WILLIAM J. BRENNAN, jr., hasnretired from the Supreme Court. Innthree decades on the nation’s highestncourt Brennan did more, perhaps, thannany other American politician exceptnfor Lyndon Johnson to promote thenagenda of the liberal left: the antiwhitenracism of the “Jim Snow” system,nradical feminism, the reduction of thenauthority of the police to combatncrime, the liberation of obscenity, andnthe confinement of religion to a constitutionalnghetto. The means for accomplishingnthese ends? The massive expansionnof federal power in general,nand of the power of the federal courtsnin particular, at the expense of thenlawmaking authority of Congress andnthe state legislatures.nAt least Johnson went to the troublenof persuading Congress to pass laws.nBrennan, J. and the majorities he assemblednin the heyday of the Warrenn(really the Brennan) Court simplyngrandfathered their nostrums on thenConstitution. “He simply is one of thenmost important figures of the latter halfnof the 20th century,” Stanford lawnprofessor Gerald Cunther gushed tonNewsweek. Among the legacies of thisnworld-historic liberal statesman:(the exclusionarynrule, which forbids the usenof evidence gathered during a warrentlessnsearch; relaxed rules governingnpress libels of public figures; and thenstrict “one-man, one-vote” standardnfor legislative redistricting. Thanks tonthese Warren Court decisions orchestratednby Brennan, criminals find itneasier to walk free on technicalities,nable people who do not want everyndetail of their lives reported by thenpress have abandoned governmentnservice to plain-vanilla nonentities andnbold-faced deviants, and federal judgesnand government attorneys draw andnredraw state and congressional districtsnwith as much concern for local selfdeterminationnas the dynasts who partitionednSilesia. Among Brennan’s finalngifts to the American people are thenlatest opinion protecting desecrators ofnthe flag, and another recent holdingnCULTURAL REVOLUTIONSnthat the federal government may engagenin racial discrimination in awardingnbroadcast licenses, as long as itndiscriminates against white people.n”At the core of the process of governmentnerected by the framers —nunwieldy, imperfect, wearisome,nsometimes maddening — lay a profoundnvision of justice, and [it is] thenduty of the Court to make that vision anreality for the least of men,” the presumablynwieldy, perfect, and nevernwearisome Brennan wrote last year.n”The genius of the Constitution restsnnot in any static meaning it might havenhad in a wodd that is dead and gone,nbut in the adaptability of its greatnprinciples to cope with current problems.”nIf the explicit provisions of thenConstitution conflict with its “vision ofnjustice,” its “great principles,” as divinednby a committee of lawyer-sibyls,nthen so much the worse for the Constitution.n”The fatal constitutional infirmitynof capital punishment is that itntreats members of the human race asnnonhuman, as objects to be toyed withnnnand discarded,” says Brennan. But thenConstitution expressly allows capitalnpunishment, as its references to capitalncrimes and “jeopardy of life or limb” innthe Fifth Amendment show. If wenaccept Brennan’s theory, then thenConstitution is — unconstitutional.nThis is not broad construction; it is notnconstruction at all; it is oneifomancy.n”Justice delayed — till the Justice resigned,”nconservatives may observenwith pleasant anticipation. Althoughnthe liberal triumvirate on the SenatenJudiciary Committee, Kennedy, Biden,nand Metzenbaum, may try ton”bork” David Souter, Bush’s nomineento replace Brennan on the Court,nSouter has left no “paper trail,” havingnsaid and written almost nothing controversialnor significant between lawnschool and the age of 50. Looking fornthe most unobjectionable nominee hencould find, to prevent the confirmationnhearing from turning, like those ofnBork and Cinsberg, into an auto-da-fe,nBush has found Barfleby the Scrivener.nThe sailing still may not be smooth;nOCTOBER 1990/5n