Texas v. Johnson

About the Author

William Brennan, U.S. Supreme Court justice, was one of the architects of the constitutional revolution that radically changed American life in the second half of the twentieth century. As Chief Justice Earl Warren's right-hand man, Brennan was responsible for crafting majority opinions such as Baker v. Carr, which helped to establish the principle of “one person, one vote” and which Warren always referred to as the most important decision handed down during his momentous tenure on the Court. Brennan, whose politics placed him squarely at the Warren Court's center, was also responsible for crafting majorities for opinions such as the one he wrote in New York Times Co. v. Sullivan, which managed to greatly expand the First Amendment while avoiding his more liberal colleagues' wish to make criticism of public officials immune to libel suits. During the Warren years (1953–1969), Brennan was the justice least likely to dissent from the majority's views; but later, during the tenures of Chief Justices Warren Burger and William Rehnquist, he frequently played the role of passionate dissenter, most notably in death penalty cases. Nonetheless, as late as a year before he retired from an increasingly conservative Court, Brennan marshaled a majority in Texas v. Johnson and engineered an opinion that expanded the definition of protected speech. It is no accident that Brennan is remembered not only for the law he made but also for his skills as a coalition builder.

Born in Newark, New Jersey, on April 25, 1906, the son of Irish working-class parents, William Joseph Brennan, Jr., could be said to have inherited the social activism he later exhibited on the high bench. His father worked as coal stoker at a brewery, hard labor that prompted him to become, first, a leader of the local labor union and, later, a reformer as member of the Newark Board of Commissioners. William, Jr., shared many of his father's attitudes, but not—at least not overtly—his father's taste for politics. After graduating with an advanced business degree from the Wharton School at the University of Pennsylvania, Brennan attended Harvard Law School. He practiced law privately for only a short while before commencing a campaign to reform the New Jersey court system. Within a few years, he was sitting on the state supreme court bench, where, seemingly anticipating the role he would later play in connection to Earl Warren, Brennan became New Jersey Chief Justice Arthur Vanderbilt's closest associate.

Brennan arrived at the U.S. Supreme Court on October 16, 1956, appointed by President Dwight D. Eisenhower when Congress was in recess. When the Senate reconvened and voted on Brennan's appointment, only one voice was raised against him: that of Joseph McCarthy, who presumably objected not to Brennan's jurisprudence but to the latter's onetime comparison of McCarthy's Communist-hunting tactics with those employed at the Salem witch trials. Later, Eisenhower would come to regret his choice. Asked if he had made any mistakes as president, he responded, “Yes, two, and they are both sitting on the Supreme Court” (qtd. in Abraham, p. 246). Eisenhower grew to dislike Brennan's liberality on the Court almost as much as he disliked Warren's. And, indeed, Warren and Brennan worked together closely throughout Warren's tenure, meeting together privately to discuss strategies for bringing the other justices around to their view of current cases before each weekly judicial conference. Warren valued Brennan not only for his ability to parse and articulate a legal argument but also for his persuasiveness. Achieving unanimity—or, barring that, the clearest majority possible—was of the utmost importance to Warren, who sought to make his Court's precedents stick. Brennan was, in every sense, Warren's ambassador.

During the subsequent tenures of Chief Justices Burger and Rehnquist (respectively, 1969–1986 and 1986–2005), the politics of the Court shifted steadily rightward, and Brennan eventually lost both his leadership role and some of his optimism. Increasingly, he found himself in the minority, and whereas he had written few dissents during the Warren years, after 1969 the number rose steadily. Brennan's closest associate became Thurgood Marshall, one of the few other remaining members of the liberal voting bloc that had been responsible for so many of the Warren Court's momentous decisions. Brennan and Marshall frequently voted together—and they always voted together against imposing the death penalty, which both men believed to be inherently unconstitutional. In later years Brennan was, nonetheless, still an influential figure, drafting important opinions for the Court on gender discrimination and affirmative action, as well as First Amendment freedoms. He retired on July 20, 1990, having written 1,360 opinions, a number bested only by his fellow Warren Court liberal, William O. Douglas.