Pragmatism over principle:
the mixed legacy of
William J. Brennan

"Pragmatism vs. principle" would be an appropriate title for a book about the role of the United States Supreme Court over the past 60 years.
So it's appropriate that this same phrase describes not only the judicial legacy of the man some have called "the most influential associate justice in Supreme Court history," but also the political calculation which landed him there.
Justice William J. Brennan Jr., who retired from the Supreme Court in 1990 at the age of 84, died in Arlington, Va. on July 24.
Mr. Brennan, a Democrat and former labor lawyer, was plucked from the New Jersey state Supreme Court by President Dwight D. Eisenhower on Sept. 29, 1956.
Eisenhower's advisors greeted the announcement of Justice Sherman

Minton's pending retirement with a purely political calculation: the president's re-election chances would be strengthened if he were seen to act as a bi-partisan senior statesman, naming to the court a Catholic Democrat from the Northeast. And the press played Eisenhower's magnanimity precisely as his advisers had wished.
Eisenhower is widely reported to have later complained the appointment of the activist liberal Brennan was "one of my two biggest mistakes" (the other being the appointment of Earl Warren as chief justice.)
But the inescapable conclusion is that Eisenhower put the pragmatic need to win above any concerns over the long-term ramifications of the new justice's judicial philosophy.
"It is difficult to see how the men around Eisenhower could have missed Brennan's liberalism," wrote Brennan's biographer, Prof. Stephen J. Wermiel, in 1993.
Many of the short-term goals for which Justice Brennan put his activist approach to work were popular. Before his 1964 ruling in "New York Times vs. Sullivan," few would

 
have guessed that the First Amendment protected the press from libel judgments, even in some cases where reports about public officials turned out to be false.
But Justice Brennan convincingly argued that a stricter standard was needed -- that the press should face no penalty unless it could be demonstrated that reporters and editors had knowingly and maliciously conveyed a false accusation. Otherwise, Justice Brennan wrote for the court, "Would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. ... The rule thus dampens the vigor and limits the variety of public debate."
Justice Brennan also helped the law change with the times in a series of precedent-setting birth control cases. In Griswold vs. Connecticut (1965) the court ruled that married couples could not be prevented from acquiring birth control. In the follow-up 1972 case Eisenstadt vs. Baird, Justice Brennan wrote for the court that Massachusetts could not bar the distribution of contraceptives or contraceptive information to unmarried people, either.

Few Americans today would want to see such case law reversed.
But the path to ruin is paved with good intentions.
The principle which Justice Brennan took a sacred oath to protect is that our federal government is one of limited powers, sharply delineated, the dead opposite of an all-powerful monarch -- even one who seems beneficent at first -- reaching down into our everyday lives to dictate what private land can be cleared of trees, how much shall be allocated for the sex education of the retarded, and whether rifles shall have magazines of more than 10 rounds.
Justice Brennan's notion -- expressed in a 1985 speech at Georgetown University -- that "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs," was bound to lead to trouble in the long run.
Once cut loose from the mooring of their original, "static meaning," those "great principles" have turned out to be awfully malleable, indeed.
The Sixth Amendment guarantee of a trial by jury "in all criminal prosecutions"? Why, severed from

 
its old, "static meaning," it turns out that means "in some criminal prosecutions, but only if the defendant faces more than six months in prison on any one charge."
Likewise, the Founders would never have imagined that welfare recipients had some kind of "right" to a government dole, which could not be cut off without granting the recipient the same kind of due process required if you wanted to seize his home. But that's just what Justice Brennan convinced the court to rule in the 1970 case "Goldberg vs. Kelly."
Once such nonsense was driven through the amorphous and ever-widening "due process clause" of the Fourteenth Amendment, it wasn't long before the public learned the "sovereign states" had virtually no powers or prerogatives that weren't subject to review and modification by the new truckloads of federal regulators.
Justice Brennan gradually redefined many a special government benefit (including jobs and law school seats set aside under "affirmative action") as "rights" not qualitatively different from the right to free speech and freedom of religion ... and sometimes even deserving of more protection than such "dead and gone" rights as the right

to bear arms, or to a trial by a jury randomly selected.
Justice Brennan's long-term legacy is a vastly expanded and more intrusive federal government -- no longer restricted by a jealous high court, but instead encouraged and even prodded on in its usurpations by activist justices hoping to craft some socially-engineered, egalitarian utopia.
"To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition," wrote Jefferson to President Washington, Feb. 15, 1791.
What will be the price, in the blood of patriots and tyrants, to herd back within its cage the beast thus set loose by Justice Brennan and his ilk, all with the "best of intentions"?

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com. The web site for the Suprynowicz column is at http://www.nguworld.com/vindex/. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.

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