Stephen Wermiel (A '72), author of the new biography "Justice Brennan: Liberal Champion," will tonight join a panel of speakers at Tufts to discuss the Supreme Court's evolution over the past two decades.
Wermiel, a law professor at American University Washington College of Law, is joined on the panel by intellectual property attorney Emily Woodward (LA '96), who also teaches an Experimental College (ExCollege) class, and former William J. Brennan law clerks John Savarese and Dean Hashimoto. University President Lawrence Bacow will moderate the discussion on what Brennan might have thought about the current Supreme Court.
The event, sponsored by the ExCollege, will take place at 7:30 p.m. tonight in Barnum 104. The Daily earlier this week spoke with Wermiel by phone to discuss his newest work. Daphne Kolios: Could you give a summary of your book, what it touches on and its key points? Stephen Wermiel: Justice William Brennan was on the Supreme Court for 34 years, from 1956 to 1990, and in that period, the book suggests he was maybe the most influential justice of the 20th century in shaping everything from our notion of the constitutional right to privacy to our notion of free speech, affirmative action, debate about the death penalty. … He really played a central role in shaping how we think about all of those things.
The book suggests his influence and continued legacy — he's been gone from the court for 20 years, but in a lot of ways, he's still shaping how we think about those things. DK: How did you know Justice Brennan? SW: I was introduced to him by a mutual friend … and I think Justice Brennan had talked to him about having a biography. This began in 1986, when Brennan was turning 80 and had been on the court for 30 years, and so he was very interested, I think, in beginning to think about what his legacy would be — how he would be remembered. So he was looking for a biographer, and I was lucky enough to be in the right place at the right time. DK: You started it while he was still alive — I would think that's rather unconventional for a biography? SW: The most amazing part of it is that he gave me access during his last four years on the court — he gave me virtually unlimited access to his office, to his files, to everything going on in his office, and he sat with me for 60 hours of tape−recorded interviews during that four−year period. That's rather unprecedented for someone to do that, for any kind of biography, and it's totally unprecedented for a Supreme Court justice to give anyone that kind of access. DK: What was the best part about having such open access, and what did you learn that you would not have otherwise been able to? SW: There's a personal aspect to that and a broader aspect. … At that point when I started in 1986, I had been writing about the Supreme Court for the Boston Globe and The Wall Street Journal for maybe about eight years. … It was a remarkable moment to ask the questions [I'd] always wanted to ask and then have someone sitting there able to answer them. … Some writing about the court gives the image of the justices roaming about the halls, trading jokes, slapping each other on the back. … I learned that the court operated in a more thoughtful and serious process. It's what you'd want the Supreme Court to be doing, but not necessarily what you thought they were doing. DK: How long did it take you to write the book? SW: Forever. Actually, forever and longer than that. I started the book in 1986, and so it has been 24 years. ... I put it down for a long time, for various reasons. … In 2006, I decided that I really needed to get it done, and I decided to take on a co−author. DK: Would you say that when you first started, it was more the compilation of information with Brennan, and after that, it was more writing? SW: In 1986, Brennan said he didn't want the book published while he was still sitting on the court … and so I didn't even think about writing the book till he retired in July 1990. I had asked him to give me advance warning … and he called me at 7:30 in the morning [of the day] he decided to retire. …
And the other part, which is sort of selfish, but I admit it, is that this was the most remarkable learning experience I've ever had in my life, and I didn't want it to stop. If I started writing the book, it would mean that the exploration was over, and I didn't want it to be over. DK: Is there anything that readers would find surprising in your book? SW: You began to have people talking about Brennan the liberal activist, who just handled his personal views as a judge. With that background in mind, one of the discoveries we made was that Brennan was actually more of a conservative person privately than the public judge that we saw, and there are several examples of that.
There has probably never been in the history of the Supreme Court a greater defender of freedom of the press. … But what we discovered was, privately, he really distrusted the press — he didn't like reporters, he had a couple of run−ins with reporters — actually shoved one of them. He recognized the importance of free press to a democratic society, but he didn't necessarily want them in his life. DK: Why do you think that this study, and what Justice Brennan did, is important to society and the Supreme Court today? SW: I don't think I could have done a better job of [timing] — it's a fluke, but probably the two most interesting cases the Supreme Court is deciding this term are two free speech cases, both of which very heavily involve examining free speech from the standpoint of what Justice Brennan left us. One of the cases is the dispute over whether this church from Kansas can protest at the funerals of soldiers who died in Iraq. … Justice Brennan really led the courts in the view that if we're really going to have free speech in society, the way to respond is to speak back, but not to prohibit.
[In the second case], the state of California decided to ban the sale or rental to minors of violent video games. So the Supreme Court is deciding whether that is violating the First Amendment right of video game producers and minors, and the issue in that case focuses substantially on the commitment Justice Brennan wrote on in 1968, in which he said that sexually explicit material that could be sold to adults perhaps could be prohibited from being sold to minors. California now wants the Supreme Court to extend that opinion and make it apply to violent material. So their whole argument is that Brennan's opinion from 1968 should be expanded to apply to ban the sale of violent video games. I think it suggests how relevant Brennan still is.
