Rubin, Michael

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Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews4-1-1998Memorial Dedication to Justice William J. Brennan,Jr.Michael RubinThis Introduction is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and LoyolaLaw School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationMichael Rubin, Memorial Dedication to Justice William J. Brennan, Jr., 31 Loy. L.A. L. Rev. 753 (1998).Available at: https://digitalcommons.lmu.edu/llr/vol31/iss3/8Michael Rubin*The first time I ever saw Justice Brennan in person was in theFall of 1974, when I was a first-year law student at Georgetown Uni-versity Law Center. I lived on Capitol Hill, just two blocks from theCourt. I would often visit the Supreme Court on my way to or fromclass to observe oral argument and, toward the end of the Term, tolisten to the announcement of decisions.Many of the oral arguments I heard during that first year weresurely beyond my ability to follow. But I kept coming back, probablyattracted more by the spectacle of the Supreme Court than by anyhope of learning a bit of substantive law. Sitting in the back of thecourtroom that first year, I remember becoming increasingly excitedabout the possibilities that life might hold as a practicing attorney.When I began law school, my goal was to work for the Civil Aero-nautics Board. I had worked in the travel business after graduatingfrom college, and I thought that my background might help me findemployment with the industry's government regulators-who, ofcourse, became the victims of airline deregulation long before I wasready to enter the job market. I certainly had no expectation that sixyears later I would be back in the District of Columbia, living in myold law school apartment-while paying a much higher rent-spending my working days in an ongoing constitutional law tutorialwith one of the greatest Justices of this century.I had read several of the Warren Court decisions in college, andI must have known a little about Justice Brennan's reputation forgregariousness and charm. I recall, therefore, being somewhat sur-prised, sitting in the back of the courtroom during that first year oflaw school, at how serious and almost stern the Justice appeared atoral arguments.I am reminded today of those first impressions, because I hadsomewhat the same sense of the sterner side of Justice Brennan whenI read the text of his 1986 Loyola Commencement Speech. To myrecollection, that side of Justice Brennan was not often shown. In* A.B., 1973, Brandeis University; J.D., 1977, Georgetown University LawCenter; Partner, 1985-present, Altshuler, Berzon, Nussbaum, Berzon & Rubin.Mr. Rubin clerked for Justice Brennan during the Court's 1980-81 Term.754 LOYOLA OF LOS ANGELES LAW REVIEW [Vol.31:753other speeches I have read, and certainly in person, the liveliness ofthe Justice's personality and forcefulness of his argument were al-ways prominently featured. During roughly the same period thatJustice Brennan delivered the Loyola Commencement Address, forexample, he delivered well-publicized speeches at Georgetown Uni-versity and before the ABA2 to criticize the "original intent" doc-trine of constitutional construction. Those speeches were pure Bren-nan-forceful, passionate, and deadly in their aim.3 That is also theJustice Brennan that I best remember, particularly in the later yearsof the Burger Court when I clerked, when so many of his opinionswere on the dissenting side.The Loyola address strikes a different tone, however. Certainlythe substance of the speech accurately captured the essence of theJustice's thinking about the importance of a lawyer's commitment toissues of public policy. So too did the speech's familiar themes offreedom, equality, and individual rights echo the themes he soundedin hundreds of opinions throughout his long and distinguished career.But although I can hear the cadence of his voice in the text of thespeech, in my view its tone fails to convey how deeply he felt aboutthe issues he was discussing-and Justice Brennan was nothing if nota man of deep feeling.Toward the end of his Loyola address, the Justice said: "In thefinal analysis the obligation rests on the individual lawyer, whatevermay currently be his position within the profession, whether he is in alarge or small firm or is an individual practitioner, to devote himself,however it may be possible, to some project involving the public in-terest.,4 Maybe it was his choice of the word "obligation" that givesme pause. Perhaps Justice Brennan used that term because he grewup in an era when it was more common for people to make lifechoices based on "obligation" and to pursue careers in public service1. See Address by Justice William J. Brennan, Jr. at Georgetown University(Oct. 12, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTENCONSTITUTION 11, 14-15 (1986).2. See Justice William J. Brennan, Jr., Address to American Bar AssociationSection on Individual Rights and Responsibilities (Aug. 8, 1996) (transcript onfile with Loyola of Los Angeles Law Review).3. See, e.g., Linda Greenhouse, A Justice for All, N.Y. TIMES MAG., Jan. 4,1998, at 39 (noting that in a 1987 speech Justice Brennan characterized his major-ity opinion in Goldberg v. Kelly as a decision that could be seen "'as injectingpassion into a system whose abstract rationality had led it astray"').4. Justice William J. Brennan, Jr., Commencement Address Delivered toLoyola Law School Class of 1986, 31 LoY. L.A. L. REv. 725, 731 (1998)(emphasis added).TRIBUTE TO JUSTICE BRENNANout of a sense of duty rather than a more self-interested free choice.But I spend a lot of time each fall interviewing prospective associatesand summer clerks, and I cannot say that I have met many law stu-dents in recent years who appear to be motivated by a sense of duty,or obligation, in their career choices.Let me suggest that, despite the sternness of Justice Brennan'smessage, he fully understood the extraordinary personal satisfactionthat can result from pursuing the path of public service-because thatis the path that he, and countless of his clerks and others whom heinfluenced, have pursued.From discussions with the Justice about career choices and thelegal profession, I am sure he would have agreed that there are sev-eral reasons more compelling than a sense of obligation why an indi-vidual lawyer might choose to practice law in a manner that wouldenable him or her to "play [the] creative role in American social pro-gress" that Justice Brennan described in his speech.' Certainly thereare few fields that offer as much opportunity as public interest law foran individual seeking to have an impact on the social issues of theday. In these times, when lawyers at all stages of their careers arelooking to find more meaning in their lives, it seems self-evident thatchoosing to work on issues of public policy, whether in the public orprivate sector, is one way for an individual lawyer to have a broadimpact on issues that concern the community.As a state court judge and a United States Supreme Court Jus-tice, William J. Brennan, Jr., had an extraordinary impact on the is-sues of his day. That impact began to be felt before many of his lawclerks were born and will undoubtedly extend well into the next cen-tury. For a practicing attorney, however, the opportunities to havesuch an impact are more limited, at least in the context of a day-to-day legal practice. Yet by devoting oneself to a law practice thatgrapples with issues of public policy, on whichever side of the issuesthe individual lawyer feels most comfortable, it is possible both tohave a broad impact on issues that matter and to derive immensesatisfaction from the process. I am quite sure that the Justice wouldhave agreed that it can be enormously satisfying to work on behalf ofclients and causes that you believe are just-which many would say isthe ultimate goal of the public interest lawyer.For such a passionate man, it is surprising that Justice Brennanin his speech made the practice of public interest law sound almost5. Id. at 3.April 1998]756 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 31:753like eating spinach. I suppose there are some crusading public inter-est lawyers who would embrace the spinach analogy, characterizingthemselves as Popeye-like figures fighting the evil forces of Bluto inthe world. But for most, it is enough that the practice of public inter-est law provides not only a great intellectual challenge, but also anopportunity to become involved with the most important, interestingissues of the day, while attempting to make a positive difference in agreat many peoples' lives.The Justice well knew, and often commented, that all the careand analysis he put into his opinions would matter little unless hecould command a majority of the court. I remember, as undoubtedlymany of his other clerks do, how joyfully he would waggle his righthand with all five fingers extended and give a triumphant whoopupon receiving a fifth "join" memo on a draft opinion. At the sametime, I can also remember when the results of his analysis-whileperhaps equally sound, insightful, or thoughtful-amounted to nomore than "comments in a dissenting opinion."6Justice Brennan unquestionably placed great importance on ob-taining, and retaining, a majority-in short, winning. Yet I think theJustice would have agreed that his greatest overall job satisfactioncame from the simple act of devoting a career to working on casesand causes that he thought made a difference. Why was it that Jus-tice Brennan, well into his 80's, would be at his desk in the SupremeCourt building before 7:30 or 8:00 most mornings, even before manyof his clerks had arrived? Surely the answer has something to do withhow passionately he cared about the cases and opinions that he wasworking on and the ultimate importance of what he was doing.The Justice in his Loyola speech included a quotation from anearlier commencement address delivered by Harvard Law SchoolDean James Vorenberg, in which Dean Vorenberg stated: "There isno universal 'right' way to lead a life in the profession .... There aremany ways of working on the side of the angels. 7 Certainly the deanhad it right. As we all know from our own experiences, both privateand professional, reasonable and intelligent minds invariably differon all issues of public importance-whether affirmative action, the6. See United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 176 n.10(1981) ("The comments in the dissenting opinion about the proper cases forwhich to look for the correct statement of the equal protection rational-basisstandard, and about which cases limit earlier cases, are just that: comments in adissenting opinion.").7. See Brennan, supra note 4, at 1.TRIBUTE TO JUSTICE BRENNANright to die, or the death penalty. One reason why Justice Brennan inhis First Amendment cases placed so much emphasis on the impor-tance of ensuring equal access to the marketplace of ideas and to theprotection of free speech rights, I suppose, was to nurture those dif-ferences, and thus hopefully to improve the quality of public dis-course and decisionmaking throughout all levels of society.Justice Brennan had enormous respect for those who did notshare his views-and even married one of them, as anyone who hastalked politics with Mary Brennan would know! At the law clerks'morning coffees with the Justice and Mary Fowler, as she was knownthen, he urged us to speak our minds and put our best efforts into ouranalysis of the issues-not to parrot what we thought his positionmight be, but to challenge him and each other, and thoroughly dis-cuss all viewpoints. But however much he welcomed those discus-sions, once the Justice made up his mind, that was it. Once he hadweighed all the arguments and had decided what the Constitution re-quired or what Congress had meant in the statute under discussion,he was virtually unshakable, and he stated his analysis with all thepassion and eloquence at his command.To me, what the Justice left unstated in his 1986 commencementaddress is that the obligation every lawyer should feel is the obliga-tion of each lawyer to find his or her own way of working "on the sideof the angels"-not his, not mine, not anyone else's. If someone isfortunate enough to be able to practice law in that manner, that law-yer might well be able to bring some of the same passion to the prac-tice of law that Justice Brennan brought to the practice of judgingthroughout his long and fruitful career. And when that happens, thepractice of law can be the best job in the world-or really, the secondbest, because as many of my co-panelists would agree, the best jobwas the one we had during that special year when we were fortunateenough to clerk for Justice Brennan.April 1998]758 LOYOLA OF LOS ANGELES LAW REVIEW [Vol.31:753

Memorial Dedication to Justice William J. Brennan, Jr.

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Memorial Dedication to Justice William J. Brennan, Jr.

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