Remembering Justice Brennan
How will Justice William J. Brennan Jr. be remembered? This is a difficult question because it concerns his life as he lived it - in his time and context - as well as his words - in future times and unknown contexts. The temptation is tremendous, perhaps inescapable, to transform his reality into a different reality. Incredibly, both realities suit William Brennan.
Brennan is with his biographers, many yet unborn. To the extent possible, their task is to capture the man in his time - complexity, compromise, courage, and all. They also must reveal how his judicial message necessarily pointed beyond itself - beyond his meanings, times, and contexts. The man belongs to history, yet much of his message belongs to the future.
Above all, Brennan thought law was for the living. Nothing could be static or frozen in time. For better or worse - in free speech, reapportionment, privacy, affirmative action, or death-penalty cases - he sought to free Americans from the confines of their past and move them toward the possibilities of a more hopeful future. If the words of the Constitution are forever settled, he believed, then injustice is inevitable. This helps to explain Brennan's more than occasional willingness to experiment.
Brennan was a passionate defender of judicial independence. "I feel very strongly," he declared in a 1988 interview Peter Galie and I did with him, "that the independence of the judiciary is the most important thing about any judiciary." Such independence allowed for experimentation, which in turn made life possible, even better sometimes. This life-theme, the theme of his life, carries a mixed message. On the one hand, there is the past he lived, which must remain. On the other hand, it is the right of future generations to discard the past, or even to reinterpret it in ways today unimagined.
So how, then, do we remember William Brennan? The answer, of course, depends on who the we is.
For example, there is the we who shared the complex times and heroic experiences of the quest for racial and sexual equality, for criminal justice, for religious liberty, and for freedom of expression - turning points in a history of which Brennan was so vital a part. In remembering Brennan we recall the many challenges before the constitutional battles, as well as the glorious and occasionally disappointing times afterward. These are the memories of a lifetime, and they can never be relived or fully retold.
There are, as well, other things that must but cannot be remembered now, if only because they have yet to be disclosed. For example, just how much of this or that opinion for himself or for others did Brennan write? Or how influential or uninfluential was he when the urgencies of the moment demanded? All of these matters and others suggest that Brennan be remembered, as much as possible, as he lived in his world and in his time. Remember the man.
The other we is the we of the future, who will reclaim Brennan. His history and judicial words are theirs to do with as they will. Those majestic and not-so-majestic words - in everything from his 1964 landmark free-speech opinion to the per curiam (unsigned) opinion he is said to have written in a 1976 campaign-financing case - stand ready, with Brennan's blessing, to be recast, perhaps in ways he would not approve. Remember the duty to reinvent the meaning of words, including his words.
To grant Brennan's judicial philosophy is to grant the possibility that his life and work (including his monumental opinions) will be redefined. This is Brennan's greatness, and his great paradox, too.
* Ronald K. L. Collins is co-author of "The Death of Discourse" and the editor of Constitutional Government in America.