JIM LEHRER: Retired Supreme Court Justice William Brennan. He died today at the age of 91. Joshua Rosenkrantz clerked for Justice Brennan. He's now the executive director of the Brennan Center for Justice at New York University's School of Law. Douglas Kmiec was an assistant attorney general during the Reagan administration; he now teaches law at the University of Notre Dame. And NewsHour regular Stuart Taylor; he covers the Supreme Court for the American Lawyer and Legal Times. Mr. Rosenkrantz, how will you remember Justice Brennan?
JOSHUA ROSENKRANTZ, New York University Law School: I'll remember him first and foremost as an extraordinarily wonderful human being who just cared so much about everyone who crossed his path, and secondarily as one of the most profound movers in our history, certainly in this century, on the Supreme Court.
JIM LEHRER: Stuart, one of the most profound movers in this century on the U.S. Supreme Court?
STUART TAYLOR, The American Lawyer: I think he was that. He's widely credited, including by Justice Antonin Scalia, his philosophical opposite, as being the most influential justice of this century and one of the most in history, but that's not what I suppose I'll remember him for the most. I was in the--like many of my colleagues--was privileged to visit with him in his chambers. And I'll remember him as perhaps the most lovable, likeable, charming, humble, delightful, very important person I've ever encountered. I remember him saying things like "When you get this damn job, my, nothing you've ever done prepares you for it;" things like, I've been excited and thrilled every day since I got here, and I'll be excited and thrilled every day until I leave, things like, see, I didn't really settle into the liberal mold until I'd been here a few years. I had some surprises. He was--
JIM LEHRER: In other words, he talked like a real person.
STUART TAYLOR: He talked like a real person. He was a real person, and I never heard him say really a mean thing about anyone in a number of visits, and I think it would be hard to find someone who knew the man well, who didn't like him a lot.
JIM LEHRER: Mr. Kmiec, just on the legal--his legal legacy--what would you--how would you rate him in terms of his impact?
DOUGLAS KMIEC, Notre Dame University Law School: Well, one can't underestimate the impact of Justice Brennan. It is, indeed, profound in the area of voting rights and free speech, the religion clauses, steadfast opposition to the death penalty. Justice Brennan was an activist. He prided himself on being a legal activist. His conception, he said just a few years ago, of the court was a conception which really was framed and very much in New Deal terms, that it was the role of the court to be the creator, the creator of opportunity, of liberty, of equality, and most of all, and what he liked to talk about most of all, about human dignity. Now, there is no question that he has had a profound effect on the law because of those beliefs. The opposition, of course, tends to think that as warm and as genial as Justice Brennan was, sometimes those beliefs got way out ahead of the text and the history of the Constitution.
JIM LEHRER: In other words, his activism was not generally applauded by those on the conservative side. Quite the opposite. They criticized himself severely, did they not?
DOUGLAS KMIEC: They did criticize him, not as a man. I think Stuart is exactly right. Justice Brennan was a very likable, very warm, very persuasive man. In fact, he's well known as the person who built consensus on the court in some of its most important opinions. Yet, the difficulty is he had a conception of unfettered individual autonomy, which basically meant that he would--he would strike down laws against the protection of the flag, for example. He would strike down laws prosecuting obscenity. He would use the mantle of the court to set aside those things which he thought were fettering human liberty, but it was his conception of human liberty and really not others.
JIM LEHRER: Mr. Rosenkranz, where did that conception come from?
JOSHUA ROSENKRANZ: Well, Justice Brennan believed very strongly that what we had as the primary law of the land was a living Constitution. He saw in the living Constitution a conception of liberty and of equality that the framers, themselves, breathed into the Constitution, so that over the course of time, with changing lifestyles, changing social mores, changing society, the Constitution, itself, would change to meet occasions, to meet eventualities that the framers, themselves, could never have contemplated.
JIM LEHRER: But did that arrive out of his own study, out of his own thinking, out of his own mind, or did--or was it based on the reading of others who came before him? In other words, where did the Brennan philosophy come from?
JOSHUA ROSENKRANZ: I think it came first and foremost from the sense that at the heart of the Constitution is the importance of human dignity. And everything else--
JIM LEHRER: This was a personal belief of his, or a legal belief?
JOSHUA ROSENKRANZ: This was--I would say it's a legal belief. One can see where it came from, looking at Justice Brennan, the man, and perhaps looking at his history. But he firmly believed that these principles were rooted in the Constitution and that the framers, themselves, breathed life into the Constitution in a way that they expected it to grow, to respond to changing times.
JIM LEHRER: Stuart Taylor, how would you trace his--he told you--he said, hey, I didn't come here and--what did he say to you--I didn't come here in the liberal mold?
STUART TAYLOR: His background was interesting. His parents were Irish immigrants. His father began as a coal heaver in a brewery, I think it was, became a labor leader, became a Newark city official in charge of police and fire. So he--
JIM LEHRER: Newark, New Jersey.
STUART TAYLOR: Newark, New Jersey. And so he had a modest background. He was a labor lawyer, but I think--he was appointed to the court by President Eisenhower in 1956, and was--there were little signs that he was liberal at the time, but Eisenhower missed them; he came to regret them later. And it wasn't until the Warren court's heyday beginning about '62 or so that Justice Brennan really began to start laying down, rolling up those big opinions, Baker vs. Carr, Green vs.--
JIM LEHRER: What were those?
STUART TAYLOR: Baker vs. Carr was reapportionment.
JIM LEHRER: That's one vote.
STUART TAYLOR: The one man, one vote. That was '62. '64, New York Times vs. Sullivan; perhaps the cornerstone of 1st Amendment freedoms, not only protecting the press against libel suits by public officials but pronouncing a broad vision as wide open, robust, uninhibited debate. It's certainly true, as Doug says, I think, that a lot of this came from inside of Justice Brennan and only in the most poetic and mystical sense from the document he was interpreting, which does not contain the word "dignity," but I think as, Josh Rosenkrantz says, he believed that the Constitution was infused with the spirit that he found in the decisions, but he was also a very cagey Irish politician in terms of getting others to come along. And I can give you an example, if you'd like.
JIM LEHRER: I'd love it.
STUART TAYLOR: In 1982, there was a decision called Plyler vs. Dough, which involved the Texas law saying children of illegal aliens can't go to public school for free like everyone else. It went to the Supreme Court, Brennan clearly not only wanted to strike it down, but he wanted an opinion saying there's a fundamental right to education, which would have been broad enough perhaps to strike down the new California law that says the same thing. He couldn't quite get there, but here's what he said to me about how he pushed. "I got an awful lot out of Plyler"--that was the name of the case--"with Louis Powell's help. But I wasn't able to get that key word, it's a fundamental right." He said it's an important right, a substantial right, a very important right, a very substantial right, and everything but that one little word, fundamental right, I couldn't quite get there. But he did strike down the Texas law.
JIM LEHRER: You mean he got there in his mind, but he couldn't get there with the Constitution?
STUART TAYLOR: No. He got--I'm sorry--he got the court to strike down the law, but he couldn't get five people to subscribe to the opinion he wanted to write saying education is a fundamental right; you can't take it away from anyone. He couldn't quite get the precedent that he wanted. He won the immediate case. He couldn't quite get all the court to come along. In other cases--he probably never got 'em in many cases to go all the way to what he wanted to do, but he--as much as brains and charm and putting his arm around people and saying, hey, pal, can we work some language out, can get you there, he got 'em there.
JIM LEHRER: He got 'em. Mr. Kmiec, he did get 'em there, did he not?
DOUGLAS KMIEC: Well, there's no question that he got them there and it's interesting. During the Warren court period, of course. He was largely in the majority as we move into the Burger and Rehnquist court periods, the number of his dissents increased tenfold, but William Brennan was the type of cagey politician, as Stuart describes him, who would not just try to win with the majority opinion. He'd try and win with the dissent. So if he didn't get five votes for his point of view, he tried to write the dissent as if the majority was largely agreeing with him, and they had some minor difference of opinion which would wash out on some later occasion.
I think the one thing that remains unclear, and that is, how long lasting the Brennan legacy or the Brennan approach is. As has been said, he really is not a texturalist. He's not somebody bound by the words of the Constitution. He's somebody bound by what were his conception of the principles of them. Well, when he retired those principles went with him, and we've already seen examples in this court term, in relatively recent court terms, where his opinions are now being overturned. For example--
JIM LEHRER: Are they easy to overturn because they're not texturally bound?
DOUGLAS KMIEC: Well, I think they are easier to overturn because unless you were inside his head and shared his conception of what human freedom and human dignity was, someone else would have an entirely different view. And it's somewhat ironic that Justice Brennan was always strongest with regard to free expression. And really the basis of the dispute between Justice Brennan and say Justice Scalia was where that expression was supposed to play out. For Brennan it was supposed to play out in terms of the use of government power as a positive grant of individual liberty, whereas for Justice Scalia and perhaps Chief Justice Rehnquist, it plays out by maintaining the boundaries of government power, so that individuals outside of the government can make their own way.
JIM LEHRER: Mr. Rosenkranz, how do you feel about whether or not some of these Brennan opinions, these Brennan decisions are going to have a lasting--are they going to live?
JOSHUA ROSENKRANZ: I think they are. And there's very good evidence of that. Let's look at the opinions that have already been cited, Baker vs. Carr, one person, one vote; New York Times vs. Sullivan, about the--the protection against the libel suits and slander suits. One of the major ones that hasn't been mentioned, Goldberg vs. Kelly, which says the government cannot cut off a lifeline of a poor person on welfare without process, without notice, without a fair hearing. All of those are the critical mass of the Brennan legacy, and they have not been moved one wit, not through the Rehnquist years, not through the Burger years, after Chief Justice Warren. So they're being frayed at the edges, but the fundamental core of the Brennan legacy has not been touched.
DOUGLAS KMIEC: Well, of course, if I might interrupt, Justice Brennan did argue quite strongly for an expansive concept of congressional power under Section 5 of the 14th Amendment, and that took a rather substantial hit in this past term when the court reminded the Congress that it's really the court; that issues constitutional interpretations, and by the text of the Constitution, and that the Congress really can't be as aggressive as activist, as creative as Justice Brennan wanted them to be in Katzenbaugh vs. Morgan.
JIM LEHRER: Right.
JOSHUA ROSENKRANZ: As I said, at the margins when we talk about habeas corpus or about federalism or about certain criminal justice opinions, now the Brennan legacy, maybe embattled somewhat, it may be frayed, but what all of us have spoken about as the critical mass of the Brennan legacy has in many respects been expanded certainly through the Burger years.
JIM LEHRER: Quickly Stuart, before we go. Do you have a view of that, the lasting legacy?
STUART TAYLOR: Well, Justice Brennan said when he retired that he believed that the work of the court during his time would stand the test of time. That's a huge body of work that a lot of it can be nipped away, and his last opinion was overruled by the Supreme Court a couple of years ago, an affirmative action case, but there's this huge body of opinion left. Frankly, I think what I'll remember him for is less whether he was right or Rehnquist was right when they were arguing about this other thing, is that this was just a man who pursued with dedication, passion, and reason just a wonderful human spirit, his own vision to the public good, and I think people can respect that even if they he made some mistakes along the way.
JIM LEHRER: Thank you both. Thank you Stuart, thank you gentlemen, very much.