The words according to Brennan

This article appears in the October 23, 1985, edition of The Wall Street Journal.

Supreme Court Justice William J. Brennan Jr. is an angry man who has begun to give vent to his anger off the bench and in public. Although his recent Georgetown University address appears to have been well received by those whom it was calculated and designed to please -- the address is filled to the brim with righteous liberal indignation -- this sort of public posturing is almost unseemly and is certainly injudicious.

Federal judges are supposed to be nonpartisan, and they are not supposed to accuse officials in the other branches of government of arrogance, facile historicism (whatever that means), or plotting wicked schemes to deprive minorities of their rights. Justice Brennan's law clerks should have reminded him of the sage observation -- uttered almost 400 years ago by Francis Bacon-that a much-talking judge is like an ill-tuned cymbal.

While not mentioned by name, the immediate object of Justice Brennan's anger is, quite obviously, Attorney General Edwin Meese III; in one way or another, Justice Brennan manages to make that clear enough. Still, no one who knows Mr. Meese would recognize him in the epithets Justice Brennan employs: "arrogance cloaked as humility," feigning "self-effacing deference," leading a "chorus of lamentations," or, for one more, having "no familiarity with the historical record."

This last charge is almost amusing coming from a man who subscribes to the view that nothing in the historical record lends support to a state's policy of apportioning seats in at least one house of its legislature on a basis other than one person, one vote. And it ill-befits a judge to accuse anyone of arrogance when he himself is on record as conceding that the lower-court decision in the case before him follows the letter of the law but then proceeds to overrule it anyway because he finds it to be contrary to the law's "spirit," which he, of course, was able to divine. (This was in 1979, by which time Justice Brennan had become quite skilled in divination; he was part of that 1965 majority that found a constitutional right to sexual privacy in "penumbras, formed by emanations" from the First, Third, Fourth, Fifth, Ninth and 14th Amendments.)

Mr. Meese had suggested that the judges ought to be guided by the intention of its framers when called upon to expound the Constitution's meaning. Justice Brennan has nothing but disdain for this idea. What framers, he asks, and what intention? Anyone familiar with the historical record knows that the so-called framers "hid their differences in cloaks of generality" precisely because they could not agree on the meaning of particular constitutional provisions. Besides, he goes on, even if they had intended anything specific, after 200 years we could not possibly know what it was. In this situation, all the judges can do -- and the candid judge will admit it -- is read the constitutional text "as 20th-century Americans," asking what its words mean "in our time."

But Justice Brennan is not being as candid as he would have us believe. The last seven or eight pages of his address are given over to talk about human dignity -- he's for it -- and, in his only reference to a specific constitutional issue, he illustrates the meaning of human dignity by discussing capital punishment. He is against it; not only that, he insists it is unconstitutional. But the Constitution itself lends no support whatever to this judgment.

In no uncertain terms it permits capital trials when preceded by a "presentment or indictment of a Grand Jury"; permits a person to be "put in jeopardy of life," provided it not be done twice "for the same offense"; and permits both nation and states to deprive persons of their lives with but not "without due process of law." In addition to these various Fifth (and 14th) Amendment provisions, Article II, Section 2(1) empowers the president "to grant reprieves." There are no "textual ambiguities" to resolve here; the Constitution permits capital punishment. But here and elsewhere, according to Justice Brennan, the Constitution embodies "the values of 1789," and he prefers to follow his up-to-date conscience.

A women's rights case of a dozen years ago (Frontiero vs. Richardson) provides a good example of Justice Brennan's conscience at work. The issue was whether sex, like race, should be treated as a suspect classification, and Justice Brennan circulated a draft opinion in which classification by sex was held to be impermissible under almost any circumstance. This was, of course, the intent of the Equal Rights Amendment, which at the time had passed Congress but had not yet been ratified -- and, in the event, would not be ratified -- by the constitutionally required three-fourths of the states.

Justice Brennan was aware of this, of course, but as Bob Woodward and Scott Armstrong report in their book, "The Brethren," he was accustomed to having the court "out in front, leading any civil rights movement." As he saw it, "there was no reason to wait several years for the states to ratify the amendment" -- no reason other than the fact, which he knew to be a fact, that the Constitution as then written would not support the decision he wanted the court to make. Unable to persuade Justice Potter Stewart to join the coalition he had put together, Justice Brennan lamented to his law clerks that he had come "within an inch of authoring a landmark ruling that would have made the Equal Rights Amendment unnecessary."

Only a public grown accustomed to government by the judiciary could fail to note the radical implications of this statement. It suggests that the Constitution can be amended in two ways, one difficult and the other easy; one by following the procedures delineated in Article V that, in the typical case, require a two-thirds vote in both houses of Congress and ratification by three-fourths of the states, the other by vote of William J. Brennan joined by four other Supreme Court justices.

In his view, the trouble with the Constitution is not really that its provisions are "obscure," but that its principles are old, "anachronistic," as he said at Georgetown, written for "a world that is dead and gone"; it is the job of the "20th-century Americans" on the Supreme Court to adapt them "to cope with current problems and current needs." The Constitution must be kept in tune with the times.

This is easily said -- which is why it is so frequently said -- but not so easily done, and not so easily done because there is typically no agreement on what is required to deal with the problems or meet the needs. In fact, the 20th century is filled with Americans -- in the electorate, Congress, state legislatures, White House, statehouses, and lower courts of all descriptions -- who have ideas on what is required by the times but are not in agreement. Even a glance at the Reports will show the Supreme Court to be sharply divided.

In principle, of course, the justices' notions of what is required must be given equal weight and only time will tell who on the court is right, Justice Brennan or, for example, Chief Justice Warren E. Burger. But when "time" and not the constitutional text provides the standard by which judicial decisions are to be measured, the inevitable consequence is a Constitution that can be interpreted but not misinterpreted, construed but not misconstrued. Why, then, bother with a Constitution? Of what use is it?

The framers had a better grasp of these matters. They wrote and solemnly adopted a Constitution in order to keep the times -- to the extent possible -- in tune with the Constitution. In the words of the great chief justice, John Marshall, the principles of the Constitution "are deemed fundamental {and} permanent," and, except by means of formal amendment, "unchangeable."

Five years ago -- that is to say, on the eve of the 1980 presidential election -- Justice Brennan was said to be not an angry man but a tired man soon to announce his retirement from the bench. The election of Ronald Reagan changed all that. The truth is, the chief object of his current anger is not Edwin Meese but Ronald Reagan -- the man who appointed Mr. Meese and, what is more, stands ready to appoint Justice Brennan's successor. Justice Brennan would like nothing more than to deprive him of that opportunity.

Mr. Berns is the Olin distinguished scholar in constitutional and legal studies at the American Enterprise Institute.

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