Law: The Power of Justice William Brennan

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Ever since Chief Justice Earl Warren retired from the U.S. Supreme Court 16 years ago, American conservatives have been waiting for wholesale reversals of the Warren era's liberal precedents. But despite six Republican presidential appointees to the high bench since then, the turnaround has not materialized. One of the most powerful forces holding back the conservative tide has been a small, slightly rumpled, elderly gentleman with a ready smile and a legendary gift for gab, William J. Brennan Jr. Court observers agree that the liberal Justice, even in the supposed exile of dissent, has emerged as the master strategist of the Burger court.

Accepting that his views no longer easily prevail, he has devoted himself instead to reining in the new court. "He does it by a very agile mind, a fluid pen and tireless work," says Stanford Law Professor Gerald Gunther. The term just ended was a particularly satisfying one for Brennan, highlighted by his authorship of two decisions that strongly reasserted the constitutional separation of church and state. Brennan has spent nearly 29 years on the high bench fighting to uphold such principles, and he has some formidable weapons at his command.

Soon after his appointment by Dwight Eisenhower, he began earning a reputation as "the best coalition builder ever to sit on the Supreme Court," says L.A. Scot Powe Jr., a University of Texas law professor and former clerk to Justice William O. Douglas. Brennan has never relinquished the role. A dedicated pragmatist, the onetime New Jersey labor lawyer now uses his negotiating skills to bring the shifting middle of the court--Harry Blackmun, Lewis Powell and Byron White--closer to the liberal corner that he shares with Thurgood Marshall and often John Paul Stevens. A hesitating colleague is likely to be asked, "Would you be happier if the standard were phrased this way?" If, as often happens, he is seeking Powell's fifth vote, recalls a former court staffer, he will "have the clerk working on the opinion keep in touch with Powell's clerk" to make sure the emerging reasoning is acceptable to his colleague.--Brennan will even sacrifice some of his own views if necessary. Says University of Michigan Law Professor Yale Kamisar: "He doesn't want to be 100% principled and lose by one vote."

When he cannot cobble together a majority, Brennan tries other tactics. He will cajole the conservative opinion writer with memos--called letters at the court in an effort to limit the damage to a liberal precedent. Sometimes he will get on the phone to put his case personally. The Justice's long tenure and encyclopedic knowledge of past decisions help to make him more persuasive. His intellectual pressure, say many court insiders, has meant that some opinions that start out broadly conservative end up stating a more limited principle.