Late Edition: A Legacy of Judicial Fiat and Selective Compassion

The recent death of Supreme Court Justice William J. Brennan, Jr. was attended with much ceremony, including the equivalent of a state funeral at St. Matthew’s Cathedral in Washington and a eulogy delivered by the President of the United States. The warm remembrances of family, friends, and colleagues were echoed in heroic encomia by professors and editorial writers, who routinely employed phrases like “towering figure” and “powerful defining force” to describe Brennan and his achievements. Such praise and honor are customary upon the death of great public figures, but whether Justice Brennan’s notably long and influential 34-year tenure on the Court deserves to be celebrated in this manner is another question altogether.

To be sure, no such doubt afflicts the law schools, who study and parse his major opinions with the kind of reverence once reserved by divinity students for the sayings of Holy Writ. This adulation, however, may have less to do with Brennan’s personal charm and legal abilities, which were considerable, than with his willingness to use judicial power to effectuate social policies favored by the professoriate. At his hands, the Constitution became a thing of almost infinite plasticity, and judicial review an open-ended invitation for judges to rewrite its provisions. For Brennan, as for colleagues who fell under his sway, the intent of the Framers was at best an historical artifact, and not a particularly compelling one at that. The “real” meaning of constitutional or statutory texts was not to be found in history, precedent, or customary usage, but rather in the constantly evolving needs of society as ascertained by the Supreme Court.

Thus, despite clear language in the Constitution to the contrary, Brennan felt no compunction about declaring capital punishment to be unconstitutional. Nor was he hesitant to recast the Civil Rights Act of 1964 from a charter of color-blind equality into a device justifying racial preferences. He powerfully supported the banishment of religion from the public square, and helped to erect almost insuperable barriers to the prosecution of pornography. He contributed mightily to the effort by which criminal trials were converted from an inquiry into the guilt or innocence of the accused into a detailed examination of the propriety of police behavior. And he provided much of the intellectual cover for the invention of the so-called right to privacy.

Justice Brennan justified this judicial engineering in the name of “human dignity,” but there is no end of mischief when judges feel free to use so abstract and protean a concept to override the deliberate sense of the people as embodied in the Constitution and duly enacted laws. For one thing, judges lack any special insight into the meaning of human dignity not vouchsafed to the rest of us, and for another, the Constitution is itself the most powerful monument to human dignity ever contrived in the history of lawmaking. Under its aegis liberty, equality, and prosperity have thrived here as in no other place. Our frame of government is sufficient unto virtually all tasks of human governance, and where it is not, it is open to amendment by the people. What the Constitution emphatically does not contemplate is that five justices of the Supreme Court should be able to revise its meaning by the invocation of an ever-changing standard of “human dignity.”

Moreover, isn’t it curious that the enhancement of human dignity in Brennan’s case invariably coincided with the policy prescriptions of the liberal intelligentsia? He issued jeremiads against capital punishment, for example, but had little to say about the human dignity of murder victims and their loved ones. He waxed eloquent about freedom of expression under the First Amendment, but the debasement of pornography never roused his tongue. And what happened to the lexicon of human dignity when it came to the question of abortion? Brennan voted with the majority in Roe v. Wade and lent the force of his eloquence to subsequent pro-abortion decisions without being at all troubled, apparently, about the indignity of mothers killing their babies. This man who could express passionate outrage against death sentences for convicted murderers nevertheless bent the law to permit the slaughter of innocent children. Whatever else one may think of human dignity as an overarching standard for judicial review, ideological opportunism seems to be its most compelling feature.

It is not for us, God knows, to judge the state of Justice Brennan’s soul, but why his kind of jurisprudence should be celebrated—least of all by his fellow Catholics—is beyond comprehension. Requiescat in pace, indeed, but let us pray also that the nation may soon recover from the effects of his legal handiwork.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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