William J. Brennan - A Man of Principled Dissent and Persuasion

In 1985, near the close of his long career, United States Supreme Court Associate Justice William J. Brennan Jr. delivered the 1985 Mathew O. Tobriner Memorial Lecture at the University of California, Hastings College of the Law. 

In his lecture, “In Defense of Dissents,” Brennan asked his audience why a judge would assert him or herself against majority opinion through dissent. In one important sense, Brennan said, because a dissent shows up inaccuracies and inconsistencies in a majority argument. In this case, a dissent becomes a necessary corrective to a wrong course of action.

Additionally, a dissent serves to hold any court majority accountable for the basis—and the consequences—of its decisions. Brennan noted that even the strongest decision becomes better when thoroughly vetted and subjected to vigorous arguments against it. In this way, he said, judicial decision-making becomes a kind of “town meeting” in which the “marketplace of ideas” tests multiple potential courses of action against each other, with the best emerging from the contest. 

Then there is the argument that a meaningful dissent at the federal level will provide state courts with valuable precedents that can inform their interpretations of state constitutions in favor of the broadening of individual liberties. 

Brennan also noted that a principled dissent can become a powerful, even prophetic, means of moving public and judicial opinion toward increasing the standards of decency that characterize “a maturing society.” 

In this regard, he referenced Justice John Marshall Harlan’s historic dissent in Plessy v. Ferguson (1896). Harlan’s ringing words, Brennan said, tore apart the majority’s now-notorious decision in favor of segregated accommodations for African American citizens. Harlan, in proclaiming that “separate” is not “equal,” excoriated the devastating subtext of the majority’s views that only served to prop up the country’s unjust racial caste system. 

William J. Brennan himself became another such dissenter. During his career on the Supreme Court, he authored more than 1,200 opinions, with about an equal number of dissents and concurrences. He also became adept at influencing the inner politics of the Court and his colleagues—scholars can easily trace his thinking behind numerous historic decisions.

Through a series of his own eloquent, prophetic dissents—and in notable concurrences—Brennan did more to move forward the causes of individual liberty and personal freedom in the United States than perhaps any other American jurist of the 20th century. 

A lifelong pursuit of justice

Born in Newark, New Jersey, in 1906, Brennan was one of eight children of an Irish immigrant family. In 1931 he graduated from Harvard Law School, where he served as president of the school’s legal aid society, and took a job as a labor lawyer. He served in the US Army during World War II, handling legal matters for the ordnance division and attaining the rank of colonel. After the war, he accepted a position as a New Jersey Superior Court judge, then as a state Supreme Court judge. 

Although Brennan was a committed Democrat, Republican president Dwight D. Eisenhower appointed him to the US Supreme Court in 1956. During his confirmation hearings, only Senator Joseph McCarthy voted against him. 

By the time he retired in 1990, Brennan’s 34-year tenure on the Court had become one of its longest. When he died in 1997, public tributes poured in, describing his principled positions, his intellect, and his seemingly endless compassion for his fellow human beings. His opinions produced effects on public policy that endure to this day. 

Brennan was a lion-like defender of the First Amendment, and of the necessity of ensuring equality for all people, regardless of background or circumstances. He could always be counted on for stirring declarations in support of freedom of speech, freedom of conscience, freedom of expression, and the inherent human dignity of every individual. 

Brennan also earned a reputation as a strong supporter of judicial independence, and he believed in the impact that legal procedure has on the outcomes of cases involving individual rights and liberties. As an interpretivist, he believed that contemporary judges must regard the Constitution through the lens of contemporary problems, applying its basic principles broadly to remedy those problems. 

Dissents that expanded the concept of personal liberty

In notable dissents at the New Jersey state level, Brennan vigorously opposed prior restraint of free artistic expression in Adams Theatre Co. v. Kennan (1953). In State v. Tune (1953), he issued a strong dissent to the majority’s decision denying a murder defendant the right to view his confession. 

On the Supreme Court, his dissenting opinions in the 1963 cases Lopez v. United States and Ker v. California both hinged on his support for a right of privacy based on Fourth Amendment protections against illegal search and seizure. 

In FCC v. Pacifica Foundation (1978), Brennan dissented against a majority that upheld the right of the government to issue civil penalties to a radio station for broadcasting certain offensive words, regardless of whether they met the strict definition of obscenity. Brennan’s vehement dissent called out the majority for inconsistent application of First Amendment principles and said that adults who choose to listen to controversial programming had the right to do so without being forced to conform to the views of others in society.

Concurrences that bent society toward justice

Brennan’s persuasiveness led his colleagues to concur with him in notable cases such as Baker v. Carr (1962), which established the lasting progressive legacy of the principle of “one man, one vote,” and in Texas v. Johnson, a 1989 case that found that flag desecration is a constitutionally protected act of political speech.

In writing his majority opinion for one of the most far-reaching Supreme Court decisions in history, Brennan stated in New York Times Co. v. Sullivan (1964) that government officials have no standing to sue news media for libel or slander unless they can prove that a journalist acted with deliberate malice or out of reckless indifference to truth. Brennan wrote in support of “uninhibited, robust, and wide-open” discussion of issues affecting the public, noting that while such debate can become loud, vigorous, and unpleasant, it is essential to the public interest—and the survival of democracy—to support it. 

Brennan’s Supreme Court colleague Associate Justice Harry Blackmun once noted that Brennan had a “profound” influence on his fellow justices over the entire span of his career. “We are all better,” said Blackmun, for that influence.