Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P13 docx

reform by serving as unpaid counsel in several PUBLIC INTEREST cases. Brandeis was on e of the first U.S. lawyers to offer pro bono services (free legal services for people unable to afford an attorney). Along with a passionate belief in the virtue of volunteer legal work, Brandeis had a sense of fairness that compelled him to compen- sate his firm for any time spent in public service. Brandeis worked without a fee to fight monopolistic streetcar franchises in Boston and to improve the questionable practices of life insurance companies. One of his most satisfying achievements was the creation of a savings bank plan that enabled people to obtain life insurance at reasonable rates. Brandeis also argued for the constitutionality of maximum hour and MINIMUM WAGE laws. In 1914 Brandeis published Other People’s Money—and How the Bankers Use It, a denun- ciation of trusts and investment banking. The book helped inspire important antitrust legisla- tion and earned the antipathy of many U.S. bankers and businesspeople. Brandeis also created a new style of legal writing, appropriately called the Brandeis brief. With his sister-in-law Josephine Goldmark, of the National Consumer ’s League, Brandeis produced the first legal brief to include copious supporting data. For Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908), Brandeis wrote more than one hundred pages in favor of an Oregon state law mandating a maximum ten-hour workday for women. Later, when asked for an appropriate title for the seminal Muller brief, Brandeis replied, What Any Fool Knows. In the document, he described the deleterious physical and mental effects on women of extended periods of manual labor. He included references to sociology, psycholo- gy, history, politics, employment statistics, and economics; this method of amassing data from several different disciplines to persuade the court became popular with other lawyers. The legal principles of the case were discussed in about two pages. In 1916 Brandeis was appointed by Presi- dent Woodrow Wilson to fill the associate justice seat vacated by JOSEPH R. LAMAR. Brandeis thus became the first Jewish American to be nominated for the High Court. His Senate confirmation hearing was a bitter, drawn-out affair because of business’s fierce opposition to him and his progressive politics. Anti-Semitism was also an element in the extended, four-month proceedings. Despite virulent criticism from insurance and banking officials, Brandeis was confirmed by the Senate, 47–22. As a Supreme Court justice, Brandeis is remembered for his eloquent dissents, often joined by colleague Oliver Wendell Holmes Jr. Brandeis’s dissents frequently signaled how the Court would rule in future cases. For example, his 1928 dissent in OLMSTEAD V. UNITED STATES , 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, anticipated the reasoning and outcome of a Supreme Court case heard years later. In Olmstead, Brandeis objected to the nearly unrestricted use of government wiretaps. Al- though the Olmstead majority approved state WIRETAPPING unless a physical trespass was involved, Brande is considered wholesale eaves- dropping unconstitutional. In his view it violated the FOURTH AMENDMENT,prohibitingunreasonable government searches, and the FIFTH AMENDMENT, forbidding the deprivation of liberty without due process. Brandeis argued that the right to be left alone was guaranteed by the Constitution. Almost forty years later, his views on privacy were adopted in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, relying heavily on Brandeis’s reasoning, the Court overturned Olmstead, ruling that government wiretaps were permissible only if they met procedural requirements of the Fourth Amendment. Despite his own clear convictions, Brandeis refused to declare a law uncon stitutional simply because he disagreed with it. Particularly in economic matters, Brandeis exercised judicial restraint by deferring to Congress and its legisla- tive power. Brandeis was an ardent defender of civil liberties. Throughout his career, he strongly urged the Court to use the FOURTEENTH AMEND- MENT to apply the BILL OF RIGHTS to the states. In particular, Brandeis declared that laws abridging free speech and assembly must be challenged if no emergency exists to justify them. Unless speech causes clear and imminent danger, it is unreservedly protected. Although Brandeis was a nonobservant Jew, he was a respected leader of the American Zionist movement. From 1914 to 1921, Brandeis gave his name and public support to the movement to create a Jewish state in Palestine. In his later GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 108 BRANDEIS, LOUIS DEMBITZ years Brandeis advised President FRANKLIN D. ROOSEVELT on the establishment of a Jewish homeland and the BOYCOTT of German products. Brandeis retired from the Court on Febru- ary 13, 1939. He died at age 84 on October 5, 1941. Brandeis was honored in 1948 when a new institution of higher learning was named after him. Brandeis University is a private, Jewish- sponsored, coeducational college in Waltham, Massachusetts. The nonsectarian school offers both undergraduate and graduate degrees. FURTHER READINGS Baskerville, Stephen W. 1994. Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis. Ruther- ford, NJ: Fairleigh Dickinson Univ. Press. Bracey, Christopher A. 2001. “Louis Brandeis and the Race Question.” Alabama Law Review 52 (spring). Goodhart, Arthur L. 2000. Five Jewish Lawyers of the Common Law. Clark, NJ: Lawbook Exchange. Schroeder, Mary Murphy. 2000. “The Brandeis Legacy.” San Diego Law Review 37 (summer). Strum, Philippa S. 1999. “The Unlikely Radical: After a Violent Strike Shattered Louis Brandeis’ Assumptions About the Legal System, He Transformed His Practice and Became the Country’s Most Influential Public Interest Advocate.” American Lawyer 21 (December). CROSS REFERENCES Antitrust Law; “Brief for the Defendant in Error, Muller v. Oregon” (Appendix, Primary Document); Electronic Sur- veillance; Olmstead v. United States; Privacy; Wiretapping. BREACH OF MARRIAGE PROMISE A common-law right of action for breaking a commitment to enter into matrimony. The RIGHT OF ACTION for breach of a MARRIAGE promise has been abolished in a majority of states. Agreement to Marry An agreement to marry is different from all other contractual relations. The reason for this is that both its object and the relationship created between the parties are completely different from those of any other contract. In order to recover for breach of promise, the PLAINTIFF must establish that the two parties had a valid existing contract to marry. This can be accom- plished by a showing that both parties had a clear intent for the agreement to be binding. If the parties to a contract to marry are incapable of creating a valid agreement due to a legal disability, a lawsuit for breach of marriage promise cannot be sustained. Generally, a valid defense to such an action is the infancy of the promisor at the time of the agreement. The infancy of the promisee, however, is not a valid defense. Statutes provide the ages of infancy. An individual who is incapable of making a contract due to in competence will not be held liable for breach of promise. Similarly, a promise to marry someone who is already married is invalid, provided the promisee knew this fact. When the plaintiff was unaware that the promisor was already married, however, he or she may recover. Upon the legal termination of the marriage by DIVORCE, ANNULMENT,or death of the former spouse, a DEFENDANT who breaches a promise to marry the plaintiff may be held liable. A breach of contract action cannot be maintained when a marriage would be unlawful due to INCEST. Offer and Acceptance Fundamental elements to the creation of a marriage contract are an offer and acceptance. It is not necessary that the offer be in formal language. The key requirement is that both parties comprehend that there was a clearly intended offer of marriage. A statement of the intention to marry to a third person, absent any other indicated intent, is not enough. An acceptance of an offer to marry must be given within a reasonable period of time. Such acceptance need not be formal but may be implied from the promisee’s behavior. For a marriage contract to be enforceable, there must be a showing that there has been a meeting of the minds of the individua ls to the agreement. A promise to marry induced by DURESS is in valid. Similarly, a promise to marry made by FRAUDULENT inducement—or fraudu- lent concealment of facts that would prevent the making of the agreement if revealed or disclosed—will render the promise invalid and relieve the innocent party from all LIABILITY. A promise to marry must be based upon legal consideration. Generally, one individual’s promise is adequate consideration for the promise of the other party. A promise to marry must not be based solely upon illegal or immoral consideration, such as sexual relations between the parties. A promise based upon legal consideration will not, however, be vitiated merely because unlawful sexual intercourse GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BREACH OF MARRIAGE PROMISE 109 took place between the parties either prior to or following the promise. If a promise to marry is conditional, liability for its breach will arise only following the performance or occurrence of the agreed condition. A contract to marry may be manifested by many promises made at diff erent times; howev- er, there is only a single contract, and only a single breach can take place. A contract to marry can be rescinded either by mutual consent of the parties or in instances of FRAUD or duress. The consent to postpone a marriage alone does not constitute a release of the obligation to perform it. Breach Unless there is a legally justifiable reason, an unwillingness to perfo rm one’s promise to marry creates a breach of promise to marry. Mere postponement of the wedding does not constitute a breach unless it is done arbitrarily and for no good reason. In such case, the postponement can be regarded as equivalent to a refusal to comply with the marital promise. Defenses Defenses exist other than the invalidity or termination of the marriage contract and lack of capacity. The invalidity of the plaintiff’s divorce from a former spouse may be used as a defense only if the issue of the divorce is raised on the ground that there was a lack of jurisdiction on the part of the court to permit the divorce. If the plaintiff had an invalid divorce, the defendant cannot be held liable for breach of the marriage promise because the plaintiff was still lawfully married to his or her former mate and, therefore, could not validly contract a marriage with the defendant. A valid defense to a breach of marriage promise is the plaintiff’s refusal to marry the defendant. The defendant cannot later defend himself or herself on the basis of the fact that he or she subsequently offered to marry the plaintiff. The engagement of the plaintiff to another individual at the time of entering into a contract with the defendant is not a defense. Similarly, the marriage of the plaintiff to another party subsequent to the defendant’s breach does not excuse the defendant of liability for a breach. Unattractive personality traits, or offensive conduct, such as DRUNKENNESS, cannot be used as a defense. When the objectionable behavior amounts to a FELONY, howev er, it can be used as a defense against the plaintiff in a breach of marriage promise action. Generally, a defendant will successfully defeat an action by alleging physical incapacity or disease that makes it either unsafe or improper to enter into marriage. If a defendant has knowledge of the disability when he or she promises to marry the plaintiff there is no defense. A disability on the part of the defendant that would not interfere with the marital relationship is insufficient to relieve a defendant of his promise. Damages The nature and form of an action for breach of marriage promise is contractual. Recoverable damages include COMPENSATORY DAMAGES for injury to the feelings and health of the plaintiff as well as to his or her reputation. A plaintiff may also recover damages for any financial loss resulting from the breach, comparable to the recovery in a breach of any other contract action, in addition to compensation for loss of advantages that would have stemmed from a marital relationship with the defendant. FURTHER READINGS Hirshman, Linda, and Jane Larson. 1998. Hard Bargains: The Politics of Sex. New York: Oxford Univ. Press. Tushnet, Rebecca. 1998. “Rules of Engagement: Laws Regarding Broken Marital Engagements.” Yale Law Journal 107 (June). Wallman, Lester, and Sharon McDonnell. 1994. Cupid, Couples, and Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce. Sandy, OR: Mas- termedia. CROSS REFERENCES Divorce; Irretrievable Breakdown of Marriage; Marriage. BREACH OF THE PEACE A comprehensive term encompassing acts or conduct that seriously endanger or disturb public peace and order. A breach of the peace was a common-law offense, but is presently governed by statute in many states. It is frequently defined as consti- tuting a form of DISORDERLY CONDUCT. Examples include using abusive or OBSCENE language in a public place, resisting a lawful arrest, and trespassing or damaging property when accom- panied by violence. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 110 BREACH OF THE PEACE Statutes commonly require that conduct constituting a breach of the peace must be clearly a type of misbehavior resulting in public unrest or disturbance. As an example, a prostitute who solicited men walking by on a public street from her window was found guilty of breaching the peace, but a man who raised his voice to a police officer while the officer was issuing a ticket to him w as not guilty of the same offense. A breach of the peace is synonymous with a DISTURBANCE OF THE PEACE. Jurisdictions that do not have a specific statutory provision for the offense may punish it as a form of disorderly conduct. The usual penalty imposed is either a fine, IMPRISONMENT, or both. BREAKING To use physical force to separate or damage a solid obje ct. When used in criminal statutes as an element of BURGLARY or HOUSEBREAKING, to forcibly remove anypartofahousethatprotectsitfrom unauthorized entry such as locks, latches, win- dows, or doors, to gain access to the house with the intent to commit a crime; to use force or violence in escaping from a hous e after a FELONY has been committed or attempted therein. The slightest physical force—for example, lifting a latch, releasing a bolt, or opening an unlocked door or window—is enough to consti- tute breaking. v BRECKENRIDGE, JOHN John Breckenridge served as the fifth attorney general of the United States and was the second of three attorneys general who served under President THOMAS JEFFERSON. Breckenridge was born on December 2, 1760, in Augusta County near Staunton, Virginia. He attended Augusta Academy, now known as Washington and Lee University, and later transferred to the College of William and Mary located in Williamsburg, Virginia. One of his professors at William and Mary was GEORGE WYTHE, a distinguished teacher and scholar who counted JOHN MARSHALL, HENRY CLAY, and Thomas Jefferson among his students. At age 19, the ambitious Breckenridge was elected to the Virginia House of Delegates in 1780 but was not permitted to take the position because of his youth. Breckenridge served in the Virginia MILITIA during the Revolutionary War. Afterwards he studied law under the tutelage of a Virginia lawyer, and he was admitted to the Virginia bar in 1785. Breckenridge established a law practice in Charlotte, Virginia, and re-entered the poli tical arena. In 1792, he was elected to the U.S. House of Representatives of the Third Congress. Before his congressional term commenced, he resigned his seat in order to move to Lexington, Kentucky. The following year, Breckenridge established a law practice in Lexington and once again turned to politics. He ran for a U.S. Senate seat in 1794 and was defeated, but he was appointed attorney general for the state of Kentucky in 1795. He served until 1797, when he resigne d his position to make a successful run for the U.S. House of Representatives. Breckenridge was elected to Congress in 1798 and became speaker of the house in 1799. Breckenridge, a Republican, ran for the senate and was elected in 1800. Taking office in 1801, Breckenridge strongly supported Presi- dent Thomas Jefferson. Several times Breck- enridge introduced as his own legislation bills that Jefferson had drafted, a maneuver that did not always meet with success. One bill, which John Breckinridge 1760–1806 ▼▼ ▼▼ 17501750 18251825 18001800 17751775 ❖ ◆ ◆ ◆ ◆ ❖ 1760 Born, Augusta County, Va. (near Staunton) 1780 Elected to Virginia House of Delegates but was too young to serve 1775–83 American Revolution 1789 U.S. Constitution ratified 1803 U.S. purchased Louisiana Territory 1785 Admitted to the Virginia bar 1801–05 Served as U.S. Senator for Ky. 1806 Died, Lexington, Ky. 1805–06 Served as U.S. attorney general GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BRECKENRIDGE, JOHN 111 was rejected by some who viewed Breckenridge as a mouthpiece for the president, would have allowed Jefferson and the territorial governor to rule the newly purchased Louisiana Territory by EXECUTIVE ORDER. Breckenridge also advocated the IMPEACH- MENT of John Pickering and SAMUEL CHASE ,two federal district court judges who had ties to the rival FEDERALIST PARTY. Pickering, who had ALCOHOL and mental problems, was removed. The move to IMPEACH Chase was more patently political: Chase had cast accusations that the supporters of Jefferson were atheists and had made other anti-Republican remarks from the bench. Though the House voted to impeach Chase, the Senate voted by a narrow margin to ACQUIT him. By refusing to allow political state- ments to be considered within the rubric of high crimes and misdemeanors, the Senate strengthened the concept of an independent judiciary. Jefferson ran again for presiden t in 1804. After rejecting the bid of AARON BURR for a second term as vice-president, the Republicans briefly considered Breckenridge for the position. He lost to Democrat George Clinton. Breckenridge’s ardent support of Jefferson and his political ambitions were rewarded when Jefferson appointed Breckenridge U.S. attorney general. At the time, the position was part-time, and Breckenridge was able to continue spending many of his days in Lexington, Kentucky. Brec kenridge held the position of attorney general until his death in Lexington on December 14, 1806. FURTHER READINGS Eicher, John H., and David J. Eicher. 2001. Civil War High Commands. Palo Alto, CA: Stanford Univ. Press. Hall, Kermit L. 2008. The Magic Mirror: Law in American History. 2d ed. New York: Oxford Univ. Press. Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: GPO. Available online at http://www.usdoj.gov/ag/attygeneraldate.html; website home page: http://www.usdoj.gov (accessed July 8, 2009). CROSS REFERENCES Attorney General; Je fferson, Thomas; Republican Party. v BREESE, SIDNEY Sidney Breese was born July 15, 1800, in Whitesboro, New York. He graduated from Union College in Schenectady, New York, in 1818. Breese was admitted to the Illinois bar in 1820 and concentrated his career efforts in that state. In 1821 Breese was appointed postmaster of Kaskasia, Illinois. From 1822 to 1826 he served as prosecuting attorney for the Illinois CIRCUIT COURT , and from 1827 to 1829 he performed the duties of federal DISTRICT ATTORNEY. In 1831 he published Breese’s Reports, a compilation of the decisions of the Illinois Supreme Court from 1820 to 1831. In 1832 Breese fought in the Black Hawk War, which was a conflict between the white settlers of Illinois and the Sac and Fox Indians. After the war Breese resumed his legal career. In 1835 Breese was selected as a judge for the Illinois Circuit Court and he remained on the bench until 1841. From 1841 to 1842 he served as justice of the Supreme Court of Illinois. Breese’s career continued to be varied during the latter part of his life. He was elected to the United States Senate in 1843, and represented Illinois until 1849. During his senatorial term, from 1845 to 1849, he also acted as administrator of the Smithsonian Institution. In 1850 he became a member of the House of Representatives of Illinois. In 1857 Sidney Breese 1800–1878 ❖ ❖ 1775-1783 American Revolution 1800 Born, Whitesboro, N.Y. ◆ ◆◆ ◆ ◆ ◆ ◆ 1822–26 Served as prosecuting attorney for Illinois Circuit Court 1827–29 Served as federal district attorney 1843 Elected to U.S. Senate 1841 Selected as a justice of the Supreme Court of Illinois 1850 Elected to the U.S. House of Representatives 1861–65 U.S. Civil War 1857 Selected again to Illinois Supreme Court judgeship 1878 Died, Pinckneyville, Ill. 1876 Granger Cases decided 1873 Became chief justice of the Illinois Supreme Court 1869 Origin and History of the Pacific Railroad published ▼▼ ▼▼ 18001800 17751775 18251825 18501850 18751875 19001900 WITH NATIONS, MIGHT IS TOO COMMONLY REGARDED AS RIGHT . —SIDNEY BREESE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 112 BREESE, SIDNEY he was again selected to act as justice of the Supreme Court of Illinois. He served on the bench until 1878, becoming chief justice of this court in 1873. In 1876 Breese was responsible for the noteworthy court decision in the so- called Granger Cases, specifically Munn v. Illinois, 69 Ill. 80, by deciding in favor of states’ rights in the regulation of grain elevators. This ruling was upheld by the U.S. Supreme Court the follow ing year. 94 U.S. 113 (1877) . As an author, Breese gained prominence with the publication in 1869 of Origin and History of the Pacific Railroad. He died June 27, 1878, in Pinckneyville, Illinois. v BRENNAN, WILLIAM JOSEPH, JR. William Joseph Brennan Jr. was the first Roman Catholic appointed to the Supreme Court; he served as associate justice of the Court from 1956 to 1990. His unshakable belief in the Constitution as the guardian of individual rights and liberties garnered both respect and criticism. Brennan was born April 25, 1906, in Newark, New Jersey. He was the second of eight children of William Joseph Brennan and Agnes McDermott Brennan, Irish immigrants who settled in Newark in the 1890s. His father worked as a coal shoveler in a brewery and, according to Brennan, was the most influential person in Brennan’s life. He was also a labor leader and municipal reformer who imbued Brennan with a profound social conscience and an affinity for activism. Brennan received his early education in Newark public schools, and attended the Wharton School of Finance and COMMERCE,at the University of Pennsylvania, where he received his bachelor of science degree, cum laude, in 1928. He earned a scholarship to Harvard University Law School, where he studied under FELIX FRANKFURTER, who would later be his colleague on the Supreme Court. Brennan graduated near the top of his class in 1931. He began his legal career in 1932 with the Newark law firm of Pitney, Hardin, and Skinner. The firm later added Bren nan as a partner and became Pitney, Hardin, Ward, and Brennan. He specialized in LABOR LAW and showed a unique talent for successfully ▼▼ ▼▼ William Joseph Brennan Jr. 1906–1997 19001900 19501950 19751975 20002000 19251925 ❖ ❖ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War 1914–18 World War I 1906 Born, Newark, N.J. 1949 Appointed to New Jersey Superior Court 1950 Appointed to New Jersey Appellate Court 1931 Graduated from Harvard Law School ◆◆ ◆◆◆ ◆ ◆ ◆ ◆ 1928 Received B.S. degree from Wharton (U. Penn) 1956 Nominated to U.S. Supreme Court by President Eisenhower 1952 Nominated to the New Jersey Supreme Court 1962 Wrote majority opinion for Baker v. Carr 1972 Furman v. Georgia invalidated existing capital punishment statutes 1990 Retired from the Court 1997 Died, Arlington, Va. William J. Brennan Jr. PHOTOGRAPH BY ROBERT S. OAKES, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION BRENNAN, WILLIAM JOSEPH, JR. 113 negotiating employer-employee disputes. Dur- ing WORLD WAR II, Brennan served in the U.S. Army and eventually became the labor branch chief, Civilian Personnel Division of Army Ordnance. He rose to the rank of colonel and was awarded the Legion of Merit for services to the Army and Army Air Forces procurement programs. After his army service, Brennan returned to private practice, counseling large manufacturing corporations on labor matters. In 1949 he was tapped by New Jersey’s Republican governor to serve on the state’s superior court. Assigned to the APPELLATE division, he distinguished himself by implementing reforms that relieved conges- tion in the court calendar. He was appointed to the New Jersey Supreme Court, and took his seat on Ma rch 24, 1952. While there he helped institute a PRETRIAL CONFERENCE system that shortened and simplified trials and encouraged settlements, resulting in fewer and speedier trials. Brennan had served only four years on the New Jersey Supreme Court when, to the surprise of everyone, including Brennan, Presi- dent DWIGHT D. EISENHOWER no minated him to serve on the U.S. Supreme Court. Eisenhower, a Republican, would later regard his appointment of the liberal Democrat as one of his worst mistakes, along with his earlier appointment of Chief Justice EARL WARREN. Together, Brennan and Warren led the Court into an unprecedent- ed era of judicial activism that was anathema to conservatives such as Eisenhower. Brennan quickly established himself as a staunch supporter of the rights and liberties guaranteed by the Constitution. He insisted that the BILL OF RIGHTS applies to all U.S. citizens, whether of the lowest or the highest stature. Brennan invited controversy with his view that the Constitution’sguaranteesmustbeconstantly evolving. Said Brennan, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.” Brennan’s broad interpretation of the Con- stitution put him at odds with more conservative court members who construe the Constitution as narrowly as possible and attempted to ascertain the ORIGINAL INTENT of the drafters. Conservatives believe that if a right or freedom is not clearly conferred by the Constitution or by judicial precedent, it is not the job of the Court to try to find it there. They place the burden on the individual to show that the right or protection sought exists. Conversely, like- minded liberals (and Brennan was one) ap- proach a case by asking whether anything in the Bill of Rights explicitly prevents the Court from finding that the right or protection exists, and they look to the government to prove that the right does not exist. Ironically, when a case involves the use of government power, the opposing groups tend to adopt each other’s philosophy: Conservatives ask whether anything in the law prevents the exercise of the power, and liberals ask whether the power is explicitly allowed by the Constitution or some other statute. In spite of his single-minded determination to read the Constitution as broadly as possible, Brennan often acted as a mediator between the liberal and conservative wings of the Court. A warm and charming man who was univers ally well liked, he used his formidable in tellectual and technical skills in tandem with his innate diplomacy to build coalitions on some of the most divisive issues of the time. “You cannot dislike this man on a personal level, no matter how destructive he’s been to the values you hold dear,” declared Charles J. Cooper, assistant attorney general under President RONALD REAGAN and an ideological archenemy of Brennan. Brennan was respected by friends and adver- saries alike. In fact, although he was a lifelong Democrat, his appointments to the judiciary were recommended by conservative Republicans. It is impossible to overstate the effect Brennan had on the LAW OF THE LAND from 1960 to 1990. He was the architect of pivotal decisions that shaped U.S. life during those years, including Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, a 1972 decision that struck down a law prohibiting the distribution of contraceptives to unmarried women. Brennan recognized a constitutional “right to privacy” protecting “the decision whether to bear or beget a child.” His reasoning in Eisenstad t became the foundation for ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that removed many barriers to legal abortions. Early in his career Brennan wrote the majority opinion in BAKER V. CARR , 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), which allowed federal courts to hear challenges to legislative APPORTIONMENT and paved the way for “LAW CANNOT STAND APART FROM THE SOCIAL CHANGES AROUND IT .” —WILLIAM BRENNAN JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 114 BRENNAN, WILLIAM JOSEPH, JR. later Supreme Court cases establishing the concept of ONE PERSON, ONE VOTE. In New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), Brennan wrote that the FIRST AMENDMENT protects the press from libel suits brought by public officials, unless actual malice is proved. He extended the FIFTH AMENDMENT right against SELF-INCRIMINATION to prohibit mandatory registration of Communist party members in Albertson v. Subversive Activi- ties Control Board (382 U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d 165 [1965]). Brennan found that the Constitution pro- hibits unequal treatment based on race, age, or gender, in a number of decisions, including IN RE WINSHIP (establishing use of the REASONABLE DOUBT standard for juveniles); FRONTIERO V. RICHARDSON (extending constitutional scrutiny to gender-based classifications); and Craig v. Boren (declaring that gender-based classifications are unconstitutional unless they are substantially related to the achievement of an important government objective) (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]; Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]; and Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 [1976]). Brennan was a strong be liever that AFFIRMA- TIVE ACTION was a way to remedy past discrimi- nation, and he wrote numerous opinions on the subject. In United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984), the Court held that it is lawful for employers to adopt voluntary affirmative action programs that are race conscious. Brennan wrote the opinion that upheld limited preferential treatment on the job for women and minorities in Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), and found in United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987), that a one-black-for-one-white promotions quota did not violate the Constitu- tion. Finally, in one of his last opinions on affirmative action, Brennan wrote that the Constitution permits preferential treatment of minorities in the awarding of FCC broadcast licenses (Metro BROADCASTING v. FCC, 497 U.S. 547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 [1990]). Brennan was an adamant defender of free expression even for the most reprehensible words or acts. In TEXAS V. JOHNSON (491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]) and in United States v. Eichman (496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 [1990]), he wrote opinions invalidating statutes that banned flag desecration, on the grounds that they violated the First Amendment. Although recog- nizing the “special place reserved for the flag in this Nation,” he stated, “we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents” (Johnson). He was also an ardent defender of the rights of children, declaring that we must teach young people “that our Constitution is a living reality, not parchment preserved under glass.” He was appalled by cases in which the Court seemed to hold that the Bill of R ights does n ot apply to schoolchildren, and wrote in one dissent that the majority’s decision had given school officials the license to act as “thought police” and taught the students “to discount important principles of our government as mere platitudes” (Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 2 60, 285, 290, 108 S. Ct. 562, 577, 580, 98 L. Ed. 2d 592 [1988]). Brennan earned the highest praise as well as the harshest criticism from his opinions in cases involving the rights of the accused. He stead- fastly opposed the use of CAPITAL PUNISHMENT, labeling it state-sanctioned killing, and in one of his final decisions on the Court, he voted against an execution by the state of Virginia. Taking human life, he said, “is God’s work, not man’s.” When that statement was dismissed as mere sentimentality, he replied, “The most vile MURDER does not, in my view, release the state from constitutional restraints on the destruction of human dignity The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded.” Brennan’s critics pointed out that his opposition to the death penalty did not seem in harmony with his support of women’srightto ABORTION, which some consider “state-sanctioned killing.” Brennan passionately defended the protec- tions afforded by the Fourth Amendment’s prohibition of unreasonable searches and sei- zures. His interpretation of the amendment helped establish the EXCLUSIONARY RULE, which holds that any evidence obtained illegally is tainted and cannot be used against the accused. During the 1980s the Supreme Court recognized GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BRENNAN, WILLIAM JOSEPH, JR. 115 a growing number of exceptions to the rule, prompting Brennan to redouble his efforts to bolster its strength. His ADVOCACY of the rights of criminal defendants brought him sharp criti- cism, particularly from the media, which often portrayed him as a libertarian who supported the rights of criminals while ignoring those of victims. In a radio interview in 1987, Brennan became uncharacteristically agitated when asked, “Why do you let some of those creeps go? They do such bad things, and on a technicality, you let them go.” Brennan replied sharply, You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They’re not. We are what we are because we have those guarantees, and this Court exists to see that they are faithfully enforced. These guarantees have to be sustained—even though the immediate result is to help out some very unpleasant person. They’re there to protect all of us. Citing advancing age and health concerns, Brennan retired from the Court in July 1990, after 34 years as an associate justice. He was replaced by Associate Justice DAVID H. SOUTER. Although he eventually slowed his pace consid- erably, he continued to be sought as a speaker and used every opportunity to carry on his campaign for individual rights and liberties. During his tenure on the Supreme Court, Brennan wrote almost 1,600 opinions, many of which have had a significant impact on the American justice system. In 1995, as a tribute to Brennan’s legacy, a number of former law clerks, along with family and friends created the Brennan Center. The center, which is housed at New York University’s School of Law, pursues an ambitious agenda of LITIGATION, teaching, research, and advocacy in PUBLIC POLICY areas, including democ- racy, poverty, and criminal justice. Brennan died on July 24, 1997, in Arlington, Virginia. FURTHER READINGS Brennan Center for Justice at New York Univ. School of Law Web site. Available online at http://www.brennancen- ter.org (accessed July 9, 2009). Urofsky, Melvin I. 1994. The Supreme Court Justices: A Biographical Dictionary. New York: Garland. Woodward, Bob, and Scott Armstrong. 2005. The Brethren: Inside the Supreme Court. New York: Simon & Schuster. CROSS REFERENCES Freedom of the Press; Freedom of Speech; Judicial Review; Warren Court. v BREWER, DAVID JOSIAH David Josiah Brewer was an associate justice of the Supreme Court from 1890 to 1910. A defender of personal liberty and property rights, he also supported states’ rights and was opposed to centralization of power in the federal government. Brewer was born June 20, 1837, in Smyrna, Asia Minor (now Turkey). His father, Josiah Brewer, was a Yale graduate who worked in Turkey as a missionary. His mother, Emilia Field, was the sister of Supreme Court justice STEPHEN J. FIELD,withwhomBrewereventually served. After returning to the United States from their missionary work, the Brewers settled in Wethersfield, Connecticut. Brewer attended Wesleyan University for two years before transferring to Yale, where he graduated with honors in 1856. He studied law for a year with an uncle and then enrolled in Albany Law School. He received his law degree in 1858 and was admitted to the New York bar the same year. Brewer decided to stake his future on the frontier West. He settled in Leavenworth, Kansas, and almost immediately began his long judicial career. He was appointed COMMISSIONER of the U.S. CIRCUIT COURT for the District of Kansas in 1861 and was elected judge of the probate and criminal courts of Leavenworth County in 1862. Brewer served as a judge of the first judicial district of Kansas from 1865 to 1869. He briefly left the judiciary in 1869 to become Leavenworth’s city attorney, but returned in 1870 when, at the age of thirty- three, he was elected to the Kansas Supreme Court. He sat on the Kansas bench until 1884 when President CHESTER ARTHUR named him to the federal circuit court for the eighth circuit. Five years later, President WILLIAM H. HARRISON appointed him to the U.S. Supreme Court, where he remained until his death. As a Supreme Court justice, Brewer was known for his ardent support of individual rights against the tyranny of the majority. “Here there is no monarch threatening trespass upon an individual,” he once said. “The danger is from the multitude—the majority with whom lies the power.” Brewer had great compassion for the marginalized members of U.S. society. In 1908 he wrote the opinion for a unanimous Court in Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551, upholding a statute that established maximum work hours for women GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 116 BREWER, DAVID JOSIAH toiling in laundries. Although he had in 1905 voted to invalida te a similar statute that applied to bakers, in LOCHNER V. NEW YORK (198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]), Brewer was convinced that the particular statute at issue in Muller did not unnecessarily limit an indivi- dual’s contract liberty. Brewer also wrote strong dissents in several cases limiting the rights of Chinese and Japanese immigrants (see Fong v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905 [1893]; United States v. Sing Tuck, 194 U.S. 161, 24 S. Ct. 621, 48 L. Ed. 917 [1904]; United States v. Ju Toy, 198 U.S. 253, 25 S. Ct. 644, 49 L. Ed. 1040 [1905]; the Japanese Immigrant case, 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 721 [1903]). His dissent in Fong, in which the Court found that the power of Congress to deport ALIENS was inherent in national SOVEREIGNTY, included this sarcastic indictment of what he considered Congress’s arbitrary denial of plaintiffs’ rights: “In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, Why do they send missionaries here?” Brewer was, in most cases, a moderate conservative. He spoke out against racial DISFRANCHISEMENT in Giles v. Harris, 189 U.S. 475, 23 S. Ct. 639, 47 L. Ed. 909 (1903). However, reflecting his belief in states’ rights, he held that a state had the right to prohibit INTEGRATION in an institution it had created (Berea College v. Kentucky, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81 [1908]) and that the federal government lacked power to PROSECUTE a case of racially motiv ated harassment (Hodges v. United States, 203 U.S. 1, 27 S. Ct. 6, 51 L. Ed. 65 [1906]). A lifelong ADVOCATE of international peace, Brewer served as president of a congressional commission investigating a bor- der dispute between Venezuela and British Guyana, and later served on the tribunal that ended the controversy. Brewer advocated women’s SUFFRAGE and restrictions on IMMIGRA- TION . He was a vigorous anti-imperialist who believed that the Philippines should be given independence with guaranteed neutrality. Brewer was an unusually outgoing justice who lectured frequently and wrote several David Josiah Brewer 1837–1910 ❖ ❖ ◆ ◆ ◆ ◆ ◆ 1837 Born, Smyrna, Asia Minor (now Turkey) 1856 Graduated with honors from Yale University 1862 Elected judge of probate and criminal courts of Leavenworth County 1861–65 U.S. Civil War 1870 Appointed to Kansas Supreme Court 1865–69 Served as a judge of the first judicial district of Kansas 1884 Appointed circuit judge for Eighth U.S. Circuit 1889 Nominated to the U.S. Supreme Court by President Harrison 1906 Cyclopedia of Law and Procedure published 1910 Died, Washington, D.C. 1908 Wrote opinion for Muller v. Oregon ◆ ▼▼ ▼▼ 1850 1825 1875 1900 1925 ◆ David J. Brewer. LIBRARY OF CONGRESS YOU CANNOT DISASSOCIATE THE CHARACTER OF THE NATION AND THAT OF ITS CITIZENS . —DAVID BREWER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BREWER, DAVID JOSIAH 117 . Alabama Law Review 52 (spring). Goodhart, Arthur L. 20 00. Five Jewish Lawyers of the Common Law. Clark, NJ: Lawbook Exchange. Schroeder, Mary Murphy. 20 00. “The Brandeis Legacy.” San Diego Law Review. copious supporting data. For Muller v. State of Oregon, 20 8 U.S. 4 12, 28 S. Ct. 324 , 52 L. Ed. 551 (1908), Brandeis wrote more than one hundred pages in favor of an Oregon state law mandating a maximum ten-hour. legal consideration will not, however, be vitiated merely because unlawful sexual intercourse GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BREACH OF MARRIAGE PROMISE 109 took place between the parties