Justice Brennan Remarks

Remarks of Justice David H. Souter at the Funeral Mass for Justice Brennan, July 29 1997 

One thing we are not doing here today is saying goodbye to William Brennan, the Justice. It is true, the life of the man is over; so is the liberal era when Justice Brennan’s voice was the voice of the Supreme Court. But the law as he saw it will transcend his own time, and only the Lord can know when the Court and the country will come to final terms with Justice Brennan’s reading of the American Constitution. He has left so much to be dealt with.

When he came to the Court in 1956, the reports of the decisions were up to 351 bound volumes; when he left, the number had increased by 146 more. 1,360 of the opinions set out in those books are his, and they cover just about every subject of any importance.

If we have reason to look again at the constitutional limits of the libel law, our starting place will be a statement by Justice Brennan. When we have to think about the obligation of the administrative state to treat people with decency, we will start with a view of due process whose classic formulation was written by him. And the next time we ask whether regulation has gone so far as to become a taking of property, we will turn to a Brennan opinion.

If our next decision is meant to follow the course he set, we will reach out to him, and if we will not accept his direction we will have to grapple with him. But year after year, in subject after subject of the national law, we will either accept the inheritance of his thinking, or we will have to face him squarely and make good on our challenge to him. And so there are no goodbyes to be said now to William Brennan the Justice; we shall deal with him many times again.

But our friend Bill Brennan is gone from us. His leave taking was exact in time and place, and to our friend we do have to say a farewell. The hard thing is not just to speak the words but to speak words that can do justice to friendship as immoderate and as prodigal as Bill Brennan’s friendship was. He made us members of a huge family by adoption, and when we were with him every one of us always felt like the favorite child.

That was how it was with me. I’d stick my head in his chamber door and he’d look up and say, "Get in here, pal," and when I was ready to go he’d call me pal again. He wouldn’t just shake my hand; he’d grab it in both of his and squeeze it and look me right in the eye and repeat my name. If he thought I’d stayed away too long, he’s give me one of his bear hugs to let me know that I’d been missed. While I was with him, he might tell me some things that were true, like how to count to five. And he might tell me a few things that were patently false, which he thought I might like to hear anyway. He’d bring up some pedestrian opinion that I’d delivered, and he’d tell me it was not just a very good opinion but a truly great one, and then he’d go on and tell me it wasn’t just great but a genuine classic of the judge’s art. And I’d listen to him, and I’d start to think that maybe he was right. Maybe it was pretty good. And then, inevitably, I’d know it wasn’t, but I’d still feel great myself. I always felt great when I’d been with Bill. I bet you did, too. You remember how it was. We all remember. That’s why the good-bye comes so hard.

How do we say farewell to the man who made us out to be better than we were, and threw his arms around us in Brennan bear hugs, and who simply gave his love to us as the friends he’d chosen us to be? I can only say it the way I learned from him. When I’d been to see him in his chambers and it was time to go, I’d turn when I got to the door and look back. He’d say, "So long, pal," and I’d give him a waive and say, "So long, Bill."