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Supreme Court's Brennan left rich legacy


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