THE HAPPY IRISHMAN ON THE SUPREME BENCH
Berger, Charles W.
The Happy Irishman on The Supreme Bench by CHARLES W. BERGER MR. JUSTICE Brennan is all things to all magazines. The Nation was relieved that he wasn't Dulles, Brownell, or Dewey. The New...
...Chances are he hopes now that the idea isn't so silly as it sounded to him then...
...The happy Irishman was appointed to the New Jersey Supreme Court in 1952...
...Supreme Court Justices deal with...
...Life called him a fine judge ready for his biggest job...
...In fact his most vehement dissent was leveled at his chief...
...And, because a prosecutor in another case called a murder defendant "this butcher boy," Brennan was for reversing the conviction...
...Newsweek dubbed him Ike's Democrat...
...And he upheld the validity of a New Jersey law which said no one had to pay union dues to a union which had a convict as an officer...
...He wrote an average number of opinions, dissented an average number of times, made an average number of mistakes, and had an average number of children (three...
...The Nation expressed the fear that, since Brennan was a student of Felix Frankfurter at Harvard, he may become on the Court a fogbound disciple of his old professor...
...Wrote Brennan: "That old hobgoblin perjury . . . is again disinterred from the grave...
...But Brennan is not straight down the labor line...
...Even so, what the new Justice has written may, in the light of his personal background, give us occasional clues to what he will write in the future...
...But this limitation on the Fifth—as the limitation on the First —is consonant with a large segment of Catholic opinion and gives weight to the argument that Brennan's religion will temper his judicial attitude...
...He has expressly disavowed any form of prior censorship...
...So each state is free to make its own rules about a witness' ability to remain silent on the stand...
...He is not simply a happy Irishman, but he does not seem terribly troubled with overall philosophy or eternal law...
...It shocks my sense of justice that in these circumstances counsel for an accused facing a possible death sentence should be denied inspection of his confession which, were this a civil case, could not be denied...
...And, in another case directly touching religion, he joined in the Court's decision to bar the Gideon Society from giving King James Bibles to school children when Catholics and Jews objected...
...This was in a case about a gambler, not a Communist, and it interpreted New Jersey statutes rather than federal laws...
...The New Republic, admitting that Brennan "may not possess the intellectual brilliance of Cardozo, the fire of Holmes and Brandeis, or the proved capacity of Douglas and Black to resist the passion of the crowd," put him in the class of Warren and Harlan...
...Brennan held that the Fifth is not as fundamental as the First and applies only in federal courts...
...Have they been in the past...
...In this respect he resembles the late Justice Frank Murphy...
...In other words, Brennan is about the most average judge imaginable...
...Justice William J. Brennan...
...In a case to suspend a patrolman for fooling around in motels with ladies of unquestionable repute, Brennan held that the Civil Service Commission hadn't given him a fair hearing but that the Supreme Court could and would suspend him on its own motion...
...Since then he has blackened with type one thousand pages of thirteen volumes of the New Jersey Reports...
...His is the luck of the happy Irishman and he'll probably luck his way through the average number of decisions on the big Court...
...Although Brennan is aware of legal history and the policy of laws, he prefers to base his decisions on past cases or on the inherent broad powers of the legislature...
...For, although Brennan dissented less than some others on the New Jersey court, he preferred to think for himself, so that none could predict that he would always line up with this or that judge—not even with Chief Justice Vanderbilt...
...The Reporter of the Passaic County Bar Association called his views "broad, liberal [and] humane," while The Catholic World was "sure that Justice Brennan [would] give short shrift to any notion that law is merely the will of the majority . . . Justice Brennan has the faith that recognizes the fact that both rulers and people are bound by the eternal law of God...
...If you choose his words carefully, you can damn or praise him because he's content to make his decisions from case to case, depending on some inner feeling of fairness, so that inconsistency does not bother him...
...Perhaps the most impressive facet of Brennan's character which shows in his decisions is the strict standard of behavior he requires of lawyers, policemen, public prosecutors, and other officials...
...In one of the two scholarly articles he has published, Brennan quoted the following with amusement: "A few people think that the moment [a] judge takes the oath of office, the Lord endows him with an ability a hundred times greater than he had a moment before...
...A direct Catholic issue was involved in a zoning case about a seminary wishing to expand within a residential neighborhood...
...Policemen especially have felt his displeasure...
...The picture a lawyer would gather of Mr...
...Brennan has written that the most important guaranty of freedom is the First Amendment protection of religion, speech, and press...
...For instance, Brennan dissented from a decision denying workmen's compensation to a machinist injured as the result of an epileptic fit...
...He held that the New Jersey tourt could not stop such picketing— even though the NLRB had not taken and might never take jurisdiction of the case...
...No lawyer who has read all his hundred-odd rambling essays would agree with President Eisenhower that experience is the best teacher for a Supreme Court Justice...
...But the choicest epithet was left for Time, whose writers glorified him as "the happy Irishman...
...But it is the same viewpoint Cardinal Spellman reiterated from the pulpit in his recent condemnation of the movie Baby Doll...
...privilege against self-incrimination...
...This anachronistic apprehension that liberal discovery if extended to criminal cases will 'inevitably' bring the serious and sinister dangers of perjury . . . will seem strange . . . coming from this court...
...But despite the fact that Brennan's first reported dissent in the U.S...
...Brennan disagreed with the majority of the Court and, in line with his usual support of zoning authorities, wrote a strong opinion telling why the seminary should be permitted to enlarge...
...In New Jersey, Chief Justice Vanderbilt takes care of most such decisions himself and assigns stuff like zoning variances and jail guards' salary squabbles to lesser lights like Bill Brennan...
...In fact, Brennan's first dissent after being appointed recorded his and Vanderbilt's vote to disbar rather than suspend a wayward shyster...
...Interpreting a collective bargaining agreement, he said that workers who staged a slowdown were not entitled to vacation pay...
...Enlightening, too, is Brennan's treatment ol the Fifth Amendment CHARtES W. BERGER, a student at the Yale taw School, has made o special study of the life and judicial opinions of Mr...
...But his luck was not average...
...Supreme Court joined in Frankfurter's, he is not just a follower...
...The zoning board approved but the courts said the zoning board should not have done so...
...The witness is thus not permitted to make that decision for himself as he virtually is in Federal Court where he need not reply unless the answer cannot possibly tend to incriminate him...
...He held that policemen must pay damages to wounded bystanders whom they shoot carelessly while in hot pursuit of robbers...
...For no more than half a dozen of his opinions touched the sort of problems U.S...
...However, in an action to dismiss a police chief for not enforcing the gambling laws, Brennan reversed the conviction since it was based on the testimony of a witness who appeared to be the biggest liar in New Jersey...
...worked for management as a practicing lawyer, his decisions show sympathy for working men and unions in collective bargaining, personal injury, and compensation matters...
...The Catholic World may pray for Justice Brennan to revive Natural Law, but he got scant practice working on materialmen's liens and unemployment compensation cases...
...Justice Brennan from his state court opinions, then, is this: He is not a blind apostle of conservative Catholicism, but his religion may influence his attitude on cases about religion, communism, free speech and press, equality, and integration...
...William J. Brennan, Sr., the Justice's father, was a laborer, and although William, Jr...
...Again, approval will be found not only among Catholics...
...This approval of censorship where a show counsels "vice and voluptuousness" is not advocated by Catholics alone...
...If he should persist in his silence, the witness may be fined and jailed, which was what eventually happened to Brennan's gambler...
...Brennan and two other judges contended that the concrete floor which came up and hit the worker in the head was "a hazard of employment which contributed to the accident...
...In a trade dispute, Brennan followed a federal court ruling that the National Labor Relations Board has exclusive power over peaceful picketing of industries in interstate commerce...
...Brennan concluded that a witness must answer the questions asked if the trial judge decides the answer probably will not tend to incriminate him...
...So while paying lip service to the proposition that censorship may be only an expression of the "censor's own highly subjective view of morality," Brennan wrote that a burlesque show could be constitutionally prevented from opening—provided the court were satisfied that the show would be wholly sexual in nature...
...He is not a 100 per cent advocate of the working class, but he supports union aims, welfare schemes, and is liberal toward injured persons...
...The language may sometimes smack of Frankfurter's but Brennan seems not to subscribe to the old professor's judicial attitude of not deciding a point that can possibly be avoided...
...But he draws the line where "the dominant note" of a presentation is "erotic allurement 'tending to excite lustful and lecherous desire,' dirt for dirt's sake only...
...The Catholic World hopes that the Justice's opinions will be colored by his religion...
Vol. 21 • February 1957 • No. 2
