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AFTERWORD A Justice for All BY BRETT CAMPBELL N MONDAY, October 1st, the United States Supreme Court begins its first term in over three decades without one of the most influential Justices in its history. William Brennan’s resignation this past July triggered a brief burst of accolades in the national press, but it was quickly overshadowed, first by Oliver North’s latest escape , from justice \(which dent Bush’s snap nomination of David Souter and the debate over the future of abortion rights. As the Court’s new term opens, it would be a dereliction of duty for a publication such as this one to let pass without comment the departure from the public stage of the most important progressive since Franklin Roosevelt. Let us take a last look at the standard of justice set by the man David Souter is to replace. The senior Supreme Court Justice’s exit marked the end of a career that changed America more than perhaps any other except the great John Marshall himself. Even the National Review, which opposed his judicial philosophy down the line, called Brennan the pre-eminent public figure in America during his tenure. “One of the most fearlessly principled guardians of the American Constitution that it has ever had, and ever will have,” said much to the nation’s surprise the man Whom President Bush named to take Brennan’s place \(and, perhaps, reverse his sheer brilliance of William Douglas, or the rhetorical gift of Oliver Wendell Holmes, William Brennan’s legacy may overshadow them both. In his 34 years on the high tribunal, Brennan left his mark on most of the great jurisprudential issues of his day: affirmative action, rights of criminal defendants, equal protection doctrine, protection of women’s rights. Perhaps his greatest achievements were realized in advancing freedom of expression and opening the American justice system to groups which had been too long excluded from its reach. In the First Amendment area, Brennan’s 1964 opinion in New York Times v. Sullivan is justifiably considered one of the most important Supreme Court cases in history. The case held that libel suits against public figures such as politicians would have to meet a higher, “actual malice” standard to win. The importance of that holding is enormous. Every time you pick up a newspaper or magazine \(especially a publication like 30 SEPTEMBER 28, 1990 Brennan’s opinion, for it permits journalists to do their jobs without unjustified fear of a libel judgment. And that, in turn, means that government must operate under the light of public scrutiny. \(Brennan helped shield the broadcast industry from government interference in 1984’s FCC v. League of Women Votei -It’s as if the Sullivan line of cases extended an invisible aura of Constitutional protection to the press, allowing it to fulfill its function of holding the government account GAIL WOODS able. And they institutionalized Brennan’s cherished principle that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” The effect on journalism, on government, on AmeriOan life has been profoundly positive. Along with advancing the cause of liberty, Brennan did as much as any man to promote justice for all. In 1962’s Baker v. Carr the court adopted the one-person, one-vote principle, a controversial move at the time, and one that has dramatically transformed state and local governing bodies perhaps most of all, the one that meets in the pink granite building on Austin’s Congress Avenue. Imagine what this country would look like if minorities had not there achieved the ability to gain election to Congress and the state legislatures. Even the admittedly inadequate efforts to make equality a reality for all Americans wouldn’t have been achieved without the political clout that decision gave Hispanic and African Americans. If nothing else, it made it impossible for the white majority to ignore its brothers’ cries for jus tice. Justice Brennan also helped extend greater protection to previously disempowered groups such as women \(Frontiero v. and aliens Brennan also helped ignite a due-process revolution that gave meaning to the noble sentiments of the Fourteenth Amendment, and played a major role in extending the rights that most of us consider essential to American life to state courts and governments. In 1964’s Bag gett v. Bullitt and 1967’s Keyishian v. Board of Regents, and others, Brennan found in the Constitution a barrier against government bullying tactics such as loyalty oaths for public employees. He permitted lawsuits against cities that violate citizens’ civil rights, established now-routine procedural protections for recipients of government entitlements, and fortified the wall of separation between church and state via opinions in important school-prayer and creation-pseudoscience cases. He helped restrain the state’s awesome power over the individual. More recently, the genial son of Irish immigrants took the opposite tack: using state constitutions to remedy the deficiencies of the federal document. Once he realized that the federal court system was being stacked with the conservative appointees of Republican presidents, Brennan wrote a seminal law review article encouraging public-spirited attorneys to employ the sometimes-greaterprotections of individual liberties found in state constitutions. Texas’s own Edgewood v Kirby school finance case is among the latest examples of lawyers and litigants following Brennan’s advice. Even during the 1980s, despite the death of his wife of 40 years and the ascendance on the bench of a conservative majority inhospitable to Brennan’s philosophy, he managed a resurgence after a new marriage and, paradoxically, the elevation of arch-conservative William Rehnquist to Chief Justice. On the Court, if the chief is in the majority on a decision, he assigns the writing of the opinion to whomever he wishes. If he is not in the majority, however, the privilege of assignment falls to the senior justice in the majority and in cases where there was a liberal majority, Brennan was usually the senior justice. To keep Brennan from writing sweeping, precedent-blazing opinions, the conservative former Chief Justice, Warren Burger, would often switch his vote to the liberal side, in order to assign the opinion to a justice, often himself, who could then write