Justice William J. Brennan, Jr. led the Warren Court revolution and it for years thereafter. If a great man is one who leaves his mark upon the social order, Brennan, who retired from the Supreme Court last year, is a very great man indeed. But was he a great judge?

Our system contemplates that the power to govern shall be diffused and also limited both by law and by broad-based electoral accountability. This is manifest in federalism, the separation of powers, the rule of law, and the consent of the governed. Judicial activism is so alien to those principles and our folklore that no Supreme Court Justice has ever tried in public to justify it. Nor has any Justice ever proclaimed or admitted in public that he was an activist. On the contrary, judicial aggressors trumpet their innocence. For example, in Miranda v. Arizona (1966), Chief Justice Earl Warren announced: “We start . . . with the premise that our holding is not an innovation. . . .” Why the claim of innocence, if no offense was contemplated? Yet the upshot of Miranda was a new constitutional rule that a confession is not acceptable unless the confessor had been “warned,” i.e., advised of his rights and risks. Similarly, in Gideon v. Wainwright (1963), Justice Hugo Black pretended that Powell v. Alabama (1932) had long before established a general right to appointed counsel. And in Griswold v. Connecticut (1965), Justice William O. Douglas claimed that the use of contraceptives was sanctioned by “emanations” from an 18th-century Bill of Rights somehow made applicable to the states by a fair-trial provision in a Reconstruction amendment.

All this, one suggests, is what Plato called “noble fiction”—calculated to hide from the governed the naked power of their magistrates. But in 1986, a less than sophisticated plea by the then Attorney General, Edwin Meese, for judicial moderation provoked Justice Brennan into lifting the mask and giving us the closest thing we have to a public apologia for wholesale government by judges.

The Constitution, Justice Brennan said, embodies “the aspiration to social justice, brotherhood, and human dignity that brought this nation into being.” It is “a sublime oration on the dignity of man” and “a sparkling vision of the supremacy of the human dignity of every individual . . . the lodestar for our aspirations.” Surely the “nine old men,” who in the 1930’s struck down one piece of New Deal legislation after another, would have concurred fully in this view, though on the basis of a very different idea of what social justice and human dignity meant. So, too, presumably, would the laissez-faire activists who, in Lochner v. New York (1905), struck down a maximum-hour law for bakers because, as they saw it, “social justice” required “liberty of contract” to safeguard a person’s dignity and privacy by permitting him to determine for himself his hours of labor.

Perhaps the “nine old men” would have agreed that aspirational standards for adjudication are justified, as Justice Brennan explained, because the “sources of potential enlightenment” as to the intended meaning of the Constitution were often “sparse and ambiguous,” and “the Framers themselves did not always agree about the application or meaning of particular provisions. . . .” And was it the intent of “the drafters, the congressional disputants, or the ratifiers” that was relevant? Obviously Justice Brennan questioned the whole notion of original intent with respect to “a jointly drafted document drawing its authority from a general assent of the states.” It followed that in crucial cases courts should look beyond the pedestrian words of the written document to the ideals that (according to him) inspired them. Indeed, the very purpose of the Constitution was to make those ideals “transcendent” by putting them “beyond the reach of temporary political majorities”—and (one might add) under the guardianship of temporary judicial majorities instead.

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Let us consider now what Justice Brennan’s aspirational constitution mandated. For one thing, it unequivocally and absolutely forbade capital punishment. If Justice Thurgood Marshall was the only colleague to agree with him on this, perhaps the reason was that the written Constitution in four distinct provisions in the Fifth and Fourteenth Amendments explicitly accepts death penalties. Nor did, or do, most Americans share the Brennan version of our aspirations. Following the first announcement of the Brennan minority view, at least 35 states and Congress enacted capital-punishment measures, and hundreds of juries issued death verdicts. According to Justice Marshall, we would not be so perverse if we were a more “informed citizenry.” The electorate unqualified for its job! (Sooner or later an activist tongue was bound to slip—to blurt out what has always been implicit in the activist approach.)

Miranda and (eight days thereafter) Schmerber v. California revealed another difficulty in Justice Brennan’s aspirational constitution. He alone on the bench found these two decisions compatible—the latter permitting forceful extraction of a person’s blood for use as evidence against him, the former outlawing unwarned, custodial confessions no matter how voluntary in fact.

Johnson v. New Jersey came a few days after Miranda. It held that Miranda “rights” did not pertain to persons who, prior to Miranda, had confessed their way to jail. This meant that there was nothing inherently unconstitutional in convictions based on unwarned voluntary confessions. It followed that, as the Court said later in Stone v. Powell (1976), the Miranda warning rule was “a judicially created remedy or sanction against police misconduct rather than a personal constitutional right of the accused.” Miranda and Johnson, then, were as fundamentally incompatible as were Miranda and Schmerber. Yet again Brennan—this time with two colleagues, Earl Warren and Abe Fortas—supported both decisions. (The reason, here as in other instances, had more to do with the internal politics of the Warren Court than with the Constitution, whether written or aspirational.)¹

These cases teem with problems in the ethics of activism. Two deserve special attention. First, was it proper to save Miranda—a confessed rapist—whose conviction was based on a then long-settled rule of constitutional law when the Court was so splintered and so far from consensus as to the new meaning of self-incrimination? Second, Justice Brennan and Marshall in case after case always voted against the death penalty on what they insisted were constitutional grounds. Yet that issue had long since been settled against them by the Supreme Court itself—to say nothing of the language of the written Constitution. Obviously the two dissenters did not as judges respect the authority of the Supreme Court. That is, they did not accept for themselves the rule of high-court law that binds the rest of us. They rejected both obedience to law and the hemlock of resignation.²

Yet if the Brennan-Marshall stance on capital punishment was extra-legal, it was not without legal effect. Predisposed in a way that would disqualify them from sitting as jurors, the odd couple persisted in sitting as judges in death-sentence cases. They did not prevail in principle, but neither did they totally fail, since their two automatic votes for reversal had a slanting effect. They were decisive in Coker v. Georgia (1977), when they supplemented a four-judge view that death was excessive punishment for rape. They were decisive in Lewis v. Adamson (1990), when they supplemented a two-judge view—two Justices having recused themselves. Yet one day earlier, when the full Court sat, a death penalty in similar circumstances had been upheld, so that an Arizona law which five Justices sustained on Wednesday was overturned by four Justices on Thursday. The chance-ridden upshot: Adamson lives, his counterpart (Walton) dies.

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It may well be that a murderer, however gross his crime, should have an absolute right to life, while a healthy fetus should not. Yet surely these are imponderables. And surely that is why the language of the Constitution indicates far more clearly who shall resolve such matters than it indicates what the outcome shall be.

We have no way of knowing the “aspirations” of the American people, but we do know quite objectively something about what they wanted with respect to abortion and capital punishment before the judiciary intervened. Legislation in all states substantially restricted the one and in most states authorized the other. Moreover, as we have seen, Congress and a great majority of the states reinstated the death penalty after the Court’s provisional veto. So, too, frustrated in more direct efforts to thwart Roe v. Wade (1973), 37 states—like Congress—banned or restricted the use of public funds to finance abortions. If all this is not a precise measure of public attitudes, surely it is a more respectable guide than anyone’s intuitive assessment.

Here, then, we come to what may be the basic problem of judicial activism in Justice Brennan’s day: the effort to force upon the masses the moral values of an intellectual elite. A Newsweek essay on the Dukakis presidential campaign of 1988 put it pithily: “Not only are most of the legalistic [i.e., activist] additions to liberalism unpopular—they come with an impolitic mind-set, the idea that a backward electorate must learn to obey the wisdom of enlightened judges.”

Not so long ago liberal doctrine held that judges should avoid constitutional adjudication whenever possible. This view found classic expression in the Brandeis minority opinion in Ashwander v. T.V.A. (1936) and achieved majority status in Rescue Army v. Municipal Court (1947). As Justice Louis D. Brandeis expressed it off the bench: “The most important thing we do is not doing.” The thought was that the fewer social issues preempted by the courts, the more were left for resolution by the democratic process. But about thirty years ago a new breed of liberals, who had lost hope of achieving their goals via legislation, put all their policy eggs in the judicial basket. This entailed an all-out attack on the Brandeisian gateway barriers (e.g., the “political-question” and “standing” doctrines)—an attack whose goal was to circumvent as much as possible the political, in favor of the judicial, arena. The result was the Warren Court revolution—the renaissance of wholesale judicial policy-making (after its demise in 1937).

The first great victory came in Justice Brennan’s majority opinion in Baker v. Carr (1962). There, by narrowing the political-question barrier, he multiplied opportunities for what old-fashioned (Brandeisian) liberals called government by the judiciary. Baker v. Carr, said Justice Felix Frankfurter in dissent, flew in the face of “a uniform course of decision established by a dozen cases, including one by which the very claim [now upheld] was unanimously rejected only five years ago.” The upshot was that among many rival theories of representation the Court selected one—the so-called “one-man-one-vote” system—and imposed it upon America. No matter that the chosen approach, as Frankfurter observed,

. . . was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today.

In other words, the American people were denied what is perhaps the most basic democratic freedom: the choice of how they shall be represented in the councils of their government.³

Apologists contend that judicial intervention was justified in this instance because the political processes were helpless in the face of the excess power of those groups favored by the status quo. History refutes this contention. The victims of the English Rotten Borough system prevailed with nothing but political pressure. That too is how in state after state we abolished religious qualifications on the suffrage. That is how in state after state we eliminated property qualifications for the suffrage. That is how we obtained the popular election of United States Senators. That is how women got to vote. That is how in state after state we abolished poll taxes (until the Court intervened). That is how eighteen-year-olds got to vote.

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In a further effort to divert policy issues from the political to the judicial arena, Justice Brennan fought a perpetual battle against the Burger Court with respect to “standing.” United States v. Richardson (1984) illustrates the problem. There a taxpayer as such challenged an act of Congress which provided that CIA expenditures may not be made public. In the plaintiff’s view this violated the constitutional provision (Article 1, section 9) that “a regular statement of Accounts of the Receipts and Expenditures of all public money shall be published from time to time.” The Court found plaintiff had no standing to sue since his was only “a generalized grievance” shared by “all members of the public.” The remedy for such grievances was the political process. Justice Brennan dissented:

The “standing” of a plaintiff to be heard on a claim of invasion of his alleged legally protected right is established, in my view, by his good-faith allegation that “the challenged action has caused injury in fact” [with] respect of his right as a citizen to know how Congress was spending the public fisc [and] as a voter to receive information to aid his decision how and for whom to vote. These claims may ultimately fail on the merits but Richardson has “standing” to assert them.

Justice Lewis F. Powell—his brother Brennan’s chief opponent on standing—responded in this famous passage:

. . . we risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the counter-majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.

The considerations outlined above underlie, I believe, the traditional hostility of the Court to federal taxpayer or citizen standing where the plaintiff has nothing at stake other than his interest as a taxpayer or citizen. It merits noting how often and how unequivocally the Court has expressed its antipathy to efforts to convert the judiciary into an open forum for the resolution of political or ideological disputes about the performance of government. [Emphasis added]

It is true that Justice Brennan’s efforts on behalf of free speech and press were remarkable; there he stood with the giants.⁴ But free utterance is a device to facilitate policy-making by “we the people” and our elected representatives. Hence the great paradox of Justice Brennan’s career: he sharpened the basic tool of democracy, yet most of his other major efforts were calculated to frustrate policy-making by the democratic process. “We the people” had freedom of utterance with respect to capital punishment and abortion, for example, and we made our choices. Justice Brennan repudiated them. How different was Brandeis. He too fought hard for free speech. But he also fought hard to safeguard the legislation that it produced—even when that legislation offended his own sensibilities.

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Alone among those who govern in America, Supreme Court Justices are neither politically nor judicially accountable for their edicts. Some of them—mindful of the blinding, the corrupting effect of unbridled power—try conscientiously to resist temptation. Other less inhibited Justices apparently feel duty bound to improve the law—which entails remaking our world in their image. The rationale is ancient and ubiquitous: the law is out of joint and so are the people and processes charged with putting it straight. This—the Brennan legacy—desecrates an old liberal tradition. It was not Edwin Meese after all but Thomas Jefferson who condemned the Justices for opposing “the common sense of the nation” and for making the Constitution “a thing of wax which they may twist and shape into any form they please.” It was Abraham Lincoln, echoing Jefferson and Andrew Jackson, who argued that

. . . the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers. . . .

It was the Progressive historians, inspired by the Populists, who condemned constitutional law as a sham. It was Woodrow Wilson who charged the Supreme Court with having made itself “a constitutional convention in continuous session.” It was Brandeis who said:

[A judge] may advise; he may persuade; but he may not command or coerce. He does coerce when without convincing the judgment he overcomes the will by the weight of his authority.

And it was the New Deal “Court fight” in 1937 that drove the Justices “back to the Constitution” (for a while). Now Brennanism repudiates this age-old liberal heritage in favor of what (when Brennan was younger) liberals ridiculed as “judicial supremacy” and the “divine right of judges.”

The problem for activists like Justice Brennan is not, as alleged, that the Constitution is unclear. The real difficulty is that what the Founders wrote (highlighted by what they did not write) is all too clear. They simply did not write a lot of things some people think they should have written.

The Constitution’s basic concern is the structure and process of government. Indeed, there is very little else in it. For the Founders knew the futility of trying to legislate for future generations. In that sense Justice Brennan was right; there is little law in the Constitution. In very large measure it leaves substantive policy issues for resolution by “we the people” via constitutionally prescribed procedures. Unlike the Founders, however, impatient activists of whatever vintage insist upon constitutionalizing their moral values. Yet as a standard for adjudication, Justice Brennan’s “lodestar of our aspirations”—like “brotherhood and human dignity”—is unintelligible. If it really is the key to the Constitution, we have no Constitution, and we are back to where we were in 1930 when Justice Oliver Wendell Holmes observed:

As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights [of self-government] if they happen to strike a majority of this Court for any reason as undesirable.

Justice Brennan is a man of noble purpose, high intelligence, plus legendary wit and charm. He led a revolution that changed our world. But his revolution was imposed from above. The American electorate played no part and had no choice. If this is democracy and human dignity at work, what is dictatorship?

¹ See “The Optimist's Tale,” by M.V. Tushnet, University of Pennsylvania Law Review, vol. 132, p. 1257, 1984, for details.

² There are compelling reasons for the traditional view that, having recorded a dissent, a judge is bound thereafter to abide by the Court's decision (of course he is free in conference to urge colleagues to mend their ways). Like Justices Brennan and Marshall, Justice Antonin Scalia has found recently that he cannot accept a Court holding, but unlike them, he does not insist that his dissenting view is law—rather, he abstains.

³ One of the flaws of one-man-one-vote is that, requiring equally populated legislative districts, it ignores gerrymandering. It requires merely that gerrymandered districts satisfy the uniform-size rule. Thus, as sophisticated observers have pointed out again and again, the 1990 governorship races in California and Texas, for example, were critical because unless Republican governors were elected, Democrats would control redistricting—read gerrymandering—under the 1990 census. One-man-one-vote was a great public-relations ploy by the Warren Court, but one that promised more than it has yet delivered.

⁴ E.g., Roth v. United States (1957); New York Times v. Sullivan (1964); Paris Adult Theater v. Slaton (1973).