Gregory J. Sullivan has written a valuable article for the Witherspoon Institute on the influence of U.S. Supreme Court Justice William Brennan, jr. upon American jurisprudence – especially on abortion and the “right to privacy” that paved the way. Guided by the idea of a “living constitution,” Brennan made his own singular contributions to crafting a constitutional and cultural revolution in the United States from his bench on the nation’s highest court.
Sullivan’s analysis of Brennan’s legacy is prompted by a new biography of Brennan, Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel. The authors write that Brennan was the real architect behind inventing the “right to privacy.” This “right” is the driving force behind the high court’s decision to overthrow the States’ restrictions on contraception (Griswold v. Connecticut, 1965) and abortion (Roe v. Wade, Doe v. Bolton, 1973), to make homosexuals eligible as a protected class (Romer v. Evans, 1996), to outlaw sodomy laws (Lawrence v. Texas, 2003), and will soon be used to overturn their marriage laws – unless Congress intervenes.
Brennan’s own road as a “liberal champion” began in 1956 with his almost unanimous confirmation to the U.S. Supreme Court, and ended in 1990. Only one U.S. Senator voted against him, anti-communist Sen. Joe McCarthy of Wisconsin, because Brennan said in a speech that anti-communist investigations amounted to “witch hunts.”
The liberal jurist died in 1994, leaving an indelible mark on American jurisprudence that has changed the fabric of the republic and its society – and not for the better.
But ultimate responsibility for this constitutional wreckage from the court belongs to the U.S. Congress, not Brennan or the Warren Court.
Under the U.S. Constitution, Congress has the authority in Art. III, sec. 2 to restrain and rebuke the court by withdrawing its appellate jurisdiction from certain types of cases. It certainly could have done so for Griswold, Roe, Doe, Romer, Lawrence, and can do so now for Perry v. Schwarzenegger.
It’s not too late. But the pro-life community and pro-family community had better get the conversation going that Congress should take the court out of these controversial social decisions. There is a clear way in Art. III. But anything like a constitutional amendment – or even harder, like the impeachment of judges – is about as profitable as waiting for Godot. (In case no one has read the play by Samuel Beckett, Godot never arrives, but he is always expected.)
The responsibility of tackling tough questions on social policy and morals belongs to the Congress and the States – not the courts. The people and their legislatures must engage in rigorous debate to change hearts and minds in order to effect new social policy and laws for the common good. It is a hard, arduous process – but it is an indispensible dimension of government “by the people” that is also “for the people.”
Our nation’s politics is at such a fevered pitch over abortion, and will get even worse if the high court crafts a right to same-sex “marriage” out of Brennan’s “right to privacy” and other such mystic judicial nonsense. Congress should intervene – even if it is to uphold their oath to defend the Constitution from the federal judiciary’s delusions of grandeur.
United States Constitution, Article III (on the Judicial Branch).