Justices Marshall and Brennan Battle to Keep Liberalism Alive at the U.s. Supreme Court
updated 07/07/1986 AT 01:00 AM EDT
•originally published 07/07/1986 AT 01:00 AM EDT
The two, who between them have served 49 years on the High Court, have ample reason to stick together. Six appointments by three Republican Presidents since 1969 have left Brennan and Marshall the only consistently liberal voices on an increasingly conservative Court. They are now a minority of two in finding the death penalty unconstitutional. They can often manage to cobble together enough votes to prevent the outright reversal of a liberal precedent—preserving affirmative action, the right to abortion and an arrested suspect's right to an attorney during questioning, for instance—but they are swimming against a stiffening conservative current in the Court's opinions.
That current gathered the force of a riptide in June, when President Reagan nominated archconservative Justice William Rehnquist, 61, to replace fellow Nixon appointee Warren Burger, 78, as Chief Justice when Burger retires this month. Reagan named another vigorous conservative, federal appeals court judge Antonin Scalia, 50, to assume Rehnquist's old seat. (Both men are expected to be confirmed by the Senate.) That will leave Brennan and Marshall fighting the same numerical odds as before—battling two conservatives for the minds and votes of the other five generally middle-of-the-road Justices—but the political acumen, intellectual power and raw energy of Rehnquist and Scalia promise to make the aging liberals' task ever more daunting.
Despite the steep slope rising at their feet, neither man has any intention of retiring while Reagan—whom Brennan refers to privately as "that man"—is in office to appoint their successors. "I'm not leaving," Brennan stated flatly to a friend. Marshall has been equally blunt: "I was appointed for life, and I intend to serve out my term."
Court watchers frankly wonder how long those terms will be. Marshall, who had a mild heart attack in 1976, suffers from glaucoma, and though he beat a three-pack-a-day smoking habit, he hasn't conquered his weight problem (6'2", 250 lbs.). Stories about his health continue to circulate: His clerks joke that he can never catch them goofing off because they can hear him puffing and wheezing down the hall. Brennan, the Court's oldest serving jurist, underwent treatment for a malignant throat tumor in 1978 and suffered a mild stroke the following year, but he is now fit enough to ride a stationary bike half an hour a day. He delights in making people wince with his handshake.
Even if the two hang on, their sometime allies Harry Blackmun, 77, or Lewis Powell, 78, may not—clearing the bench for more Reagan appointees.
Neither Brennan nor Marshall are strangers to adversity. Brennan, whose Irish immigrant father worked as a coal heaver in a Newark, N.J. brewery, earned money in his youth delivering milk and working in a gasoline station. After practicing labor law in Newark, he was serving as a New Jersey Supreme Court justice when Dwight Eisenhower picked him for the nation's highest court in 1956.
A gregarious personality among friends, Brennan turned inward when his wife of more than 50 years, Marjorie, fell ill with cancer. His social life virtually halted. For years he left the court every day at 4:30 p.m. to attend her. Marjorie died in 1982. A few months later, Brennan married his secretary of more than 20 years, Mary Fowler, now 71, and has since become a regular again on the Washington social circuit. He travels widely, delivering combative speeches and talking freely with the press. Last April he agreed to star in an hour-long documentary, Mr. Justice Brennan. His renewed public self-confidence amazes his former law clerks. "I'm waiting to turn on the set and see him trading jokes with Johnny Carson," says one.
Marshall, the great-grandson of a slave and the only black ever appointed to the Supreme Court, has also demonstrated enormous staying power. Growing up in a Baltimore ghetto, the son of a steward at an all-white Chesapeake Bay yacht club, he worked one summer as a dining car cook ("I can do anything except pastry"). He maintained a small law practice in Baltimore before joining the fledgling civil rights movement in 1934. For 20 years Marshall served as executive director of the NAACP Legal Defense and Education Fund, heading the team of lawyers that won the 1954 landmark decision in Brown vs. Board of Education, which declared segregated schools unconstitutional. Lyndon Johnson made him solicitor general, then appointed him to the Supreme Court in 1967.
"Marshall is an unwavering champion of the underdog, the conscience of the Court," says a former law clerk. "He's happy in that role."
As is Brennan. "He enjoys the intellectual battles at the court," says a lawyer who knows him well. "He's got an irrepressible love of life, and he's still willing to engage in losing battles."
As time and tide inevitably take their toll, it appears that's precisely the type of battle in which Brennan and Marshall will increasingly be engaged.