I am honored to be asked to write a tribute to Justice William J.
Brennan, Jr. for the Nova Law Review. One of the most difficult aspects
about a personal encounter with this most warm human being is
the realization that we are in the presence of one of the great figures of
the twentieth century

O\u27Hern, Justice Daniel J.

English

NSU Works

Nova Law ReviewVolume 15, Issue 1 1991 Article 2Tribute to Justice William J. Brennan, Jr.Justice Daniel J. O’Hern∗∗Copyright c©1991 by the authors. Nova Law Review is produced by The Berkeley ElectronicPress (bepress). https://nsuworks.nova.edu/nlrTribute to Justice William J. Brennan, Jr.Justice Daniel J. O’HernAbstractI am honored to be asked to write a tribute to Justice William J.Brennan, Jr. for the Nova Law Review. One of the most difficult aspectsabout a personal encounter with this most warm human being isthe realization that we are in the presence of one of the great figures ofthe twentieth century.KEYWORDS: Tribute, William, JusticeTribute to Justice William J. Brennan, Jr.Justice Daniel J. O'Hern*I am honored to be asked to write a tribute to Justice William J.Brennan, Jr. for the Nova Law Review. One of the most difficult as-pects about a personal encounter with this most warm human being isthe realization that we are in the presence of one of the great figures ofthe twentieth century.Should you go to the United States Supreme Court Building inWashington, D.C. you will find a small museum in the basement with amajestic statute of John Marshall. And in the hallway upstairs are thebusts of the Chief Justices who have served the Court over its years.Those somber faces evoke our customary idea of great jurists. JusticeBrennan eludes this stereotype. His charming Irish wit and engagingwarmth have never seemed to be attributes that could be carved intomarble.Yet Justice Brennan was the Senior Associate Justice of theUnited States Supreme Court since the retirement of William 0.Douglas in 1975. Appointed by President Eisenhower in 1956, JusticeBrennan served on the Court longer than all but a handful of Justices.Marshall and Story sat on the Court some thirty-four years. JusticeBrennan was in his thirty-third year when he announced his retirement.Although the era of greatest change in that span is known as thatof the "Warren Court," Justice Brennan often led the way with hisopinions on issues critical to the direction of the Court. Chief JusticeEarl Warren's biographer has recognized Justice Brennan as the ChiefJustice's most capable lieutenant and the one to whom "the Chief Jus-tice was to assign the opinions in some of the most important casesdecided by the Court." This period could perhaps be better called thatof "the Brennan Court."Many of that Court's decisions provoked strong criticism and con-troversy when they were handed down. Yet the words "Miranda warn-ing" are easily understood and casually accepted by television viewerstoday who cannot recall the controversy evoked by the Court's decision* Associate Justice of The Supreme Court of New Jersey, 1981 - present; J.D.,Harvard University, 1957. Justice O'Hern clerked for Justice Brennan during the1957-58 Term.1O'Hern: Tribute to Justice William J. Brennan, Jr.Published by NSUWorks, 1991Nova Law Reviewin Miranda v. Arizona' requiring police to inform a suspect of the rightto remain silent and to have the assistance of counsel. It is hard for usto recall today that decisions such as Gideon v. Wainwright,2 mandat-ing counsel for the indigent in criminal cases, or Mapp v. Ohio,3 pro-tecting citizens from warrantless searches, came in the aftermath ofone of the most politically repressive periods in American history. Art-ists, writers, public officials, could then be blacklisted, essentiallybarred from society, if their views did not conform to the prevalentparty line. So great today is our self-confidence as a nation in the rightof each of our citizens to speak and write freely that even the mostrepulsive speech, even the burning of a flag, is constitutionallyprotected.I do not think that I exaggerate when I suggest that Justice Bren-nan is one of the most influential persons of the twentieth century in orout of the law. His unrelenting respect for human dignity and individ-ual rights in the face of bureaucratic forces of government has carriedthe day in our country. By one of those ironic turns of fate, those fromthe right who have most denounced his views may be reaping the great-est benefits of Justice Brennan's respect for freedom and individualrights. I say this because the yearnings for self-government that wehave seen in Russia, in Poland, in China, in Eastern Europe - indeed,throughout the world - express a burning desire for the freedom thatwe often take for granted in our society, but which has been so care-fully preserved and nurtured by Justice Brennan.Like many Americans, I accepted, with insufficient reflection, Jus-tice Brennan's contributions to the life of the law, but I have had thegood fortune in recent years to be in attendance at various ceremoniesin his honor and have seen the respect, bordering on awe, in which he isheld by law students, lawyers, and judges, even by those who probablywould have never shared his opinions if they had been in the same posi-tion of power. These experiences revealed to me the shining light thatJustice Brennan has upheld for all in shaping many of the freedomswhich we now enjoy. And every time I visit with him I learn somethingmore. I had occasion recently to attend a lecture on his contributions tothe law (will you believe it?) of land-use planning. His overarchingprinciple of decision - that the Constitution protects people againsttheir government - means that government may no more invade the1. 384 U.S. 436 (1966).2. 372 U.S. 335 (1963).3. 367 U.S. 643 (1961).[Vol. 152Nova Law Review, Vol. 15, Iss. 1 [1991], Art. 2https://nsuworks.nova.edu/nlr/vol15/iss1/2O'Hernproperty rights of citizens than it may invade their personal rights.And, finally, in the field of international human rights, which isthe subject of his 1987 speech at the Columbia Law School Bicenten-nial, he explains how the Jeffersonian and Madisonian ideals enshrinedin our Constitution and Bill of Rights provide a charter for freedomthroughout the world. How paradoxical it must seem to the conserva-tive right, which has denounced him so often, that these ideals so longnurtured by Justice Brennan should be the wellspring of freedom forleaders throughout the globe. Did not Vaclav Havel, the poet, play-wright, and political leader of Czechoslovakia, express in his speech tothe United States Congress that world-wide yearning for freedomunder law that Justice Brennan has come to symbolize? Speaking ofour constitutional documents before the United States Congress hesaid, "They inspire us all. They inspire us despite the fact that they areover two hundred years old. They inspire us to be citizens."" Did notNelson Mandela, the long-imprisoned leader of the South African free-dom movement, express the same respect for our constitutional ideals?He said:We fight for and visualize a future in which all shall, withoutregard to race, color, creed or sex, have the right to vote and to bevoted into all elective organs of state. We are engaged in struggleto ensure that the rights of every individual are guaranteed andprotected, through a democratic constitution, the rule of law, anentrenched bill of rights, which should be enforced by an indepen-dent judiciary, as well as a multi-party political system.5Is not the preservation of the Bill of Rights by an independentjudiciary the enduring legacy of Justice Brennan's life on the Court?This was the example that he gave.In Justice Brennan's words to us, published here today for all toread, he exhorts us that "if we are to continue to be an example to thenations of the world, it will be because of our ceaseless pursuit of theconstitutional ideal of human dignity."Leaders yet to be born throughout the world will be nurtured bythe ideals of the American Constitution if we but follow the course thatJustice Brennan has charted for us.4. 136 CONG. REc. S1356 (daily ed. Feb. 21, 1990).5. 136 CONG. REc. H4136 (daily ed. June 26, 1990).1991]3O'Hern: Tribute to Justice William J. Brennan, Jr.Published by NSUWorks, 1991

Tribute to Justice William J. Brennan, Jr.

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Tribute to Justice William J. Brennan, Jr.

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