William Brennan and the Creation of a Right to Abortion

No matter how heavy the theorizing may get, the project of interpreting what is known as the “living” Constitution is nothing more than the dishonest use of the law to reach ideologically pleasing results. This is one of the salient lessons of a new biography of Justice William Brennan, Jr., Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel. This book, though not without flaws, provides a balanced and lucid portrait of this masterly behind-the-scenes law-bender whose influence is, alas, alive and well on the current Court.

This biography confirms the most essential point about the internal workings of the Warren Court. Although the Court was nominally under the leadership of Chief Justice Earl Warren, the revolutionary jurisprudence that emanated in such profusion from it was orchestrated by Brennan. Though not a profound thinker, Brennan knew exactly where he wanted the Court to go. He used his considerable charm and shrewd capacity for self-effacement to form the majorities that transformed judicial review into the most potent instrument of liberal social engineering in American government.

Brennan’s interpretive approach was to consider the Constitution a “living” document that should be construed with current, as opposed to original, meaning. When the Constitution lives, judicial discretion is maximized. In one area of law after another, Brennan used this virtually boundless discretion to make his extremely left-wing policy preferences those of the nation—not all at once but carefully, incrementally. It was a revolution in slow motion. Brennan cared very little for the legal reasoning required in a case: whatever his clerks could use to justify the result he wanted and keep a majority together sufficed for him.

Abortion is the classic example of this process. The abortion license established in Roe v. Wade in 1973 was of course made possible by the right to privacy invented by Justice William Douglas in the notorious Griswold v. Connecticut in 1965. As Stern and Wermiel write: “There was no better example of the silent hand of Brennan shaping an opinion during this period than the case of Griswold v. Connecticut, a 1965 decision on contraception that laid the foundation for the constitutional right to privacy.” Stern and Wermiel continue:

Brennan did not create the notion of finding a right to privacy implicit in provisions of the Bill of Rights. The intellectual parentage belongs, perhaps, to Douglas for his dissenting opinion in Poe v. Ullman, or perhaps to the briefs filed in Poe by [counsel]. But the always pragmatic Brennan perceived that expanding the legal concept of freedom of association to include marital association [the initial view of Douglas] might undermine the strength of that constitutional right. He understood as well that the idea of association would not provide the strongest foundation for a right to personal privacy. With this ability to see the bigger picture, he successfully shifted the focus of the Court’s reasoning by persuading Douglas to take a different approach.

The “different approach” allowed Brennan subsequently to use Griswold to expand the right to privacy well beyond the sanctity of the marital bedroom emphasized in that case to include other rights, particularly abortion. In the 1972 Eisenstadt v. Baird, Brennan wrote an opinion for the Court that constructed the decisional bridge from Griswold to Roe: “After mulling a narrow decision,” note Stern and Wermiel, “he opted to use the case, Eisenstadt v. Baird, as a vehicle for extending to unmarried people the right of privacy he had helped Douglas propound in Griswold for married couples.” As Brennan wrote in a memorandum to Douglas at the time: “Incidentally, Eisenstadt in its discussion of Griswold is helpful in addressing the abortion question.”

Just as Brennan adroitly worked on Douglas in Griswold to create a right to privacy, he manipulated the timid Justice Harry Blackmun in Roe to create an abortion-on-demand regime. Blackmun’s name will forever be associated with Roe, but Brennan’s role in that case was central. As Stern and Wermiel comment: “Brennan felt a strong enough sense of ownership in the Roe and Doe opinions that his clerks included them in the bound volume of his opinions for the term Brennan maintained for his own use. The accompanying note explained that the opinions ‘were substantially revised in response to suggestions made by Justice Brennan.’”

One major area where Brennan failed in imposing his personal view was in his embarrassing crusade to have the death penalty declared unconstitutional. Although capital punishment is explicitly and unambiguously sanctioned by constitutional text and history, Brennan announced that its use in all cases violated the eighth amendment’s prohibition on cruel and unusual punishments because it offended what he called “human dignity,” a conveniently amorphous concept invoked by him when constitutional text and history stood in his way.

But he never went after the death penalty with the ideological wiliness he used in the case of abortion. That is a campaign that his successors have embraced. The revolution-in-increments method that Brennan used so effectively on a host of issues has been employed with great success by the current Court in its assault on capital punishment. In Atkins v. Virginia (2002), for example, the Court ruled the death penalty unconstitutional for a criminal who is mentally retarded. In Roper v. Simmons (2005), capital punishment for juveniles was declared beyond the constitutional pale. Most recently, in Kennedy v. Louisiana (2008), the death penalty was determined to be an unconstitutional punishment for the bestial crime of child rape.

These decisions have nothing to do with the eighth amendment. In his astute dissent in Atkins, Justice Antonin Scalia stated what is manifestly true with respect to all these decisions: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” The Court now routinely invokes the elastic Brennanite standard of “human dignity” along with a reliance on the equally Rorschach-like authority of European law to reject capital punishment in an ever-expanding category of cases. Eventually, of course, capital punishment will be so restricted as to be de facto abolished. Whatever else that result may be, it will not be what any reasonable observer would consider constitutional law.

Scalia has correctly remarked that Brennan was “probably the most influential justice of the century.”  And his vast influence has been a bane to our constitutional order. In case after case, with no tenable basis in constitutional text or history, Brennan supplanted the policy choices of elected representatives with his own views. Every contentious policy issue that is decided by the Court’s current wing of living constitutionalists (Justices Breyer, Ginsburg, Sotomayor, Kagan, and, frequently, Kennedy) reflects Brennan’s enduring influence. The subtitle of Stern and Wermiel’s biography identifying Brennan as a “liberal champion” is entirely apposite: he was a jurist committed not to the rule of law but to political ideology—a corruption of the judicial branch that continues to afflict us.