Justice Brennan and the Jurisprudence of Remedies Frank Askin The genius of William J. Brennan Jr.'s jurisprudence was his application of ancient principles of equity to the written United States Constitution. That was what earned for him and the Warren Court the label of "judicial activist" and transformed the federal judiciary into a potent force for social good. What really distinguished the so-called Warren Court from its predecessors was not so much its jurisprudence of rights as its jurisprudence of remedies. Individual rights litigation was practically unknown in the federal courts until the mid-1930s. The forward-looking Civil War Amendments, which are today the font of a vast system of constitutional protection, had been virtually nullified by conservative Justices in the late Nineteenth and early Twentieth Centuries. Except for an occasional dissent by a Justice Holmes or Brandeis, there was little in our constitutional jurisprudence which offered redress to Americans victimized by the agencies and agents of government, let alone private corporate power. Finally, in the latter half of the New Deal Era, a new breed of Supreme Court Justice began to find protection in the Fourteenth Amendment for rights of expression and belief as well as some rudimentary notion of Equal Protection and Due Process. But those principles were usually hesitatingly invoked as defenses for those afflicted by government overreaching. It wasn't until the advent of the Warren Court that the federal constitution began to be invoked as a sword as well as a shield for the protection of individual liberties. And that was mostly due to Justice Brennan. In a number of landmark opinions written by him, the Court began to provide judicial remedies that could affirmatively advance the cause of liberty and justice. The most notable of these opinions was Green v. County School Board, requiring federal courts to eliminate the vestiges of school segregation "root and branch." That concept gave rapid rise to the issuance of structural injunctions by federal judges to compel the restructuring of not only public school systems, but also other types of public institutions, to comply with constitutional standards. In the realm of political equality, Justice Brennan convinced a majority of his colleagues to construct a remedy for malapportioned electoral districts which allowed federal judges to become the ultimate arbiters of state and federal legislative boundaries. No court had ever held it acceptable for some voters' ballots to be weighted more heavily than others; but avoidance principles, such as justiciability and separation of powers, had historically been invoked to preclude judicial intervention. However, echoing first principles originally enunciated in Marbury v. Madison, Brennan wrote that federal courts had a clear duty to provide a remedy for such a deprivation of fundamental constitutional rights despite the shrill urgings of dissenting Justices that the decision represented a "massive repudiation of the experience of our whole past in asserting destructively novel judicial power ..." His opinions concerning the writ of habeas corpus brought about a virtual revolution in the application of constitutional norms to state criminal prosecutions by empowering federal judges to set aside convictions achieved by unconstitutional means. Brennan authored other opinions which provided remedies for previously unredressable constitutional wrongs. His philosophy of constitutional federalism, in sharp contrast to some of his brethren who have counseled in favor of judicial restraint in the exercise of constitutional power and authority, was summed up in a quotation he adopted from a district court opinion: We yet like to believe that wherever the federal courts sit human rights under the federal constitution are always a proper subject for adjudication ... Observers have often commented that Brennan's constitutional jurisprudence could not have been predicted from his life and writings prior to his appointment to the United States Supreme Court. And that may well be true as to the scope of his substantive commitment to the protection of individual rights. But what these observers ignore is how steeped he was in the legal and equitable traditions of New Jersey's common law system. There can be little doubt that the federal jurisprudence of Justice Brennan was shaped by his experience with the New Jersey judiciary. Like Cardozo and Holmes before him, Brennan was nurtured in a progressive state system that produced strong common law judges accustomed to refreshing ancient doctrine with modern wisdom born of experience. Not only did Brennan serve as both a trial and appellate judge in new Jersey before moving on to Washington, he also was one of the architects of the modern New Jersey judicial system as a member of the 1947 New Jersey Constitutional Convention. As a member of the convention's judiciary committee, he helped to create what has since come to be recognized as one of the most forward-looking judicial systems in the nation. Part of the structure Brennan helped create was the merger of the law and equity courts designed to preserve the best characteristics of both systems. Brennan and his colleagues on the convention's judiciary committee paid special heed to the testimony of the eminent Harvard Law School Dean Roscoe Pound. Explaining why the merger of law and equity would advance, not retard, the dispensing of justice in New Jersey, Pound explained: Equity, after all, is a great supplement to the common law. It deals with everything all over the domain of the common law. It is a remedial system, really, a great system of remedies where the common law is not equal to maintaining the legal rights which it developed and which it recognizes.... After all, it is not merely that equity follows the law. Equity, in a sense, is administering the law, but it is administering it by different kinds of remedies and within a different atmosphere, you might say, by application of those remedies. Within a year after helping to incorporate Dean Pound's ideas into the State Constitution, Brennan was implementing those ideas as a member of the state's Superior Court, dividing his time between the law and Chancery Divisions in Hudson County. Although his trial court stay was short, it is clear that he carried this judicial philosophy to Washington when appointed to the United States Supreme Court by President Eisenhower in 1956. A close review of Pound's thesis appears to provide a roadmap for Brennan's constitutional jurisprudence. It explains the remarkable authority that Brennan recognized in federal judges sitting as judges of both law and equity in the merged federal judicial system. Where the judge's common law remedial powers were obviously insufficient to fully enforce constitutional rights, the judge was to invoke the authority of the chancellor to do so. Eliminate unconstitutional practices "root and branch," was Brennan's instruction to federal district judges. And for a relatively brief period in the Sixties and Seventies that indeed was the operative mode of operations for federal judges. That era was admittedly short-lived. By 1975, Justice William Rehnquist was openly challenging the Brennan doctrines supporting an activist federal judiciary and creating a new conservative majority in the post-Warren Era. Despite massive repudiation by the new majority, Justice Brennan never ceased to advocate his view of constitutional jurisprudence, infused as it was by a sense of the historic role of equity to provide appropriate remedies where necessary to enforce legal (and constitutional) norms. The question remains whether Brennan's views were a temporary aberration or whether his views will be rediscovered by a future generation to guide a renewal of a constitutional jurisprudence committed to enforcement of individual rights and personal autonomy. Thanks to Justice Brennan, that jurisprudence will be readily at hand when the time comes.