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Seven Justices, On Camera

By Patricia Brennan
Washington Post Staff Writer
Sunday, October 6, 1996; Page Y06

For 34 years on the U.S. Supreme Court, Justice William Brennan was the playmaker, the consensus-builder, forming coalitions of five colleagues and writing decisions that would clarify the law and, sometimes, change American society.

As his colleague Ruth Bader Ginsburg explains, "One of his major concerns was to take the Preamble to the Constitution -- that says, `We, the People . . .' -- and make that `we' an ever-larger group. His idea was to increase the `people' who would participate in our democracy."

Brennan also believed that the meaning of the Constitution is to be found in the current day, not in the intent of its 18th-century creators, as his colleague Antonin Scalia believes.

Among his 1,200 opinions were about four dozen considered landmarks, including those in the areas of civil rights (Cooper v. Aaron and Green v. County School Board), women's rights (Frontiero v. Richardson), freedom of the press (New York Times Co. v. Sullivan, a libel case) and reapportionment (Baker v. Carr). He helped Harry Blackmun write the majority opinion for Roe v. Wade, the 1973 abortion rights case, but Roe caused him much personal anguish, putting his religious beliefs in conflict with what he saw as the Constitution's guarantee of right of privacy.

In his last years, he often found himself writing the dissent, as he did when his colleagues decided that the death penalty does not constitute "cruel and unusual punishment," as he believes.

Monday at 10 -- the first Monday in October, when the Supreme Court begins its deliberations -- PBS's "Mr. Justice Brennan" pays tribute to a man who had a profound impact on American jurisprudence and, through it, American society.

Once confirmed, Supreme Court justices have their jobs for life. They pose for an annual group picture, but no cameras record their decision-making or courtroom arguments for any of those they choose to hear (about 100 of 6,000 sent to them each year).

After a bout with throat cancer in 1978 and a mild stroke in 1979, Brennan stepped down in 1990 and lives in retirement with his wife, Mary, in Georgetown. But it is a mark of his colleagues' affection and esteem that six of them -- Scalia, Ginsburg, Blackmun, John Paul Stevens, Stephen Breyer and David H. Souter, the Bush appointee who succeeded him -- took time to contribute their thoughts. And it is Scalia, who often disagreed with Brennan, who nevertheless concludes: "He is probably the most influential justice of the century."

(Not in the film: colleagues William H. Rehnquist and Sandra Day O'Connor. Clarence Thomas did not serve with him.)

"It's history to have seven," said producer Jerry Colbert. "They don't do a regular press interview, they don't do interviews on television, so for them to talk about issues and their opinions of major cases, talk about whether they agree or disagree about these big opinions, is history. And then there's also the personal aspect: You get to see them and get a feeling for the court."

Colbert's 10-year task to finish the film wasn't easy. "There's no historic record of footage in the courts," he said, "and [Brennan] really didn't care if this was done or not. He was not of the television age -- he was uncomfortable on camera."

Brennan's father, son of a teacher in County Roscommon, Ireland, immigrated in 1892, became a labor leader in New Jersey and encouraged his son to go into law. Young William Brennan Jr. enrolled at the University of Pennsylvania, then Harvard Law School. During World War II he served as an Army colonel, worked on the Manhattan Project and was awarded the Distinguished Service Cross. Afterward, back in legal life as associate justice of the New Jersey Supreme Court, he was known as a court reformer and sometimes delivered speeches for the court's conservative chief judge, who was ill.

President Eisenhower, looking for a Roman Catholic nominee, chose Brennan in 1956. (Later, he declared that appointment and that of Earl Warren, who became chief justice, his "two biggest mistakes" because both turned out to be more liberal than he had anticipated.)

"The timing was good," said Colbert, "right after [World War II], time to begin to deal with civil rights, women's rights. They had begun this before the war, but the war had slowed it up. Brennan had a great personality and he was very skilled, both legally and politically. So he became the guy who did the heavy lifting. They'd say, `We ought to do something about this. Bill, why don't you put it together?' "

Called the Playmaker (Ginsburg calls him "the persuader"), Brennan was good at building consensus and devising majority coalitions of five justices, often with Thurgood Marshall.

Even justices who disagreed with his viewpoints liked him. "He has people skills to a high degree," says Scalia. Often, Scalia recalled, when he found himself leaning toward Brennan's corner on an issue, Brennan would assign him the task of writing the majority opinion to keep him on board.

In 1973, Ginsburg argued Frontiero, a women's-rights case. Writing the decision, Brennan blamed "romantic paternalism which . . . put women not on a pedestal but in a cage." And it is Ginsburg, with a slight smile, who offers her own tribute: "First he was my hero," she says, "and now he's my colleague."

© 1996 The Washington Post

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