan himself told a reporter at his confirmation hearings that he felt like a mule at the Kentucky Derby as he contemplated joining a court then graced by John Harlan, Earl Warren and Douglas. And yet, within a few short years, Brennan emerged as arguably the intellectual architect of the Warren court’s expansive jurisprudence, seeing off Frankfurter’s attempt to keep the court out of legislative apportionment cases as well as outmanoeuvring Black, whose liberalism stopped at the bedroom door.
Brennan was insistent that the federal courts had to intervene in apportionment cases in order to block the attempts of racist legislatures to gerrymander the electoral system. He finally triumphed over Frankfurter in 1963 when the court announced in Baker v Carr that US citizens anywhere in the Union had the right to ask a federal court to intervene in cases of manifest racial gerrymandering. Chief Justice Earl Warren considered Baker to be the most important decision ever handed down by the court during his career. At a stroke, it shifted electoral power from the countryside to the new urban centres all around America and gave African-Americans proportionate legislative representation for the first time. Brennan’s brave and lonely opinions on freedom of expression during the McCarthy era also gave some hint of that extraordinarily clear vision of a “ministry of law” that lay just beneath his smiling exterior. Frankfurter was not the only self-professed intellectual to miss the forcefulness of Brennan’s mind, which he kept hidden behind his trademark “Hiya pal!” catch phrase and those genial bear hugs he reserved for his closest friends.
David Bazelon, a pioneer in the field of American mental health and once a powerful chief judge on the DC Court of Appeals, grimaced in tandem with Frankfurter when President Eisenhower plucked Brennan from the bowels of New Jersey’s notoriously ramshackle court system in 1956. Blaming the whole process on Cardinal Spellman’s insistence that Eisenhower put a Catholic on the court or suffer the consequences in an election year, Bazelon paid the new junior justice a visit in his first year. Tittering to a correspondent afterwards, he recalled a friendly chat with a judge given, in Bazelon’s account, to speaking in “deeses and doses”. But as Brennan’s opinions in civil rights, freedom of expression, capital sentencing and privacy issues came to dominate the agenda of the court from the mid-sixties, Judge Bazelon had the good grace to make him a close friend. When Brennan retired in 1990, Bazelon wrote about the curious chiaroscuro effect Brennan produced even among his closest associates: the gentle nature that masked the sternest and most implacable constitutional analysis of any judge of that generation. “What strange fires moulded this man?” mused Bazelon after his death. As it turned out, the Irish may have seen him coming all along.
William Brennan’s father was one of the many thousands of rural sclábhaithe who fled Ireland at the end of the nineteenth century, washing up in Trenton, New Jersey after a hopeless adolescence in Roscommon. Brennan senior initially heaved coal by hand in the Ballantine brewery in Newark. “Big Bill”, as he came to be known, soon got involved in union organisation and worked his way up to election as Director of Public Safety for the city in 1917. Nearly sixty years later, the son could still recall seeing his father’s battered frame being carried towards their house by his comrades in the aftermath of a particularly nasty clash with local police after a strike. Brennan’s political career flourished in Newark, where he personally saw to the appointment of the first four black policemen in the history of that city. Come hell or high water, he insisted that his boy, Billy, would go to college – Pennsylvania and Harvard law schools to be precise. So far so Irish, a cynic might retort, one more version of the McCourt shtick, except this time the story is punctuated by the harsh vowels of the American urban northeast rather than the growl of the Shannon estuary. Yet there was nothing in the least clichéd or ordinary about Brennan’s character, except perhaps the fondness he developed for Yeats’s Cathleen Ní Houlihan.
His judicial opinions on equality of opportunity, especially in the toxic area of race relations, surpassed anything that had ever emerged from either the Tammany machine or the revolutionary round tables of Clan na Gael. In this respect especially, Brennan proved too rich for the more refined Kennedy palate. Arguably the most significant Irish-American of the last century, he was raised half a world away from the opulence and casual racism that pockmarked the dinner table banter in the famous Hyannisport compound. He would similarly defy the tribal gods by emerging within seven years of his elevation to supply what was perhaps the most impressive rationale for forbidding even non-denominational religious involvement in the public school system. His classic Schempp concurring opinion from 1963 began with Locke’s Letters on Toleration, the foundational text in the seventeenth century anti-dogmatic tradition, and ended with Judge Jeremiah S Black’s injunction from 1856, directed at the citizens of Pennsylvania, to maintain a “State without religion and a Church without politics”. Though Rosen has rather elided his contribution in this matter as well, Brennan would also be the key player behind the scenes in the negotiations that preceded the abortion case Roe v Wade. Cardinal Spellman must have been mortified indeed.
Seán Lemass, with that characteristic Huguenot asperity for which he is so celebrated, supposedly turned to Brian Walsh (1918-1998) on the day of his swearing in as a Supreme Court judge in 1963 and said that he hoped Irish judges would take a leaf out of the Warren court’s book. Walsh needed little prompting on this as he had come to know and admire aspects of Brennan’s jurisprudence, even developing a friendship with him during the previous decade. This moody eminence grise behind the Irish judicial revolution of the 1960s would become the most implacable defender of the Supreme Court’s appellate powers since 1937.
Possessed of a broad yet in many ways extraordinarily inflexible intellect, Walsh plundered the emerging jurisprudence of the Warren court and applied it selectively to the Irish cases which came before him. To the extent that Walsh is characterised as a liberal jurist, which he certainly was not, Justice Brennan’s influence over him has been somewhat crudely overstated. Rosen is careful in his book to remind readers on more than one occasion that the US Supreme Court is the most prestigious and influential appellate court in the world, with admirers as far away as India and proto-capitalist China. In many ways its most enthusiastic admirers have been Walsh and the chief justice with whom he made rather incongruous common cause, Cearbhall Ó Dálaigh (1911-78).
Up until the Lemass premiership, the Irish Supreme Court made relatively limited use of the enormous power de Valera had bestowed on it under article 15 of the 1937 Constitution. For thirty years, the Irish judicial system mirrored the wider society rather well, in that both were sleepy and provincial, with horizons that extended, for the most part, no further than Holyhead. And then the judicial Rip Van Winkle was roused. By the time Walsh retired from active service in the early 1990s he had constructed something akin to Brennan’s “ministry of law” in Ireland. In whole swathes of law, ranging from extradition to civil, political and social rights and Northern Ireland, the Supreme Court exerted enormous influence over Irish politics and society. Walsh is generally acknowledged as the architect of several landmark decisions of the court, such as the Byrne judgment, which allowed citizens to sue the state, the Ryan judgment, which explicitly claimed for the judges the power to promulgate new, non-reviewable constitutional rights, and the seminal McGee judgment, which made some modest headway against the state’s neo-Victorian statutes which oppressed sexual freedoms.
In 1998, Walsh’s eulogists were careful to emphasise his admiration for the US Supreme Court and his personal rapport with Justice Brennan, who died a year before him. His obituary in The Irish Times explicitly invited comparisons with Brennan and quoted Walsh’s own argument that “Justice Brennan took the view that the quest for the freedom and dignity and rights of man, although always old, would never end”. Walsh himself wrote an elegant judicial billet doux for one of the many academic Festschriften that followed Brennan’s retirement from the bench, Reason and Passion: Justice Brennan’s Enduring Influence (New York, 1997). Here he celebrated Brennan’s expansive reading of the US Constitution as a document that protected fundamental individual freedoms, as well as his non-positivistic understanding of rights, explained in Walsh’s pithy insistence that Brennan held that justice was superior to law and that fairness came before desiccated legal precedent and dicta. He argued that few appellate courts in the western world had watched the American court system with more admiration than modern Ireland’s.
And yet Walsh’s admiration for the most emphatic defender of abortion rights on the Warren, Burger and Rehnquist courts was distinctly limited on certain issues. For all his populism where political and social rights were concerned, sexual issues tended to awaken the austere Catholic chimes that were a central component of Walsh’s character. After all, he had lectured in Roman and canon law at the Pontifical University of Maynooth until 1958. He carefully refused to rely on the Warren Court’s privacy precedents in his McGee decision, precedents which Brennan essentially wrote along with Justices Douglas and Warren. In fact, thirty years after the fact, what is most striking about Walsh’s vote to overturn the ban on imported contraceptives in 1973 was not his concern for reproductive rights within the family unit but an Aristotelian concept of natural law that reeked of paternalism in the case of Mrs McGee. Confronted with a statute that effectively put that woman’s life in danger (her doctor warned that another pregnancy would kill her), Walsh actually conceded that there were certain circumstances where the state could effectively deny women contraception should the common good demand it. He was emphatic in that judgment that he would never accept that a women’s right to terminate an unwanted or dangerous pregnancy could ever be squared with natural justice. Brennan’s argument that same year in his Roe notes that “privacy is a species of ‘liberty’… that encompasses … the freedom to do with one’s body as one likes and freedom to care for one’s health and person” was half a world away from the arcane paternalistic jargon of Walsh’s approach.
Walsh’s dissent from a 1986 judgment which extended a measure of equal protection to homosexual citizens under the European Convention on Human Rights was actually admired among conservative American commentators, who persuaded the Supreme Court to allow the States to criminalise consensual homosexual relations in the Bowers case in 1987. Brennan vehemently dissented from that decision, and had in fact previously tried to push the court towards recognition of gay rights in his angry dissent in the Mad River School decision in 1985, writing that “because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena”. For all his sonorous arguments about the inalienable rights of the individual under the law, Walsh ended his career mentoring the so-called pro-life lobby in the Irish abortion debate, finding that he could live quite happily with their argument that the mental and physical welfare of a pregnant woman was subordinate to the integrity of a zygote in utero.
In 1995 Walsh was reduced to predicting that the provision of even the most basic medical information concerning abortion services in other jurisdictions would actually encourage otherwise wavering Irish women to abort their pregnancies. He argued then that “by virtually placing abortion on the same level and on the same moral plane as adoption or keeping the baby, the effect of the information legislation will be to give rise to a number of abortions”. This came on top of his heartless argument that the child at the centre of the X-case had in fact been faking the whole thing, because in his mind, contrary to the actual record of the case, the fact that she was raped “was never established”. Though her searing dissent was aimed at an American audience, Walsh’s admirers in Ireland would do well to ponder Justice Ruth Bader Ginsburg’s recent insistence that “this way of protecting women recalls ancient notions about women’s place in society and under the Constitution – ideas that have long since been discredited”.
Rosen’s careful handling of arguably his most idiosyncratic judge, Hugo Black, provides some clue as to how Walsh could credibly claim affinity with the so-called “liberal lion”. Black was the recognised leader of the liberal wing until Brennan’s arrival, championing a broad understanding of Congress’s power to regulate the national economy under the Commerce Clause, as well as insisting that States obey the letter and the spirit of the Civil War amendments which attempted to legally integrate newly emancipated slaves into the mainstream of American society. Yet his populist liberalism evaporated in the area of sexual mores, not unlike Walsh’s. As Brennan wearily told a law clerk in the 1980s: “Hugo changed before our eyes.” A champion of the doctrine of “incorporation”, the idea that most of the rights protected by the federal constitution were conceptually incorporated in the Fourteenth Amendment, and thus applicable at State level, Black was a severe critic of the idea that the Due Process clause of that same amendment contained any substantive guarantees like a right to privacy. And so he refused to vote to invalidate State laws that criminalised the use of contraception and was hostile to the court’s development of an abortion jurisprudence that grounded a woman’s right to terminate her pregnancy before foetal viability in a medically approved theory of personal autonomy. (The Due Process clause of the Fourteenth Amendment stipulates that “no State shall deprive any person of life, liberty, or property, without due process of law” and has been interpreted since the early 1960s as insisting that State actors treat citizens with procedural fairness. It also implies protection for certain fundamental rights that are inherent in the very concept of due process itself. Along with Justices Douglas and Harlan especially, Brennan argued that privacy was one of these substantive rights that could not conceptually be separated from the procedural element in the amendment.)
As a Catholic partisan of natural law theory rooted in Aristotelian moral categories, Walsh explicitly rejected Brennan’s privacy analysis. As his close friend Charles Haughey might have put it, there lay permissive monsters. In fact, whatever about the parallels with Black’s intermittent Puritanism, the nearest fit for Walsh’s confection of natural law philosophy and sexual obscurantism is actually Clarence Thomas, the sole black justice in the current court, who insists that the US Constitution be construed according to the intent of its eighteenth century draftsmen, men who held his ancestors to be worth precisely three-fifths the value of a white male. We are unlikely though to see too many concurring votes for this argument during next year’s anniversary celebrations of Walsh’s career.
Reading Rosen’s measured assessment of how the US Supreme Court has attained its position of extraordinary power in American society cannot but trigger a certain frisson in Irish readers. It has been quite a journey since the days when the first justices met to hear cases in the basement of the US Congress and when several major politicians declined appointment to the court because it was considered such a backwater. After all, for thirty-four years, the creative intelligence at the heart of the court’s major forays into social policy was Irish. Or as the conservative National Review magazine put it in its acidulated profile of Brennan in 1984: “No individual in this country, on or off the court has had a more profound and sustained impact upon public policy in the United States for the past 27 years.” Pausing to pay tribute to “his engaging personality”, they then read him the riot act. “A Catholic,” they rasped, “he has played an instrumental role in the unfettered availability of abortion across the country … appointed by a Republican because of his ostensibly conservative views and because of his experience as a state court judge, it is he who mandated the reapportionment of every state legislative system in the country … the son of hard-working Irish immigrant parents, he nevertheless has made significant strides in elevating the welfare state to constitutional status.” While evangelical Christianity is not known for the success of its ventures into the realm of moral paradox, this resumé of Brennan’s achievement is not without its attractions.
The en passant reference to Brennan’s immigrant background invites a degree of rumination about the Irish-American experience generally in the twentieth century. Walsh was keen to wrap himself in the Warren court’s banner, and in their own good-natured way American constitutional scholars like Rosen are keen to accept the implied bouquet. Emulation is, after all, the highest form of flattery. Brennan’s career should focus minds on the fact that the most important traffic across the Atlantic during the last century has not been so much in human cargo as in ideas. And with regard to this intellectual aspect of the Irish-American relationship we are still very much in our infancy. Irish emulation of various aspects of US practice has been sincere, but very often tragically incomplete. The Fenians, especially in the aftermath of the Land War (1879-81), toyed endlessly with the American separation of powers model in their utopian constitutions, should that independent Irish republic-of-the-mind ever materialise. Yet James Stephens, for example, casually gave the Catholic Church full control over the education system in his blueprint for a future republic, thereby missing the entire point, it would seem, of the American First Amendment.
The only Irish taoiseach who was also eligible for election as president of the United States proved a more serious student of the American constitutional achievement. Éamon de Valera’s famous theory of “external association” owed much to his analysis of American federalism during his travels in the US in 1919 and 1920 and his creative inspection of the Platt Amendment, which still governs Cuban-American relations to this day. However, as Tom Garvin noted in his powerful book Preventing the Future: Why was Ireland so Poor for so Long? (arguably the Irish book of the decade), de Valera actually offered an unnamed religious order de facto control over the budding voluntary education sector in the 1940s. His successor as taoiseach learned some very different lessons from the Greatest Generation. Deep in retirement in the early 1970s, Lemass, an admirer of Walt Rostow’s academic theories concerning economic “lift-off”, still marvelled at the professionalism and generosity of the American industrial consultants who came to Ireland through the OECD in the late 1940s, neutrality notwithstanding. Walsh’s qualified admiration for Brennan’s “ministry of law” was part of this complex intellectual traffic, one that still awaits an historian brave enough to write the larger Irish-American story rather than remaining stuck in the morasses of Camelot and Noraid.
Justice Brennan’s most intricate jurisprudence was in the Establishment Clause area, where he elaborated the philosophical rationale for a secular public sphere. His eighty-page concurring opinion in the Schempp case in 1963, laying out the historical and legal reasons for preventing public school teachers reading non-denominational excerpts from the Bible at the start of class, was known to have caused him great personal anxiety. “In the face of my whole life long experience as a Roman Catholic,” he told a former clerk, “to say that prayer was not an appropriate thing in public schools, that gave me quite a hard time … I struggled.” And yet, for all his personal discomfort, perhaps even because of it, the result was de profundis, passionate, moral, urgent. His stern protection of the secular public sphere might suggest that he was one more personally pious believer who essentially learned to save it for Sundays. However, considered as a conceptual whole, Brennan’s opinions suggest that there was no such separation of faith and deed and that he was arguably post-war America’s most influential Catholic intellectual. He was a very different kind of Catholic, however, from Rosen’s quintet of Justices Scalia, Kennedy, Thomas, Roberts and Alito.
In ways that scholars are still grappling with, Brennan’s faith did suffuse his opinions as a justice. Indeed, before his elevation he gave a speech arguing that “whatever their religious belief, all Americans acknowledge with us the fitness in recognising in important human affairs the superintending care and control of the great governor of the universe and of acknowledging with thanksgiving His boundless favours”. Catholic moral philosophy over the last two centuries has, in certain hands, proven eminently compatible with the dictates of political liberalism. Brennan makes sense in the context of Catholic liberals like Chateaubriand, whose fierce criticism of tyrannical government was rooted in his Catholic certainty that the individual possessed inalienable rights under the natural law that were revocable only by God. The nearest parallel for Brennan in a post-war Catholic context is not Walsh, who was, of course, revolted by Brennan’s position on sexual equality, but Pierre Elliott Trudeau (1919-2000) in Canada, whose Catholic education deeply influenced the liberal social reforms that defined his premiership between 1968 and 1984.
Setting aside for the moment his unintentionally hilarious barbs at the Irish, Michael Burleigh’s book Sacred Causes: Religion and Politics from the European Dictators to Al Qaeda, an important meditation from last year on modern Europe’s pervasive Christian heritage, dealt deftly with these delicate crossovers. Reading his subtle analysis of Karol Wojtyla’s understanding of civil and political rights brings Brennan to mind, especially on the death penalty. Burleigh wrote elegantly that “historically of course, as has been pointed out by thinkers as diverse as Marcel Gauchet and George Weigel, Christianity had much to do with the notion of the autonomous, sacrosanct individual, with the preservation of a sphere beyond the state that anticipated civil society, with the notion of elected leadership and with holding rulers accountable to higher powers”. Brennan is in many ways a tantalising example of what might have happened to modern Irish Catholicism had there not been a famine in the 1840s, the key event in the construction of that austere, High Tridentine form of Catholic ethics in Ireland which became obsessed with sexuality. But unfortunately for those generations before the early 1990s, what Cardinal Cullen built amid the ruins of the Irish countryside in the early 1850s he built to last. That so many scholars see Walsh as a liberal is rather grim testament to Cullen’s enduring craftsmanship.
Rosen’s book succeeds very well in demonstrating the deceptively simple proposition that individual judges matter; and certain judges, like Brennan, Black, Warren and Marshall, mattered a very great deal. For the most part in his story federal judges are the heroes, whether in insisting, in Brennan’s order in Cooper v Aaron in 1956, on the strict desegregation of the public school system, or in mandating the reapportionment of legislative districts throughout the Union, as in his other landmark opinion, Baker v Carr. But his final chapters assessing the “federalism revolution” of the Rehnquist court should be of interest to judicial Cassandras everywhere. Here Rosen shows how a bare but determined majority of five justices significantly cut away at the powers of the federal government relative to the States throughout the 1990s by reactivating the antique concept of State sovereign immunity under the Eleventh Amendment, by gutting Brennan’s elaborate scheme of habeas corpus jurisprudence in criminal and capital sentencing and by using the Commerce Clause to prevent Congress from even regulating gun crime in school zones. (This clause gave the federal government powers to regulate inter-State commerce and has been the basis of Congress national management of the US economy since the 1930s. Conservatives of various hues have opposed Congress reliance on this constitutional provision, arguing that it undermines the powers of individual States to order their own affairs and as such is a threat to the federal character of the Union.)
Rosen shows that government by Platonic tribunal can have its distinct advantages in combating the evil legacies of chattel slavery, as federal courts are immune from intimidation by local majorities. But he also cautions us to remember that it can all end in tears if the Pharisees capture a majority in the chamber. For every Bill Brennan there will be a Walsh or a Scalia to mark him. Though our Four Courts may certainly resent the comparison, Rosen’s analysis of Justice Douglas’s boozy, self-indulgent jurisprudence in the early 1970s is certainly jarring to Irish ears – especially if one remembers that since the 1960s, our Supreme Court’s more erratic démarches into national politics have resulted, inter alia, in profoundly compromising two constitutional treaties designed to confront sectarian terrorism in Northern Ireland, in 1973 and again in 1985, and in the creation of a constitutional standard in abortion law that ignores the question of a pregnant woman’s health as a matter of principle. The court also found time to threaten two cabinet ministers with jail for failing to legislate in a manner it thought expedient in 2001. Rosen’s book should give Irish readers good cause to inquire far more closely into the character and ideology of the judges we appoint. If ever there was a case for ending the secretive selection process which obtains in Ireland, Rosen’s portrait of an addled, drooling Justice Douglas surely amplifies it.
For all these rather cosmic considerations however, and at the risk of inviting charges of Hibernian solipsism, it is hard not to react to William Brennan’s career in strictly Irish terms. His personality invited a certain intimacy, even from strangers. Professor Burt Neuborne at NYU told one of the justice’s biographers that
when Brennan entered the room to deliver the Second Madison Lecture in 1986, a significant proportion of the audience had tears in their eyes. This is not an emotional crowd … these are lawyers, law professors, judges, these are not people who are given to shows of emotion … yet when he walked in, they gave a standing ovation of at least 20 minutes and people cried, because they saw in Brennan what a lot of them became lawyers for.
Perhaps that gaggle of leathery old ambulance-chasers in Manhattan were thinking that night about the myriad, exquisite asymmetries that confront almost every Brennan scholar. Here was the son of an Irish coal-heaver, (who had more than a passing acquaintance with the wrong side of a strike-breaker’s truncheon,) the one who would go on to write the Goldberg opinion in 1976, guaranteeing to every recipient of welfare a personal hearing with the bureaucracy before they were cut off. This son of a “director of public safety” in Newark who did not much care for dirty book stores would one day invoke the demented ramblings of the despot in Plato’s Republic against judicial colleagues who thought like his father. This State judge who was widely derided as an Eisenhower hand-me-down during his first months on the Supreme Court would cast a crucial vote in 1974 that ultimately ended the burlesque show that history calls the Nixon presidency.
Perhaps the more historically aware in that audience savoured the fact that the two most important decisions of the civil rights struggle, New York Times v Sullivan (giving full First Amendment protection to investigative reporters in the Deep South) and Baker v Carr (giving gerrymandered black citizens their day in court) were written by a judge who claimed the same ancestry as such notorious racist demagogues as Judge Daniel Cohalan and John Devoy. Brennan’s twenty-five-year campaign to convince his colleagues that the death penalty was profoundly racist in its application must be counted as a recompense of sorts for the fact that some of the noisiest partisans of the Davis Confederacy were the immigrant Irish from his very own urban north-east homeland. Having shown in his McCleskey dissent in 1987that a black man who killed a white man was four times as likely to receive the death penalty in a Georgia trial, he ended with a chilling j’accuse that still resonates. “It is tempting,” he wrote, “to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. The destinies of the two races in this country are indissolubly linked together, and the way in which we choose those who will die reveals the depth of moral commitment among the living.”
One must note a cruel irony in parenthesis here however regarding Brennan’s solicitousness for the dignity and rights of America’s former slaves. After he retired in 1990, the Supreme Court would come to apply his expansive reading of free speech rights under the First Amendment in a manner that actually encouraged the cross-burning activities of the Ku Klux Klan and its surrogates. The settled law of the United States now regards the Klan’s squalid symbol as a form of protected speech for the purposes of the First Amendment, except where a jury can be convinced that it is being used to intentionally intimidate. (The court’s 1992 decision in the R.A.V. case in this regard is well worth pondering.) Similarly, a noisy (and happily unsuccessful) minority of justices tried to use Brennan’s free speech analysis in the Hill v Colorado case in 2000 to give constitutional protection to those soi-disant protesters who specialise in intimidating patients entering and leaving abortion clinics. But by then Brennan had earned his rest and the burden had been passed to sturdier shoulders.
Brennan’s seminal contribution to the legal developments adumbrated so accessibly by Rosen make him among the most influential justices of the twentieth century. In fact when he died in 1997, the Supreme Court bar ranked him alongside Marshall and Holmes. Immersion in the Brennan oeuvre is perhaps one of the most powerful ways to make sense of modern America. His papers convey the depth and breadth of the racism that still infects the republic. His criminal procedure jurisprudence is in many ways a catalogue of that extraordinary array of tricks and wheezes which racist southern legislatures concocted in their increasingly frantic attempt to nullify the Supreme Court’s principled opinions in Brown, Green and Cooper. They are modern-day evocations of that terrifying premonition of racial chaos that lay just beneath the surface of the sublime prose in Lincoln’s Second Inaugural, which promised further suffering “until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword”. Brennan’s death penalty dissents, those extraordinary jeremiads in the face of what he saw as a medievally cruel practice, are as powerful in their own way as any of the fine prose bequeathed us by du Bois, Frederick Douglass or Carson McCullers. His Due Process jurisprudence, as applied to indigent criminal defendants, the children of illegal immigrants or helpless welfare dependants throughout the 1970s, speak to the heartlessness of modern urban life with an élan and insight that would not have disgraced a John Schlesinger script or a Vonnegut novella. And Brennan’s personal criterion for determining obscenity in publications, his nicely opaque “limp dick test”, is a testament to the reality of that sunny American insistence that that the life of the law has not been logic; it has been experience.
Immersion has its downsides however for an Irish reader. To spend any serious time with Brennan’s work is to feel all over again how many years in the homeland were eaten by the locusts. Pregnant Irish women are still held hostage by Walsh’s cruel Aristotelianism, even in cases of rape or incest. And the state is still coming to terms with the fact that the Irish judicial system spectacularly failed two generations of children who were trapped in those barbaric borstals, psychiatric hospitals and “laundries” that disgraced the independent state until well into the 1970s. This year’s celebration of seventy years of vigorous judicial review since 1937, much trumpeted by lawyers like Gerard Hogan, ought in decency to be tempered in this light. It would be childish indeed to end by asking “what Brennan would have done” if Big Bill has stayed in Roscommon and if somehow his son had graced the Irish bench between 1956 and1990. An honest man knows in his heart that the nasty Catholic polity which we have only recently buried hardly deserved a judge of his humanity and insight. Despite the best efforts of the lawyers profiled in Rosen’s last chapter, the fundamentals of Justice William Brennan’s American legacy are secure. His Irish one will be determined by what we do next.
John-Paul McCarthy holds the Usher-Cunningham doctoral studentship in Irish history at Exeter College, Oxford, where he tutors in Irish history. He is currently finishing a biography of Maurice Moynihan, to be published by Cork University Press.