In the 1980s, which was to be the last decade of his 34 years on the Supreme Court, Justice William Brennan made a virtue of accessibility. He gave extensive interviews to reporters from a diversity of media -- National Public Radio, the New Yorker, the National Catholic Reporter -- and he took care to schedule in visits from classes of law students. He gave speeches at out-of-the-way colleges.
Maybe all this was only natural Irish gregariousness, but it endures as a reflection of his judicial philosophy of assuring constitutional protections to as many citizens as possible.
What Brennan did personally -- opened the doors of his offices in the hush-hush, on-high palace of laws that is the Supreme Court -- he did jurisprudentially: opened the courts to the previously rightless, which included women, children and blacks, and to the voiceless and the ignored, which included the most retarded inmate on death row.
Brennan's fight for access to the law, which endlessly annoyed his critics and had them muttering that he legislated from the bench, was grounded in constitutional fidelity. He wrote last year: "At the core of the process of government erected by the framers -- unwieldly, imperfect, wearisome, sometimes maddening -- lay a profound vision of justice, and that it was the duty of the Court to make that vision a reality for the least of men."
Brennan, a realist, understood that at one moment or another the least of us can be any of us. A broad spreading of the Constitution, he stated in dozens of ways in hundreds of cases, "is not merely a matter of compassion. It's a way of securing for every one of us guarantees which will protect us when we're prosecuted."
Such a view pitted Brennan against the one-eyed and the winking whose vision of justice included only neat and nice folk. George Bush speaks for them: "Liberal politicians ... seem to think that our hearts should reach out to every two-bit punk with a knife or gun who mugs a cleaning lady waiting for the subway."
Bush, no doubt a frequent subway rider as a way of relating to the masses, makes the common right-wing error of confusing liberals with libertines. Brennan's liberality, justice-based, meant liberating the Constitution from the late 18th century. The goal is to read the document "the only way that we can: as 20th-century Americans. The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems."
Brennan, whose long service on the Court meant that he shared power with about one-fifth of all the justices since 1789, developed a long-term feeling about the creation of justice. It hasn't happened yet, he told a law school audience in 1987 in language similar to Dietrich Bonhoeffer's phrase "cheap grace," because we see the price as too costly. "We as lawyers know the difference between formal and real equality, and therefore must lead the fight to close the gap between the two. Legislation to date has had little more than formal value because, quite frankly, it has cost us, the establishment, almost nothing. Real equality will cost us something.
"For example, are we willing to pay the substantially higher taxes necessary to make up for past legal deprivations and create a truly just and equitable society? Are we willing to let our sons bear the same risk in time of war as the sons of the poor and deprived? If not, all our good works in legal-assistance programs, public-defender offices and the like are meaningless tinkerings which do little more than salve our own consciences."
Nowhere was Brennan's own conscience more active than in defying state-sanctioned killing. His final Supreme Court decision was voting no last week to an execution in Richmond by the state of Virginia. With Brennan's departure, death rows, packed with a record 2,400 people, are now more likely to be the government's killing fields. Taking life, he said "is God's work, not man's."
To death mongerers that was sentimentality, to which Brennan answered: "The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity. ... The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded."
Brennan, whose prose style had the clarity and grace that marked the writing of his liberal brother in justice, William O. Douglas, still has many years to serve the country as a citizen. He showed us it's the highest calling in the land.