I met Supreme Court Justice William Brennan in 1987 when I was creating a series for public television called In Search of the Constitution, celebrating the bicentennial of our founding document. By then, he had served on the court longer than any of his colleagues and had written close to 500 majority opinions, many of them addressing fundamental questions of equality, voting rights, school segregation and—in New York Times v. Sullivan in particular—the defense of a free press.
Those decisions brought a storm of protest from across the country. He claimed that he never took personally the resentment and anger directed at him. He did, however, subsequently reveal that his own mother told him she had always liked his opinions when he was on the New Jersey court, but wondered now that he was on the Supreme Court, “Why can’t you do it the same way?” His answer: “We have to discharge our responsibility to enforce the rights in favor of minorities, whatever the majority reaction may be.”
Although a liberal, he worried about the looming size of government. When he mentioned that modern science might be creating “a Frankenstein,” I asked, “How so?” He looked around his chambers and replied, “The very conversation we’re now having can be overheard. Science has done things that, as I understand it, makes it possible through these drapes and those windows to get something in here that takes down what we’re talking about.”
That was long before the era of cyberspace and the maximum surveillance state that grows topsy-turvy with every administration. How I wish he were here now—and still on the Court!
My interview with him was one of twelve episodes in that series on the Constitution. Another concerned a case he had heard back in 1967. It involved a teacher named Harry Keyishian who had been fired because he would not sign a New York State loyalty oath. Justice Brennan ruled that the loyalty oath and other anti-subversive state statutes of that era violated First Amendment protections of academic freedom.
I tracked Keyishian down and interviewed him. Justice Brennan watched that program and was fascinated to see the actual person behind the name on his decision. The journalist Nat Hentoff, who followed Brennan’s work closely, wrote, “He may have seen hardly any of the litigants before him, but he searched for a sense of them in the cases that reached him.” Watching the interview with Keyishian, he said, “It was the first time I had seen him. Until then, I had no idea that he and the other teachers would have lost everything if the case had gone the other way.”
Toward the end of his tenure, when he was writing an increasing number of dissents on the Rehnquist Court, Brennan was asked if he was getting discouraged. He smiled and said, “Look, pal, we’ve always known—the Framers knew—that liberty is a fragile thing. You can’t give up.” And he didn’t.