79 Judicature 24 (1995-1996)
Justice Brennan and the Brandenburg Decision - A Lawgiver in Action

handle is hein.journals/judica79 and id is 26 raw text is: The first page of Justice Fortas's d
opinion in Brandenburg v. Ohio.
Justice Brennan and the Brandenburg
decision-a lawgiver in action !
Although the alterations Justice William Brennan
a
-0
made in the 1969 Brandenberg decision were few,      0
they resulted in a quantum change in First Amendment law.
0
by Bernard Schwartz

Oliver Wendell Holmes
once said that if Ameri-
can law were to be repre-
sented by a single figure,
skeptic and worshipper alike would
agree without dispute that the figure
could be one alone, and that one,
John Marshall.'1 If American law were
to be represented by a second figure,
most jurists would say that it should be
Holmes himself. It was Holmes, more
than any other legal thinker, who set
the agenda for modern constitutional
jurisprudence. There is no doubt that
a substantial part of 20th-century Su-
preme Court doctrine is a product of
Holmes's handiwork.
Nevertheless, as Judge Richard Pos-
ner points out, the primary vehicles
of Holmes's innovations were dissent-
ing opinions that, often after his
death, became and have remained the
majority position.'2 At the time they
BERNARD SCHWARTZ is Chapman Dis-
tinguished Professor of Law at the Univer-
sity of Tulsa College of Law.
were delivered, however, the Holmes
dissents spoke only for their author's
conception of the proper legal doc-
trine. While Justice Holmes was on the
Court, its jurisprudence remained

dominated by concepts that he was to
ultimately relegate to legal limbo. The
justice's dissents may have sounded
the clarion of the coming constitu-
tional era, but they did not really influ-
ence our law until after his death.
However crucial the role Holmes may
have played in American jurispru-
dence, it cannot be said that he played
a dominant part in Supreme Court de-
cision making.
If we look atjustices in terms of their
role in the decision process, Justice
William Brennan Jr. was actually the
most influential associate justice in Su-
preme Court history. As Brennan's bi-
ographer has written, ...more than
any justice in United States history
Brennan would change the way Ameri-
cans live.' Justice Brennan served as
the catalyst for some of the most sig-
nificant decisions during his tenure.
He was the leader of the Court's liberal
wing under ChiefJustices Earl Warren,
Warren Burger, and William Rehn-
quist. More important, Brennan's ju-
risprudence set the pattern for much
of American legal thought toward the
end of this century. So pervasive was
Brennan's influence that the English
periodical The Economist titled its story
on his retirement A lawgiver goes.'
Brennan's role in the cases in which

he wrote the opinion of the Court,' as
well as in cases such as Griswold6 and
Bakke7 where others wrote the key
1. Lerner, ed., THE MIND AND FAITH OF JUSTICE
HOLMES 385 (1943).
2. Posner, THE ESSENTIAL HOLMES xiii (1992).
3. Eisler, A JUSTICE FOR ALL: WILLIAM J. BRENNAN,
JR., AND THE DECISIONS THAT TRANSFORMED AMERICA 13
(1993).
4. The Economist, July 28, 1990, at 20. Compare
Eisler, id., Brennan [was] the most influentialjus-
tice of the twentieth century.
5. They include Jencks v. United States, 353 U.S.
657 (1957); Cooper v. Aaron, 358 U.S. 1 (1958);
Baker v. Cart, 369 U.S. 186 (1962); Fayv. Noia, 371

24 Judicature Volume 79, Number I July-August 1995

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