Appreciation Supreme Court's Brennan left rich
legacy
By ROBERT F.
DRINAN
History will one day recall that it was the Catholic son of poor
immigrants from Ireland who expanded the U.S. Constitution into a document that
extends to all people the full equality and dignity granted to them by Judaism
and Christianity. That son of Ireland, Justice William Joseph Brennan, died
July 24 at the age of 91.
President Clinton, at Brennan's funeral in St. Matthew's Cathedral
in Washington (where President Kennedy's funeral Mass was held), expressed the
sentiments of millions when he called Brennan a "hero" and a "model for law and
service."
In Brennan's 34 years on the U.S. Supreme Court his profound
conviction of human equality and dignity manifested themselves in 1,360
opinions. Those opinions quite literally changed the face of America.
Brennan's decisions made it possible for the first time for
millions of African-Americans to vote and for the press to criticize government
officials with intense vigor.
As a professor of constitutional law for the past 15 years, I am
intimately familiar with the enormous implications of Brennan's expansionist
views. With his great friend Justice Thurgood Marshall (next to whom he is
buried at Arlington Cemetery) he created an America where true equality before
the law has a deeper meaning than at any time in U.S. history.
Some Catholics have been disappointed that Brennan extended his
deep reverence for the rights of women to the position that they have a right
to terminate a pregnancy at least in the first trimester. Some also regret that
he did not concur that church-related schools of less than collegiate rank
deserve some governmental assistance for their secular objectives. But
Catholics generally praised Brennan for his unrelenting war against the death
penalty and his persistent efforts to expand the frontiers of religious
freedom.
Of the 109 high court justices in American history only eight have
been Catholic. It seems clear that Brennan will outshine them all. His vision
and his understanding of the words of the Constitution are more in tune with
the legacy and genius of the Catholic approach to law than were the views of
the Catholics who preceded him.
I was honored to know Justice Brennan for some 30 years. I was at
the wake of his first wife, Marjorie. I have been present at many events with
his second wife, Mary, his son, William, a distinguished attorney in New
Jersey, and his grandson, William, a graduate of Georgetown University Law
Center.
After he left the Supreme Court, Justice Brennan lectured at
Georgetown Law Center. He was charming, outgoing, thoughtful and wise. He made
it clear whenever he spoke or wrote that he believed in the sacredness of all
human rights as well as the duty of the law to clarify, protect and enlarge
those rights.
One of the last occasions on which I talked with him was the
funeral of an eight-year-old boy. After the Mass, Bill Brennan and I literally
cried together.
Many contemporary commentators on the Supreme Court complain that
the justices have indulged in judicial activism and usurped the role of
Congress. The debate on that complicated topic will go on and on. But what is
often overlooked is that the Constitution is a living document and consequently
should grow and develop. It should adapt to new situations.
This was how Justice Brennan viewed the Constitution. It is a
document of 5,200 words written over 200 years ago. The essential role of the
Supreme Court, Brennan felt, was to rise above the passions of the moment and
issue opinions that almost inevitably will be unpopular with a part of the
population.
When we think of Irish Catholics in public life we usually call to
mind mayors, local officials and, yes, ward bosses. Brennan shattered all those
images. He was an intellectual, a visionary, a prophet. He believed, like the
author of the Code of Hammurabi, that the role of law is to protect the
powerless from the powerful. His memory will be forever held in
benediction.
Jesuit Fr. Robert Drinan is a professor at Georgetown
University Law Center.
National Catholic Reporter, August 15,
1997
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