Interviews with a Supreme Court Justice
Stephen Wermiel is a Fellow in Law and Government and associate director of the Summer Institute on Law and Government at American University's Washington College of Law. He holds expertise in the U.S. Supreme Court, having covered the court for the Wall Street Journal from 1979 until 1991. During his 12-year tenure at the Journal, he covered and interpreted more than 1,300 Supreme Court decisions and analyzed trends on a broad array of legal issues. His new book, Justice Brennan, Liberal Champion, was coauthored by Congressional Quarterly’s Seth Stern and has been reviewed by the New York Times, Washington Post, and dozens of other outlets.
In a Q& A Wermiel discusses his interviews and working relationship with Justice Brennan.
Q: How did your relationship with Justice Brennan start?
A: In 1986, I had been covering the Supreme Court for about two years for the Boston Globe, and seven years for the Wall Street Journal. I had never met Justice Brennan, had never laid eyes on him off the bench. A good friend of mine, Abner Mikva, who was the chief judge of the U.S. Court of Appeals in D.C., and a good friend of Justice Brennan, approached me and asked if I was interested in writing a book about the Supreme Court. It turned out that he knew Brennan was looking for a biographer. My work in covering the Supreme Court was well respected; they knew I had a law degree. I think I fit what they were looking for.
It was pretty clear once we started that Brennan wanted a biographer and was happy to have me asking him questions and taping the answers. Over time, he seemed happy to give me access to more and more papers. I approached it cautiously, thinking this balloon could burst at any moment. But I never really sensed any hesitation on his part. There were some questions he didn’t really want to talk about. For example, he didn’t want to talk about his first wife who had died of cancer.
Q: How did your interviews with him change over time?
A: He certainly accepted me more in his chambers, and included me in more things. He allowed me to join his morning conversations with his law clerks on an occasional basis. I asked him if I could witness different aspects of the way he did the job. In particular, when he met with the law clerks to prepare for oral argument to go over the cases that would be argued in the next few weeks. I think I earned his trust.
He was always cautious about how he was going to be portrayed. He knew that was the point of the interviews; that what I captured from him was how he was going to be portrayed in the history books. I think he was never not thinking about that. I think there were moments of candor, and he was open and honest about many things, but there were some things that he knew exactly how he wanted to be portrayed and that was never going to change.
Q: What was it like to know that you had such unfettered access to someone who was regarded as something of a mystery to the general public?
A: In the period when I was interviewing him, he was not so much of a mystery. The Brennan that I had covered [as a journalist] had disappeared from public view from 1969 to about 1983. This was partly because of his wife’s illness, and an overreaction [on his part] to some financial scandals. He basically withdrew. He stopped giving speeches. He even quit the ABA. He gave up all his investments. He became a man who sat on the bench, but otherwise was about as private and invisible as could be.
But by 1986 he was celebrating his 80th birthday and 30 years on the court. So he was coming out. He was giving more speeches. He was going to visit schools, organizations, and being more visible and really engaging more. So he wasn’t as mysterious. But it was a remarkable opportunity. He was an amazing man, incredibly warm, friendly, and down to earth. There was never the kind of moment when somebody might turn to you and say “this is awfully complicated, I’m not sure I can explain it to you in a way that you might understand.” We just talked. He didn’t treat me as if he was the subject and I was the mentee.
Occasionally he’d get frustrated at my questions. Sometimes I did that deliberately, sometimes not. I would ask him with some frequency, because I kept trying to see if I could goad him into a different answer. Questions like: “What are your decisions based on? How could it not be that they were based on your personal biases? How could it really be that your Catholicism doesn’t affect your decision making?” He’d get frustrated, saying “We’ve been over that over and over. I’ve told you Steve, I took an oath to uphold the Constitution. I do my job conscientiously. I swore to uphold the cases.” I respected his answer, and I think it was probably the right one. And even in those few moments when he’d get frustrated, he’d always be gracious.
Q: How did what you learned in his chambers influence your career as a reporter and as a law professor?
A: I don’t know that I had some sort of dramatic clichéd moment where I had an epiphany saying “these are the value systems that drive mankind and I’m going to follow them from now on.” Even in high school when I actually wrote a couple of columns for the high school newspaper about the Supreme Court, I always had an enormous respect for the role of the institution.
I came to appreciate through him [Brennan] that the institution really works. There may occasionally be fights, blips, and personal differences. But by and large, it is the institution that I imagined it to be, and that I imagined to be worthy of my respect. The justices take the cases seriously, they do most of their work in writing, exchanging memos and feedback about the opinions, trying to work out what the standards ought to be in particular cases, how cases should come out, what the interests are in those cases, and so on.
The significance of this answer is that I don’t think that is the general public’s perception. I’ve spent a fair amount of my life trying to work against the image of the Supreme Court as just another political institution, in which justices make deals and trade votes and lobby each other as if there was no difference between the court and the legislature. My experiences with Brennan showed me that the institution worked.
You also can’t help but spend time with him and come to think about values, and the importance of the way government treats individuals. He talked for most of his time on the court about the Constitution protecting human dignity. I think he thought a significant part of human dignity was government being accountable to the people in court. That’s a different image of our system from what many people have. You’re taught in civics class that government is accountable to the people on election day, that if we don’t like what government is doing than we vote against the president or vote for the Congress. That’s how you express your role in our democracy. But I think Brennan thought that if government doesn’t treat people properly then you should be able to go to court and sue the government, and that this was a critical part of what made our system special and important.
Q: What did you find out that surprised you the most when you were going through his material?
A: The Reagan administration had captured the imagination of the American people with the image of liberal judicial activists. They sold the idea that liberal judges spend their day writing their personal views into the Constitution, or reading their own personal views into federal and state laws. As part of that, they made Brennan the archetypal villain; that this was the guy who got up every morning and said he was going to impose his liberal values on the judicial system.
So with that in mind, it was very surprising to learn that there were ways that Brennan was a very old fashioned, conservative guy. The three examples we talk about most in the book are:
- As a good Catholic, he really disliked abortion. He said he would persuade his daughter not to have one, if it came to that. But he never wavered in his support for the existence of the right to an abortion. He never wavered to uphold a restriction on abortion. He believed that interfered with fundamental rights.
- I would argue that he was the greatest defender of the scope of freedom of the press ever in the history of our country, at least, freedom of the press as a constitutional matter. I don’t think anyone was more ardent in their defense of freedom of the press than he was, but he didn’t particularly like or trust reporters. He didn’t want to talk to the press, saying it was too easy to be misquoted. He believed in freedom of the press as a constitutional value and the role it played in our society, but he didn’t want that to have anything to do with his life or his role as a Justice.
- He wrote two leading gender discrimination opinions in the 1970s. In 1973 when he wrote the first opinion, he’d never hired a woman law clerk. He’d in fact refused an offer by a couple of his former clerks who were teaching at Berkeley to send him a woman law clerk. To his credit he changed and started hiring women clerks, but still, very slowly. He understood that it was time for women to be treated fairly for the first time in our history.
Q: What is the one thing that you hope readers of the book take away from it?
A: It’s two, if you forgive me for rewriting the question. One is what I said a few minutes ago, which is I hope that readers will gain some understanding on how the Supreme Court really works, and how deliberative and thoughtful a process the Supreme Court engages in. It comes partly from my belief of the importance of the court in our society, and that people should understand how it works because it enhances the credibility of the court.
The second thing is that I hope people gain a genuine appreciation for the role Brennan played, which I firmly believe has shaped the landscape of rights, not only during his time on the court but for generations to come. Whether you agree or disagree with him, much of the debate about the scope of free speech, the degree of separation of church and state, the legitimacy of the death penalty, the accountability of government, the protection of privacy and other rights implied in the Bill of Rights — much of what we talk about in constitutional terms today was shaped by Justice Brennan. I think it’s an extraordinary life story, both for its impact on our world and also because he’s an interesting figure.