Brennan Eulogies Wrong on Rights
by L. Brent Bozell III
August 5, 1997

The recent death of long-time liberal Supreme Court Justice William Brennan drew predictably glowing media tributes. Certainly, we should hope that major American figures would be remembered upon their deaths with some humanity and grace (to witness the opposite, see the notices for Lee Atwater). But respect for the truth should be as much a media practice as respect for the departed.

The wave of Brennan tributes were not completely untrue. Conservatives would be foolish to object to the media's suggestion that Brennan was an enormously influential figure on the Supreme Court, more influential than most Chief Justices in the Court's history. But reporters insisted, almost unanimously, that Brennan would be remembered for his die-hard advocacy of "individual rights" or "individual liberty." Brennan's repeated blows for a government-heavy liberal agenda were washed away as the media waxed nostalgic.

On the "NBC Nightly News," anchor Tom Brokaw eulogized Brennan as "a brilliant constitutional scholar who used that document as a dynamic instrument in American life and used it to reshape and expand individual rights in this country." Reporter Pete Williams added he was "appointed to the Court by President Eisenhower, but became an advocate for the right of individuals to challenge government power." (Which conservative justices oppose this?) On ABC's "World News Tonight," substitute anchor Renee Poussaint gushed: "He was one of the most influential jurists in American history with a legacy of defending individual rights."

Time magazine wouldn't even assign a reporter, but handed over the obituary to liberal Harvard law professor Laurence Tribe: "To describe William J Brennan as one of the greatest Justices of all time is to put things too abstractly. Before Brennan, the Bill of Rights protected people mostly from the federal government, but scarcely from states and cities...If John Marshall was the chief architect of a powerful national government, then Brennan was the principal architect of the nation's system for protecting individual rights."

In Newsweek, Brennan's authorized biographer, Stephen Vermiel, a former Wall Street Journal Supreme Court reporter, used the classic good liberal/bad conservative dichotomy: "His influence came from his ability to make his expansive view of rights in the Constititution a more attractive, more appealing alternative for other justices than the pinched reading of the Constitution advanced by conservative colleagues."

In the Washington Post , reporter Joan Biskupic once again dwelled on one of her favorite themes: "Brennan was recognized across the political spectrum not only for his legal mastery but as a defender of individual liberty and a voice of civility." In USA Today,

Tony Mauro and Mimi Hall wrote that Brennan "led the Supreme Court on a quiet revolution that expanded individual rights and press freedoms to an extent found nowhere else in the world... Brennan saw his influence wane as justices appointed by Presidents Reagan and Bush cut back the court's role as active protector of individual rights."

Nobody seemed to ask the question: Which rights? Whose liberties? For decades, liberal Supreme Court reporters have followed a very white-hat, black-hat script: liberals favor individual rights, conservatives defend centralized government power. If reporters would allow the slightest sliver of ambiguity, they would acknowledge that rights are often finite: what rights you reward to some, you may remove from others. The right to abortion deprives the unborn of the right to life. The right to collective environmental protection may run roughshod over the right to own and manage property. The rights of the criminal are awarded despite the criminal's failure to respect the rights of victims.

A few exceptions were allowed. Jim Lehrer's NewsHour invited law professor Douglas Kmiec to present a conservative critique. The New York Times front-page obit by Linda Greenhouse quoted former Reagan Justice Department official William Bradford Reynolds charging in 1986 that Brennan represented a "radical egalitarianism" that he called "perhaps the major threat to individual liberty" in America.

Few reporters acknowledged the real Brennan story line: that the Old Liberalism he represented - of explicit racial quotas, abortion on demand, school busing, unqualified opposition to the death penalty, rigid separation of church and state - is now and has long been unpopular with the American people. Indeed, it could be argued that Brennan's judicial successes may have led directly to the conservative movement's rejuvenation, followed by conservative political successes. But that analysis will never see the light of day in the mainstream press.

Sen. Jesse Helms is in the twilight of his career, one that has been every bit as influential as Justice Brennan's was. He is as revered by the right as Brennan was by the left. When Jesse departs to meet his maker, will Brokaw label him "brilliant"? Will Poussaint celebrate his "legacy of defending individual rights"? Will Biskupic call him "a voice of civility"? Yes, and Bill Weld will deliver the eulogy, too.