Public Discourse: “William Brennan and the Creation of a Right to Abortion”

Gregory J. Sullivan writes:

No matter how heavy the theorizing may get, the project of interpreting what is known as the “living” Constitution is nothing more than the dishonest use of the law to reach ideologically pleasing results. This is one of the salient lessons of a new biography of Justice William Brennan, Jr., Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel. This book, though not without flaws, provides a balanced and lucid portrait of this masterly behind-the-scenes law bender whose influence is, alas, alive and well on the current Court.

This biography confirms the most essential point about the internal workings of the Warren Court. Although the Court was nominally under the leadership of Chief Justice Earl Warren, the revolutionary jurisprudence that emanated in such profusion from it was orchestrated by Brennan. Though not a profound thinker, Brennan knew exactly where he wanted the Court to go. He used his considerable charm and shrewd capacity for self-effacement to form the majorities that transformed judicial review into the most potent instrument of liberal social engineering in American government.

Brennan’s interpretive approach was to consider the Constitution a “living” document that should be construed with current, as opposed to original, meaning. When the Constitution lives, judicial discretion is maximized. In one area of law after another, Brennan used this virtually boundless discretion to make his extremely left-wing policy preferences those of the nation—not all at once but carefully, incrementally. It was a revolution in slow motion. Brennan cared very little for the legal reasoning required in a case: whatever his clerks could use to justify the result he wanted and keep a majority together sufficed for him.

Abortion is the classic example of this process...

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