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Wednesday, February 03, 2021

Remembering Justice Brennan (Updated)

In their biography of Justice Brennan (which I reviewed), Seth Stern and Stephen Wermiel describe Brennan's post-retirement concerns that his legacy on the Court would be forgotten, especially as compared with his friend Thurgood Marshall.

Irin Carmon profiles Justice Sotomayor in anticipation of her assuming the new role as senior-most dissenter for the "New Three Musketeers" of herself, Justice Kagan, and Justice Kruger (an African-American woman appointed to replace the retired Justice Breyer). Carmon writes "[o]n a Court that runs on seniority, Breyer’s move would anoint Sotomayor as the most senior justice in what is usually, in the most heated cases, the resistance — the true heir to Ginsburg and, before her, John Paul Stevens and Thurgood Marshall."

The use of Marshall rather than Brennan in that sentence exemplifies Stern and Wemiel's point and Brennan's concern. Brennan spent 15 years (from Justice Douglas' 1975 retirement) as a liberal senior associate Justice on the increasingly conservative Burger and Rehnquist Courts. Brennan assigned those dissents. Or he assigned the majority opinion when he cobbled together a majority without the Chief (a skill for which he was renowned). Marshall served that role for one term between Brennan's 1990 retirement and Marshall's 1991 retirement.

This is not to disparage Marshall, a legal giant and an historic Justice. But if we are discussing the Court as it operates and tracing the line of "great dissenters" or "great leaders of the dissenting bloc," that line runs through Brennan, not Marshall.

Update: This appears to be a common phenomenon. Stories and commentary about Sotomayor's recent capital-punishment dissents have described her as Marshall's heir in that area. Even though Brennan assigned and wrote as many of those opinions and joined with Marshall in the routine dissents from cert denials.

Following RBG's death in September, I asked whether Ginsburg's greater influence was as a Justice or litigator, comparing the general view that Marshall's greater influence was as a litigator. The view had been that Marshall's significance arose from being the first African American Justice and for bringing that voice to the Court, but not for the influence of his jurisprudential work. The trend seems to be to bolster Marshall's reputation as a jurist. And that seems to be coming at the expense of Brennan's.

Further Update: Two further thoughts, from an email exchange with a reader. First, this was a piece of popular journalism written for a non-legal audience and Marshall is more famous among non-lawyers/non-legal scholars than Brennan. Second, there is a tendency to inflate Marshall greatness and significance as a jurist so it matches the unquestionable significance of his membership on the Court. The combination is problematic, to the extent we regard journalism as "writing the first draft of history."

To use an analogy from my other great interest: Jackie Robinson was a a figure of great and essential historic importance, as well as a great baseball player. But he was not a greater baseball player than Stan Musial (or, for that matter, Willie Mays or Hank Aaron). And it is unwise to say he was. As the reader said, because of his historical significance, it makes sense that MLB retired Robinson's number and marks Jackie Robinson Day every season. But we do not want Bill James to rank Robinson higher than Musial, Mays, and Aaron because of that historical significance in becoming part of the game.

Posted by Howard Wasserman on February 3, 2021 at 08:52 AM in Howard Wasserman, Judicial Process | Permalink


To be clear, I don't disagree with the inclusion of Stevens.

He was the senior liberal for a significant amount of time.

I just was answering a theoretical argument for including let's say Marshall/RBG/Sotomayor.

But, Stevens' inclusion ruins that idea.

Posted by: Joe | Feb 5, 2021 12:04:30 PM

But including Stevens on the list is accurate in describing the Court's dynamics--Stevens was senior associate from 1994-2010 (almost as long as Brennan) where he played the leadership role that the article describes Sotomayor assuming. The point is who was in that role prior to that. It was Brennan, not Marshall.

Posted by: Howard Wasserman | Feb 5, 2021 6:53:55 AM

Brennan wrote repeatedly on criminal justice matters, including his rather well known death penalty dissents. Marshall is symbolically known there, but then, the reference to "Stevens" shows it is not just about someone who spend his pre-court career in the trenches on such issues.

He also wrote a good many Fourth Amendment dissents. Sotomayor also is getting a decent about of attention for her travel ban dissent as well as other religious liberty dissents. Again, Brennan wrote a lot on that question too, repeatedly at least partially in dissent.

The reference to Stevens also ruins the idea that the dissents are by people from a certain minority point of view (including to the degree that women's rights included a sort of discriminated class) as would be if it was just Ginsburg and Marshall. It is true that Kagan was Marshall's clerk, for what it is worth.

Posted by: Joe | Feb 4, 2021 4:44:13 PM

That's the perception. At least w/r/t Crim Pro and capital punishment, I think it's wrong. And w/r/t this amorphous "leadership" role that Carmon was writing about, it is entirely wrong.

Posted by: Howard Wasserman | Feb 4, 2021 2:18:43 PM

I try to avoid reading Burger Court opinions unless I have to for work because they're generally pretty bad, but is it possible that Marshall wrote more important dissents on race and criminal procedure, the areas of Sotomayor's and I suppose many progressive lawyers' interest, than Brennan, while Brennan's leadership on First Amendment issues is less fashionable?

Posted by: Asher Steinberg | Feb 4, 2021 2:09:06 PM

I agree that I am not sure if the premise of Carmon's paean to Sotomytor is accurate or not. My point was that if it is accurate, whose footsteps she is following.

Posted by: Howard Wasserman | Feb 4, 2021 6:17:47 AM

Interesting question. Off the top of my head, I'm somewhat skeptical of the idea that the senior-most Justice on the dissenting side is necessarily the "leader" of that side. True, they will often have the assignment power for dissents. But that doesn't necessarily mean influence. Some Justices have a lot of influence on their colleagues, and others have less. I would think the leader of the dissenting side is more the Justice who has influence on their colleagues, even if only their dissenting colleagues. Brennan was very good at that, from what I can tell; I am not sure if that is true of Justice Sotomayor.

Posted by: Orin Kerr | Feb 4, 2021 3:11:51 AM

After going through quite a few of Stevens' opinions for a couple of articles, I have very little respect for him now as a philosopher, thinker, or jurist.

And when I say I have little respect, I mean I have no respect. He either was very poorly read or he intentionally misstated sources.

Posted by: thegreatdisappointment | Feb 3, 2021 10:22:06 PM

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