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Laurence H. Tribe, Senior Counselor for Access to Justice, Keynote Remarks at the Dedication of the Essex County Justice William J. Brennan, Jr. Memorial Statue
Newark, New Jersey ~ Thursday, June 3, 2010

As prepared for delivery.

I would like to thank the Memorial Committee and Guy Sterling, Joseph DiVincenzo, Jr., the Essex County Board of Chosen Freeholders, and Justice Brennan’s daughter Nancy and daughter-in-law Georgiana for welcoming me here to Newark for this wonderful occasion.  I also want to join all of you in acknowledging Thomas Jay Warren for his truly singular sculptural creation – I can think of no compliment more fitting than to say that this statue’s dignity and refinement almost equal that of its subject. 

Speaking about Justice Brennan and this extraordinary tribute to him is incredibly poignant and special for me – I am proud to say that Justice Brennan was my judicial hero, and I am honored to say that he was my friend.  I hope you’ll allow me a few minutes to describe why I hold Justice Brennan in such high esteem and why the unveiling of this statue in his honor should serve not only as an occasion to remember the lovable human being he was, but also as a call to all of us to continue on the path toward justice that he so admirably forged. 

Justice Brennan wrote more than 1,300 opinions while serving on the United States Supreme Court, and through those opinions he literally transformed the American legal landscape.  Simply put, he was the primary architect of the system of individual rights that we take for granted today. To say he invented the system would be too much – and arguably inappropriate for the judicial branch. I believe the system was genuinely implicit in our Constitution. That was the Constitution’s genius. But the system had barely been sketched by generations of Framers before William Brennan came to our nation’s highest court.  He had the vision to see the design whole, and he exercised the artistry to build it into an enduring legal scaffold – a living sculpture for the ages.

Before Justice Brennan took his seat on the Supreme Court, the government could terminate an individual’s welfare benefits with no explanation, or even an opportunity to be heard.  That changed with Justice Brennan’s landmark opinion in Goldberg v. Kelly,  which stood for the audacious principle that poor people too deserve due process of law.

Before Justice Brennan’s 1964 opinion in New York Times v. Sullivan,  many newspapers across the nation were unwilling to report on human rights abuses and the events surrounding civil disobedience for fear that they would be financially crushed with libel suits, which had become a favorite weapon of segregationists in the South.  In a decisive victory for the freedoms of speech and press, Justice Brennan’s opinion in that case held that news stories could not be successfully challenged without clear proof of deliberate or reckless falsehood, thus liberating the New York Times and other news agencies to report on the illegal activities of public officials who sought to sustain Jim Crow.

Justice Brennan’s was also the barely visible hand behind the Supreme Court’s acknowledgement in Griswold v. Connecticut  of a constitutional right to privacy, the right that forms the basis of such fundamental freedoms as bodily integrity, including a woman’s right to choose. This right to privacy – the right that each of us enjoys to autonomy over our bodies and over many of the decisions that govern our intimate personal lives – is nowhere specifically spelled out in our founding document’s text, but Justice Brennan rightly understood the Constitution’s text as much more than a laundry list. He wrote, shortly prior to Griswold, that “the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”

Those words were fundamental to Justice Brennan’s view that the Constitution is the greatest tool we have to protect our fundamental rights and to form the basis of a fair and just society, a far more expansive view than one that considers it merely a static proclamation, frozen-in-time, against which we judge balls and strikes.

Recently, I had the privilege of attending the White House swearing-in of the newly confirmed members of the board of the Legal Services Corporation, the main organization that funds legal aid offices across the country.  Supreme Court Justice Anthony Kennedy was doing the honors, and he prefaced the ceremony with a reminiscence of a commencement speech he had heard the great Soviet writer and dissident, Alexander Solzhenitsyn, deliver.  Solzhenitsyn’s theme was a challenge to the rule of law.  Not simply a claim that the rule of law was honored in the breach both in his country and sometimes in ours, but a bolder claim that the rule of law was itself a false ideal, one not worthy of defending.  At the time, Justice Kennedy found himself perplexed.  Later, he realized that the impulse underlying Solzhenitsyn’s complaint was understandable in terms of Russia’s history and culture.  Never having experienced law as an expression of democracy, Solzhenitsyn saw it only as an edict of the state, as the ukase of a ruler.  To him, law represented something cold and unforgiving, the inflexible command of the sovereign, not the protection of those otherwise under the sovereign’s thumb. 

To Justice Brennan, the law was not simply a command but a promise, a promise whose true fulfillment is equal justice. And that promise of justice informed many more of his opinions. His writings for the Supreme Court held that due process requires proof beyond a reasonable doubt in all criminal cases;  that public benefits, including unemployment compensation, may not be made contingent upon the sacrifice of constitutional rights;  and that courts can properly review political district lines and apportionment formulas that politicians create and preserve to ensure their political survival.  

Although many of Justice Brennan’s stirring dissents were destined to become the law of the land, some still echo hauntingly to the present day and leave us with unfinished work.  Among them was his dissent in McCleskey v. Kemp, the case in which a bare Supreme Court majority upheld the Georgia death penalty statute despite overwhelming evidence that it was being applied in a racially discriminatory manner. Unlike five of his colleagues, Justice Brennan was unwilling to view such systemic injustice as inescapable.  He added: ”It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die.  Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.” 

Justice Brennan was right – the reverberations of injustice are never easily confined, and today they often sound deafening in both our criminal and civil justice systems, despite Justice Brennan’s best efforts.  Public defenders' offices are underfunded and overworked. Their annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors, at least 5 to 6 times the ceilings set by the National Advisory Commission on Criminal Justice.    In 2007, some defenders in New Orleans handled 19,000 cases a year, allowing an average of just 7 minutes per case.    The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, or eviction.  To qualify for federally-funded legal assistance, one must earn no more than 25 percent above the poverty level; more than 50 million Americans qualify by that criterion, but over half of those who qualify and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.   The perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class constitute not just a “problem” but a “crisis.”

It’s been less than three months since President Obama and Attorney General Holder asked me to lead the administration's new initiative in search of justice, a search that is at the heart of our national identity and that embodies the aspirations both have repeatedly articulated, much in the spirit of Justice Brennan’s hundreds of opinions.  We certainly have our work cut out for us, but one thing about which I am certain is that it will take all of us – lawyers, judges, labor unions, businesses both small and large, non-profit organizations, politicians, community activists, the Department of Justice and ordinary citizens – to fix the problems in our legal system that seem to many to be insurmountable and, in the end, to fulfill Martin Luther King’s dream that the arc of the moral universe will bend toward justice.

As you know well, Justice Brennan grew up right here in Newark, the son of an Irish immigrant who shoveled coal at the local brewery.  Life was hard and the work difficult, but Newark was and remains a place where the promise of life and the law are lived under the caring and watchful eyes of the whole community. One of the early stories Bill Brennan recounted to his daughter Nancy recalled the time that he fainted as a young teenager on his morning milk route, largely out of sight.  A Good Samaritan went out of his way into the side lot where Justice Brennan had fallen into a snow drift and carried him home, despite the fact that the nation was in the throes of the deadly influenza epidemic that had most people too scared even to approach a stranger.  Justice Brennan taught Nancy that this stranger’s courageous helping hand was an example of what we all must do to build a better community.

The monument that we unveil here today is a reminder, a silent memento of Justice Brennan’s vision of the world – a world in which all of us, regardless of religion or race or class, wealth or gender or sexual orientation, and regardless of whether we, our mothers, or our fathers are immigrants, can gain equal access to justice.  This lofty sentiment formed the stuff of Justice Brennan’s life work, including the 35 years that he served on the Supreme Court.  In the words of the writer Robert Pogue Harrison, “he is leading us his eyes.”

This stunning likeness of Justice Brennan will come to life only if we do more than just remember the great work he did in his lifetime.  It will come to life if we look, through his eyes, to the guardian angels of our better nature – a nature that can see the invisible, hear the inaudible, and touch the spirit of our past, our present, and our future.

Thank you so much.

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