Book Report: Justice Brennan and Education

By Mark Walsh — October 01, 2010 3 min read
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A long-awaited biography of the late U.S. Supreme Court Justice William J. Brennan Jr., being released Oct. 4, contains some interesting anecdotes about key education cases Brennan was involved in during his 34 years on the court.

Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt) was written by Seth Stern and Stephen Wermiel. Wermiel was The Wall Street Journal‘s Supreme Court correspondent when Brennan in 1986 agreed to start meeting him for a series of biographical interviews. Wermiel would arrive at Brennan’s chambers at 7:30 a.m. on many weekdays to interview the justice or sift through his case files and other records.

Brennan, appointed by President Dwight D. Eisenhower in 1956, retired after the 1989-90 term of the court and died in 1997. Wermiel, who now teaches law at American University in Washington, worked on the biography but apparently let it languish after Brennan’s death. Co-author Seth Stern, the Supreme Court reporter for Congressional Quarterly, got involved in 2006, conducting additional interviews and helping Wermiel organize his vast notes and complete the biography.

** It was relatively early in Justice Brennan’s tenure when he was tapped in 1958 by Chief Justice Earl Warren to write the court’s unanimous, joint opinion in Cooper v. Aaron, which reaffirmed the court’s commitment to its decision in Brown v. Board of Education of Topeka and held that the governor and legislature of Arkansas were bound by federal court orders to desegregate the Little Rock schools.

Brennan worked delicately to craft an opinion that would retain the unanimity of the Brown decision. The book recounts that Brennan was on the front porch of his home in Washington’s Georgetown section working on his opinion in the case in September 1958 when a neighbor who was a TV journalist came by to strike up a conversation. The journalist, Richard Harkness, had just returned from a reporting swing through the Deep South and remarked to Brennan that the word “integration” had riled many white Southerners, provoking fears of interracial sex and marriage. The word “desegregation” didn’t bother them as much, Harkness told the justice.

Brennan took heed of his neighbor’s observations, and he used the term “desegregation” in his Cooper opinion.

** After the American public’s harsh reaction to the Supreme Court’s 1962 decision in Engel v. Vitale, striking down a state-approved prayer for use in public schools, Justice Brennan, as the court’s lone Roman Catholic, felt the need to explain his views in the next school prayer case, which came along in 1963 in Abington School District v. Schempp.

Brennan wrote a 70-page concurrence to the Abington decision, which with a companion case struck down compulsory Bible reading in Pennsylvania and Maryland public schools, and he refused to let any other justices sign on to the concurrence, wanting it to be his alone.

“Brennan traced the history of school prayer back to the English colonies in the 17th Century and ... he took pains to try to prove that the Court had firmly grounded its conclusion in both law and tradition,” the authors write. “Here, Brennan sought specifically to explain to a Catholic audience what justified his breaking with what he viewed as the Church’s position” in support of official public school prayer, the book says.

** In 1982, as the court considered a case from Texas on whether the children of illegal immigrants had a 14th Amendment equal-protection right to receive a public education, Brennan told his clerks that then-Associate Justice William H. Rehnquist referred to the children at the center of the case as “wetbacks” during the justices’ private deliberations, the book says. Rehnquist defended the term as one still in wide use in the American West, prompting an angry response from Justice Thurgood Marshall, who told Rehnquist that under that theory Marshall used to be known as a “nigger.”

Brennan wrote the opinion for the court in Plyler v. Doe, which upheld the immigrant children’s right to a public education. The book says Brennan had to restrain his views about treating educational rights as deserving of heightened constitutional protection to gain the necessary fifth vote of Justice Lewis F. Powell Jr. in the case.

The book has other education episodes, and many anecdotes of interest, including a discussion about why Brennan, a champion of treating sex discrimination with heightened judicial scrutiny, long resisted hiring female law clerks. Eventually, though, he gave in.

A version of this news article first appeared in The School Law Blog.