William Joseph Brennan Jr. was born in Newark in 1906, the son of Irish immigrants, and rose from a New Jersey labor lawyer and state judge to become, in the estimate of many scholars, the most influential justice of the twentieth century. A Catholic Democrat named to the Court in 1956 by the Republican Eisenhower — a recess appointment made partly for electoral appeal — he served thirty-four years as the strategic and doctrinal engine of the Warren Court's liberalism and the leader of the opposition to the more conservative Courts that followed.
Brennan was the Court's master builder of majorities, famous for teaching clerks the 'Rule of Five' — with five votes you can do anything. He wrote landmark after landmark: New York Times v. Sullivan, which revolutionized libel law and gave breathing room to criticism of public officials with its 'actual malice' rule; Baker v. Carr, which opened legislative apportionment to the courts and launched 'one person, one vote'; and, near the end, Texas v. Johnson, protecting the burning of the American flag as symbolic speech. A believer in a living Constitution and in 'the dignity of the individual,' he opposed the death penalty in every case. He retired in 1990, his fingerprints on more of modern constitutional law than any contemporary's.
New York Times Co. v. Sullivan
1964Holding · A public official cannot recover for defamation without proving 'actual malice' — knowledge of falsity or reckless disregard for the truth.
Role · Brennan wrote for the Court.
Transformed American libel law and gave constitutional protection to robust, even erroneous, criticism of government — 'uninhibited, robust, and wide-open.'
Read the opinion →Baker v. Carr
1962Holding · The apportionment of legislative districts presents a justiciable question that federal courts may decide.
Role · Brennan wrote for the Court, over Frankfurter's (§78) dissent.
Opened the door to the reapportionment revolution and 'one person, one vote'; Warren (§88) called it the most important case of his tenure.
Read the opinion →Texas v. Johnson
1989Holding · Burning the American flag in political protest is expressive conduct protected by the First Amendment.
Role · Brennan wrote for the Court.
A powerful affirmation that government may not punish a symbol's desecration; it has withstood repeated efforts to overturn it by constitutional amendment.
Read the opinion →William Joseph Brennan Jr. is the liberal engine of the modern Court — the justice who, more than any other, translated the Warren Court's vision into durable doctrine and held a coalition together to do it. The son of Irish immigrants in Newark, a New Jersey judge given a recess appointment by Dwight Eisenhower in 1956 in a bid for Catholic and Democratic votes, he served thirty-four years and wrote nearly 1,300 opinions, becoming the great strategist and vote-counter of the liberal bloc — 'with five votes,' he told his clerks, 'you can do anything.' He wrote New York Times v. Sullivan, revolutionizing the law of libel and free press; Baker v. Carr, opening the door to 'one person, one vote'; and landmark opinions on due process, gender equality, and the death penalty. A champion of the 'living Constitution' against the rising originalism, he was, Eisenhower reportedly agreed, one of his two great mistakes. Seth Stern and Stephen Wermiel's authorized biography is the definitive life. Start there, read Sullivan and Baker, and hear Brennan's own case for a Constitution read anew by each generation.
The Bookshelf
The definitive biography, drawing on decades of interviews Wermiel conducted with Brennan himself and on the justice's private case histories. Stern and Wermiel give the full measure of the man and the strategist — the Newark boyhood, the New Jersey bench, the surprise appointment, and the thirty-four years in which Brennan built and held the coalitions behind the Warren Court's boldest work and defended its legacy through the Burger and Rehnquist years. Candid about his methods and his blind spots, it is the essential and revealing life. Houghton Mifflin Harcourt.
The first full biography, written before the papers opened — Eisler is good on Brennan the vote-counter and coalition-builder, the Irish-Catholic New Jersey judge who became the liberal engine of two Courts. Superseded in depth by Stern and Wermiel but a brisk narrative. Simon & Schuster.
A portrait organized around the quality that made Brennan effective — the warmth and patience with which he built majorities, 'with five votes you can do anything.' Birch Lane Press.
The leading book-length treatment of Brennan's constitutional and democratic theory — the Harvard theorist Frank Michelman on Brennan's vision of a 'living' Constitution read anew by each generation, and its answer to the charge of judicial overreach. Princeton University Press.
A short biographical study paired with generous selections from Brennan's major opinions — a convenient one-volume way to meet both the man and the work. Carroll & Graf.
A Brennan Center collection of essays by judges, scholars, and advocates assessing his influence across the whole span of constitutional law — the fullest measure of his reach, taken just after his retirement. W. W. Norton.
Brennan's credo, delivered as a 1985 address at Georgetown and the most influential judicial answer to the originalism then ascendant under Attorney General Edwin Meese. The Constitution, Brennan argued, must be read as 'a sublime oration on the dignity of man,' its great phrases interpreted by each generation 'as twentieth-century Americans' — not frozen at the framers' intent, which he called 'little more than arrogance cloaked as humility.' Short and eloquent, it is the essential statement of the living-Constitution philosophy and the frame for every Brennan opinion. Widely reprinted.
Brennan's most celebrated opinion, and the foundation of modern First Amendment protection for the press. Arising from a civil-rights advertisement in the Times, the case let Alabama officials use libel law to punish criticism and cripple the movement's Northern support. Brennan held that the Constitution requires a public official to prove 'actual malice' — knowing or reckless falsehood — to win a libel suit, out of a 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' It remade defamation law and shielded the press and its critics ever since. Free online, and essential.
The case Earl Warren (§88) called the most important of his tenure, and the opening of the reapportionment revolution. Holding that federal courts could hear challenges to malapportioned legislatures — that such claims were not 'political questions' beyond judicial reach — Brennan overcame Frankfurter's (§78) long insistence that the Court stay out of the 'political thicket,' and cleared the way for Reynolds v. Sims and 'one person, one vote.' A masterpiece of coalition-building as much as doctrine, it transformed representative democracy. Free online.
Brennan's quiet landmark. Writing for the Court, he held that a state may not cut off a person's welfare benefits without a hearing first — that statutory entitlements are a kind of 'new property' the Due Process Clause protects. The founding case of the procedural-due-process revolution, and a signature of Brennan's concern for the powerless. Free online.
The Reading Path
A researched route through the literature — in order.
- 1.Stern & Wermiel, Justice Brennan — for the strategist behind the Warren Court's revolution
- 2.New York Times v. Sullivan — for 'uninhibited, robust, and wide-open' — the free-press landmark
- 3.Baker v. Carr — for opening the reapportionment revolution
- 4.Contemporary Ratification — for the living-Constitution creed in his own words
- 5.Michelman, Brennan and Democracy — for the constitutional theory behind the votes
Where the Papers Are Kept
The William J. Brennan Jr. papers at the Library of Congress are enormous and unusually candid — including the case histories Brennan kept and shared with his biographer Stephen Wermiel — and are among the richest sources on the internal workings of the Court from the Warren through the Rehnquist years. A major modern archive. Visit →
Ideas for Further Research
- The rule of five. Brennan taught his clerks that 'with five votes you can do anything' — a candid credo of the Court as a place where outcomes are built, not merely found. Study his coalition-building across the Warren, Burger, and Rehnquist Courts, and ask what his method reveals about how the Supreme Court actually decides: how much is doctrine, and how much is the patient assembly of a majority.
- Sullivan and the price of a free press. New York Times v. Sullivan gave American journalism protection unmatched anywhere in the world — and is now attacked from the right and questioned by some justices who would revisit it. Trace the 'actual malice' rule from 1964 to the present debate, and ask whether the robust, error-tolerant public discourse Brennan protected is a permanent achievement or an increasingly contested one.
- Living Constitution vs. originalism. Brennan's Contemporary Ratification was the great counterstatement to the originalism of Meese, Scalia, and the movement that would come to dominate the Court. Lay out the debate at its most serious, using Brennan and his opponents in their own words, and ask what is genuinely at stake — about democracy, judicial power, and change — in how a constitution's meaning is fixed. Seat lineage: Minton §87 → Brennan → David Souter §105.