Justice William Brennan

by Dave Kopel

KDEN-AM radio. July 1990. More by Kopel on jurisprudence.

I'm Dave Kopel, a Denver lawyer, and this is Independent Thinking. After 34 years of service, William Brennan has retired from the Supreme Court.

The opinion that Brennan said he was proudest of was a little-known 1970 case called Goldberg versus Kelly. Brennan's opinion required that states follow reasonable procedures before cutting off welfare benefits -- Before throwing a woman out on the streets, at least give her a fair hearing.

The Goldberg principle applies to more than just welfare. If the state wants to yank your driver's license, make you pay extra taxes, or cut off your Medicare payments, the state has to act fairly. The bureaucrats must listen to your side of the case.

Justice Brennan's guiding principle was that the government should treat people fairly. He insisted that segregation be eradicated from the schools "root and branch."

Brennan was criticized for caring about the rights of people accused of crime. But Brennan understood that if the government wants law and order, the government itself has to obey the law. He wrote the opinion allowing lawsuits against narcotics agents who deliberately violate the Constitution.

Brennan did not let the government cheat. He refused to allow courts to examine illegally-seized evidence.

Brennan's good intention sometimes steered him wrong. He often tried to turn his own ideas of social policy into Constitutional law. In defiance of the plain language of the Constitution, he strongly supported reverse discrimination and strongly opposed the death penalty. He showed little regard for fifth amendment property rights, or tenth amendment states' rights.

Even so, through all his 34 years on the bench, Brennan was a liberal in the best sense of the word. His errors were on the side of compassion. In all his personal relations, including with conservative Chief Justice Rehnquist, Brennan was good-spirited, charitable, and tolerant.

When Brennan joined the Supreme Court in 1956, much of the Constitution was an empty shell. Racial segregation was normal. Women were denied the equal protection of the law. Citizens had little security from illegal searches by state police. A poor person could be accused of a felony and sent to prison without even having a lawyer to defend him. Police coercion of suspects during interrogation was routine. In some states, it was even illegal for married couples to use contraceptives.

Justice Brennan helped change all that. He helped restore the Constitution to its rightful place as the guardian of our rights.

William Brennan made America a freer and fairer place, and that makes him an authentic American hero. This has been Dave Kopel, for Independent Thinking.

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