G. Robert Vincent Voice Library
Interviews with Michigan Supreme Court Justices

Interview with Thomas E. Brennan (part 1)


Sponsored by Michigan Supreme Court Historical Society
Conducted by Roger F. Lane
January 3-4, 1991


Contents

Topic 1: Justice Brennan talks about his family history, his father and mother, and attending Catholic school

Topic 2: Writing speeches as a teenager, and urging for equal rights for African-Americans

Topic 3: Justice Brennan talks about racial prejudice, high school, and attending the University of Detroit Law School

Topic 4: Justice Brennan discusses opening his own law practice, various unsuccessful political campaigns, his children; campaigning and being elected for Common Pleas Court

Topic 5: Mr. Brennan discusses his experiences in practicing law as preparing him for being a judge and a court case illustrative of injustices in the legal system at that time

Topic 6: Justice Brennan continues talking about the court case from Side A. He also talks about being appointed to the Circuit Court by Governor Romney in 1963, instituting an "anniversary system" to handle cases in his court room, and other issues of judicial administration and credibility

Topic 7: In 1966 he was nominated for the Supreme Court and he discusses the election process for Supreme Court justices, the myth of non-partisanship, and the nature of democracy

Topic 8: Justice Brennan discusses the process of voting on the 1963 constitution in regards to his previous remarks on democracy. He then talks about running for the Supreme Court in 1966, the composition of the court at that time and, after his election, the "showdown" for Chief Justice of the Supreme Court, involving most prominently among the justices Mike O'Hara, Thomas Kavanagh, and John Dethmers

Topic 9: Justice Brennan discusses his concept of human governments, citing examples from his time as a lawyer and as a judge, and the nature of leadership

Topic 10: Mr. Brennan describes the selection of Chief Justice in February 1969, which he won, his opponent Thomas M. Kavanagh, and his accomplishments during his administration

Topic 11: Justice Brennan recalls appointing Stuart Dunnings to be the first black on the Board of Law Examiners and the establishment of the State Appellate Defenders Office and the Attorney Grievance Panel

Topic 12: Justice Brennan talks about the creation of the State Bar Grievance Board in 1969, his Law Day address to the state legislature on the matter, and the creation of a "Crash Program" to handle the case backlog from the 1967 race riots in Detroit

Topic 13: Justice Brennan reads portions of the speech given to the legislature in order to explain his court's proposal for statewide organization of the court system and the establishment of a Circuit Court in Detroit

Topic 14: Continuing to read from his 1969 Law Day speech, Justice Brennan talks about the election process for judges in the Detroit area in regards to concerns about racial equality and the establishment of a Criminal division of the Detroit District Court. He also describes the experience of giving a similar speech that elaborated on the issues with civil government to students at Michigan State University

Topic 15: He continues on to discuss government, economic stability, civil disorder, and the 1967 race riots in Detroit. He concludes by recounting the Senator Joseph Smeekens story from 1971, which concerned a fraudulent attempt to be admitted to the Bar


Topic 1: Justice Brennan talks about his family history, his father and mother, and attending Catholic school


Back to top

Mr. Lane:
This is Roger Lane with former Justice Thomas E. Brennan of the Supreme Court, and we're sitting in Justice Brennan's office. I am representing the Michigan Supreme Court Historical Society, and this is another in a series of tapes being made of former Justices recalling their years on the Court and associated events. The date is January 3, 1991. Justice Brennan, I would like to get this tape started by asking you to recall your earliest family background. I would think that people might be interested in where you were born including whether it was in your mother's bedroom or such and such a hospital, what part of Detroit if it was there, what sort of family circumstances were at the time. This would have been 1929 as I recall. The depression was coming on, so why don't you just recall a little bit about that earliest episode in your life?

Justice Brennan:
My name is Thomas Emmett Brennan. Emmett is spelled E-m-m-e-t-t. It was my uncle's name, my mother's brother, Emmett Edgar Sullivan.

Mr. Lane:
Sullivan?

Justice Brennan:
Sullivan, and his father was John Emmett Sullivan and John Emmett Sullivan was a lawyer in Detroit in the late 1800's who died along about 1911. I never knew him, obviously. He was a graduate of the University of Michigan law school. His father was a man named John Clifford Sullivan, and John Clifford Sullivan was a cigar manufacturer in the City of Detroit during the Civil War.

Mr. Lane:
Did you say "O'Sullivan" or "Sullivan"?

Justice Brennan:
Sullivan.

Mr. Lane:
Not Clifford O'Sullivan?

Justice Brennan:
Not Clifford O'Sullivan, John Clifford Sullivan, no connection with Cliff O'Sullivan from Port Huron, but I guess I start with this because I think it is through that branch of the family that they trace all the way back the American Revolution and I am certifiably a member of the Sons of the American Revolution.

Mr. Lane:
Do you have a certificate?

Justice Brennan:
No, but I have a certificate or something saying I am entitled to join. On the other side, the Brennans were much more plebeian folk and hadn't this kind of elitist background, if you will. I was the second son of Joseph T. Brennan, Joseph Terrance Brennan and Jeanette Sullivan Brennan. They were married in 1925. My older brother, Terry, Joseph T. Brennan, Jr. was born in 1926, and I was born, as you say, in 1929 on May 27th. At the time, my parents lived in a two bedroom bungalow on Elmira Street in Detroit on the west side, and they lived there until about 1935. They lost that house in the depression, an interesting story.

Mr. Lane:
Why don't you mention in brief how that happened?

Justice Brennan:
Well, they had purchased the house for about $10,000 on a land contract from a builder. The builder didn't make the mortgage payments, and my father who was an Irish- Catholic raised with the very strong work ethic and sense of moral responsibility would not miss a mortgage payment to save his life. He made his payments but as I say, the builder did not, and in due course, the mortgage company came out and tacked a notice on the front door, and that's when my parents realized that they were about to lose the house.


Back to top

Mr. Lane:
What year would this have been?

Justice Brennan:
Early 1930's...I am going to say 1933 or perhaps 1934, so...

Mr. Lane:
You would have been four or five years old?

Justice Brennan:
I would have been four or five years old. They would have been paying on this house for about eight or nine years at that point in time, and all they paid on it went down the tubes. All they really got out of it on the advise of counsel, that indeed I think the advise of the Circuit Court Commissioner or whoever handled the foreclosure, was to live out the redemption period and save their money during that year, and then get something else. In 1935, they bought a home at 10311 Morley Avenue in Detroit.

Mr. Lane:
M-o-r-l-e-y?

Justice Brennan:
Yes, on the west side of Detroit, practically in the shadow of the McKenzie High School, and it was in the same parish, Epiphany Roman Catholic Parish that their little house on Elmira was, so it was only about five blocks away, but I was in, I think, the first grade when we made the move. The house was...

Mr. Lane:
Was there trauma associated with this that is still embedded in your mind or is it just another kid's...?

Justice Brennan:
I don't know whether it was trauma so much. There was obviously...moving was kind of exciting. We were moving into a larger home. That was great. I remember we went to school that morning and were instructed after school to go to the new house. "Don't come back to the old house because we won't be living there anymore". I think more than anything else was it was one of those family stories that reflected on the way we thought about life and money and property and things like that.

I am not trying to suggest we grew up poor. My father had a way of saying, "We've got the best", and he was a very good provider and a very great anchor of security for all of us in the family. I never felt for one moment in my lifetime that there was any doubt about where my next meal was coming from or whether there would be a warm place to sleep or the security of a home.

Mr. Lane:
He was steadily employed all through this period?

Justice Brennan:
Yes, he was steadily employed. As a matter of fact, interestingly enough, he lost...he came home from his honeymoon in 1925 to find out that he had been fired from Studebaker Motor Car Company. He got another job, I don't know doing what, but shortly after that was employed at the Secretary of State's office through a relative of my mother's, a man by the name of Milton Carmichael. I don't know if you've ever heard that name, but Milt Carmichael was a great old Republican power in Wayne County many, many years ago and through him, my dad got a job at the Secretary of State's office which in those days, was a very...maybe still is today to some degree, but in those days, was an extremely volatile political job. When your party won, you were in office, and when your party lost, you were out of office.

Mr. Lane:
Did he run a branch office?

Justice Brennan:
Eventually, he became, I think, a branch manager, but it was one of those things that every two years, you had to go, and I believe in those days, it was every two years, you had to go to the well politically, and so my dad became active in politics at that point in time and became a Republican precinct delegate, though I believe his own family - my dad was one of four brothers and two sisters, an east-side family from St. Charles parish down around the Belle Isle area, and I think as I came to know them later in life, all his brothers were Democrats, so I'm sure that his being a Republican was largely a function of the fact that Milt Carmichael got him the job and he was expected because of patronage to support Republican causes.

My mother remembers in those days having to go out and buy a fancy dress to go to a political ball, political fundraising gatherings when indeed, she felt they could not afford it and the money would have been much better spent on clothes for the children and things of that kind. So, her recollections of politics were that they were very demanding and somewhat sacrificial.

Mr. Lane:
This was characteristic more of the time, was it not?

Justice Brennan:
Oh, yes. They were people of the depression, raising what was then a large family. There were five of us. I have two brothers and two sisters. My oldest brother is Terry, I mentioned before. Then after me in 1929, my sister Sally was born, Sara Joan...


Back to top

Mr. Lane:
How do you spell "Sara Joan"?

Justice Brennan:
She never went by Sara Joan - Sally Brennan, S-a-l-l-y. She was born four years after I, so she had been born by 1933 and four years later, my younger brother Raymond, Ray Brennan was born, and he was born in 1937 and then six years after Raymond, our youngest sister, Mary Agnes was born in 1943, so you know, you go back through the 1930's and here is Joe Brennan and Jeanette raising a family on the west side of Detroit, a three bedroom home on a 35 foot lot. The home cost them $3,500.00. At one point during those difficult years, the man who sold them the home on land contract wrote them a letter to say that he thought the payments of $35.00/month were too onerous, and he was going to reduce the payments to $25.00/month which he did.

Of course, in due course of time, my father paid off that house, and went from the Secretary of State's office into the automobile financing business, and he worked for General Finance at one time as I recall and then Associate Discount which was another automobile financing company and eventually in the early 50's, was employed by the Wabeek Bank, and he went through all of the machinations of the Wabeek Bank when Wabeek merged with the Detroit Trust Company to become the Wabeek Bank and Trust Company and then that merged with the Detroit Bank and it became the Detroit Wabeek Bank and Trust Company and ultimately became all just sucked into the Detroit Bank.

During all those years, because he was a very effective public relations and sales man who represented the bank to automobile dealers and who had a following among automobile dealers, he moved up the ranks and became an officer of the bank, I think what is known in that business as an Assistant Cashier or Cashier or something of that kind. He was very proud of that accomplishment. It was somewhat of an accomplishment. He never went to college. He was a graduate of ST. Joe's Commercial College in Detroit run by the Christian brothers down by Joe Muer's, if you are familiar with it on Gratiot Avenue, but it was basically a kind of vocational high school where the emphasis was on learning business, bookkeeping and skills of that kind. He was, I think, well-educated through secondary school but didn't have any college.

My dad was always a man that wore a suit and tie, and he was tall and stood up straight, and he had a very dignified way about him. To all the kids in the neighborhood, he was "Justice Brennan". Justice Brennan was kind of a figure. He did not drink. I knew him only occasionally to take a glass of wine and finish maybe 1/2 of it at Christmas or Thanksgiving around the table, and that stood him good stead because he would go to the MADA meetings, Michigan Automobile Dealers Association, and when they'd get all tanked up, Joe Brennan would drive them all home, and when I say he had a lot of friends among the automobile dealers, I think that was a large part of it.

He was a very agreeable man who had a wonderful sense of humor. You could see him at a party; one of the first times my wife Polly met him was on New Year's Eve. It was at some relative's home, and he was really having a great time. When we came into the place, he said to her, "Somebody spiked my ginger ale with ice", and she thought, "Boy, he's really blown away", and suggested later that I ought not to let him drive because he apparently was pretty giddy and of course, I howled because I knew that he never drank. Anyway, he was a remarkable man and one for whom I had an enormous affection.

Mr. Lane:
Did the family ties, did they continue to be very, very close right up to the time that you left home? Did you have ceremonial dinners?

Justice Brennan:
Oh, yes. My dad...everybody had to be home for dinner except when I got into high school and started playing basketball and I was home late because of basketball practice. I remember when my brother Terry went into the service how traumatic that was, and my mother would write letters to him and those are still kept in family archives, and they paint the picture of a family that was very close. My dad was a dominant father. The family would sit around the dinner table, for example, on Sunday, and my mother would bring the roast beef in or the turkey or whatever and set it down in front of my dad. He would carve it at the table and put the potatoes on the plate and so forth and pass the plates out one at a time around the table. It was none of what I came latter to know as family style, the way most people ate by passing dishes around. We never passed dishes around. My dad sat there and put everything on every plate and passed it around. Maybe that came from a time in the depression where he had to be careful that everybody got enough or a share or something; I don't know. At any rate, the result of it was that if you sat on this side, to his left, and he started things going counterclockwise, your dinner would be cold by the time everybody sat down to eat or started eating. Anyway, but it was a ritual. When we came to dating, we brought the girls home, the guest, the lady would sit next to my dad on the left-hand side, my mother always on the right-hand side.


Back to top

Mr. Lane:
Was he a hard disciplinarian at times?

Justice Brennan:
Yes, he was tough. He had a temper, tough temper. My mother was a very significant factor also. She was a...I think a very bright lady. She is still living. She is 88, pretty much mentally deteriorated in the sense that she does not recognize people though she is very pleasant. If you met her on a bus, you would think what a nice little old lady she is. Lots of wonderful opinions about things, and she will chat away, but if you ask her who her husband was or how many children she had, she would be guessing. She couldn't tell you. Anyway, that's now, but through her life, she was always a very bright lady, a good writer, wrote a lot of poetry, helped us a lot with English composition when we were in school.

Mr. Lane:
Did you do real well in school?

Justice Brennan:
Well, I was a good student. I was a good student in grade school, you know, "B's", and A's" mostly.

Mr. Lane:
If you didn't, there would be a response at home...is that true?

Justice Brennan:
Oh, yes. It was one of those things where I went to the Epiphany Grade School which was run by the IHM nuns, the Sisters Servants of the Immaculate Heart of Mary.

Mr. Lane:
IHS?

Justice Brennan:
IHM, Immaculate Heart of Mary. Wonderful, dedicated ladies.

Mr. Lane:
That's a teaching order now, is it not?

Justice Brennan:
Yes, what's left of them. They're out of Monroe, Michigan, a lot of retirees now mostly. Wonderful, inspirational women. We had one Sister Stephanie; I still hear from her every year and write to her at Christmas time. Sister Stephanie Mueller. We never knew their last names, though. When I was in grade school, that would have been like seeing them without the bonnet on, you know, and all the rumors that they shave their heads and so on, but she was wonderful. She'd be out playing ball with the boys, and the boys just adored her. We'd play, have these grade school football games and as soon as the game was over, we would rush to the convent and ask for Sister Stephanie and tell her how the game came out and give her a blow by blow description and so on. In those days, the nuns were very nearly cloistered. They didn't even get out to watch football games and things like that but of course, she had a great interest in all of our doings. I remember her telling me that I had a terrible case of braggadocio. "You've got a great case of braggadocio". I was a bit of a cut up in school, and she was great for dressing you down in front of everybody. She was good at it. She was the one, I think, who told me early on that I ought to become a lawyer, because I loved to argue. I loved to argue and debate so I ought to become a lawyer.

Mr. Lane:
How old were you, sixth grade?

Justice Brennan:
Sixth or seventh grade, yes, around there. As I say, I was a pretty good student and kind of outgoing in those days.

Mr. Lane:
Well now, wait a minute. Was that the time when you dressed up like an Indian and all that?

Justice Brennan:
No, no. That's much later. In 1943, I graduated from the Epiphany Grade School and followed my brother Terry to Detroit Catholic Central High School which was then located at 60 Belmont Avenue within 150 - 200 feet of Woodward Avenue, east of Woodward Avenue. Now remember, I lived on the west side of Detroit, probably five miles from the school, so we traveled by bus, the Plymouth-Cunniff bus typically across town to the school. I always smiled about the great busing controversies that came later on. I was bused all through high school, and passed a lot of schools that were closer to my home. McKenzie High School was right across W. Chicago Boulevard from my home.

Mr. Lane:
Was it not true, though, that in this time, Catholic Central High School was sort of a shining magnet to the great majority of Catholic young persons in Detroit?

Justice Brennan:
Sure, of course it was, and interestingly, if anybody were to...you can't go there anymore because the buildings have been torn down, but if you could have a video of what those buildings looked like and what those classrooms looked like and what that "campus" of that high school looked like in those days, you would be flabbergasted to think that anyone thought that highly of it. You would be flabbergasted, for example, to see as I did just recently in some program for high school football game, or I don't know what it was - it was some football game, but it was a record of attendance at high school athletic events, football, and the largest attendance ever at a high school football game in Michigan; I mean the largest and the second largest and the third largest, I think, were all Detroit Catholic Central games, when they played Father Flanigan's Boys Town and when they played I think in the original Good Fellow games way back when in Brigg Stadium or Tiger Stadium which was then Brigg Stadium. I think 53,000 people almost.


Back to top

Mr. Lane:
Is that right?

Justice Brennan:
Yes, and it was a huge thing, and they were a powerhouse. Detroit Catholic Central was regarded by those of us who came out of the parochial school system as the local version at the secondary school level of everything that Notre Dame represented at the college level, and of course, those were the years when the movie Knute Rockne of Notre Dame, I guess came out a little after that, but even the priests in our high school talked in terms of Notre Dame. We were deeply imbued in those days with the idea that Catholic education was important, and it's amazing to me as I look back that first of all, how much it has changed, the general attitude even among Catholics, but you know, the Catholic school system came out in the late 1800's particularly, out of a difficulty that Catholic immigrants had in being assimilated to the anglo-American culture, and finding, for example, that in the public schools, they were teaching the Bible, they were teaching the King James version of the Bible. It was long before Americans got united for the separation of church and state or any of those issues were ever raised by anybody. Nobody doubted the fact that the people in the community had a perfect right to teach the Bible to their children, and they taught the Bible according to the version that represented the majority opinion in the community. The Catholic bishop said, "No, you're teaching heresy to our kids. We can't go to the public schools. We'll have to start our own school system". Unlike the way things are today, they didn't go the Supreme Court and say, "You can't teach the Bible to our kid" because the Catholic bishops never doubted that the Protestants had a perfect right to use the public school system to teach the Bible to their children, but they said, "We don't to teach your Bible to our kids. We're going to start our own school system", which they did.

Mr. Lane:
When did the Catholic school system pick up a good head of steam and be sort of systemic throughout the populated parts...?

Justice Brennan:
I'm giving you the motivation for its beginning was because the Catholic bishops felt that their people were being exposed to all this heresy in the public schools and of course, many of them were immigrants, Irish, German, French and so on, and Eastern European, and they wanted to maintain their own culture, but specifically, their own religion, so that was the reason why it was created. Because there was still in those days a tremendous flow of religious vocations, nuns and priests, who would work for nothing or next to nothing, it was economically possible to have a competing school system and make it work. I sort of came along - I was born at the tail end of this or maybe the apex of all this, and I remember the priests from the pulpit in August, late August or early September, preaching hard and vigorously to the people, the parents, that "you have a moral responsibility to the religious education of your children. If it is at all possible, at whatever great sacrifice, you must - you have a responsibility to send your children to Catholic schools", and you know, and the only...my sense of it was growing up, the only Catholics who sent their kids to public schools were people who came from mixed marriages where they had married a Protestant, you know, one of them or basically poor people, people who were simply too poor, and you had to be awful [expletive] poor because in the days when I went to Epiphany School, on Mondays, we brought our two dollars for tuition. That's the way the schools were. The kids brought their two dollars for tuition on Monday.

Mr. Lane:
Lunch money.

Justice Brennan:
Oh, yes. They went through the classroom and collected the tuition money, two bucks a head. The oldest one in the family brought the tuition money, so I mean, it was a shoe-string operation but a [expletive] good education. I mean, the atmosphere in the classroom was the same as the atmosphere at home. The nun,...I later learned that the legal expression was "in loco parentis", but she sure as hell was in the loco of the parentis and if she rapped you at school, you didn't go home and tell mother and dad because they'd rap you for getting rapped at school. I mean, it was part of it. But this carried into high school, and in high school, I met these marvelous priests that came out of the Basilian fathers.

Mr. Lane:
Say that again.

Justice Brennan:
Basilian, it's St. Basil, B-a-s-i-l-i-a-n, and the formal name of the order is the Congregation of St. Basil, CSB, and they're based in Toronto, Ontario at St. Mike's College, the base of the order, and they have now and then, I guess too, a number of places where they supply the faculty. They operate St. Thomas College in Houston, Texas and of course, St. Mike's College, St. John Fisher College in Rochester, New York and a number of high schools around.

Mr. Lane:
Do you know how John Fisher is spelled?

Justice Brennan:
I think it's F-i-s-h-e-r. But I remember, to give you an example now, I am 14 years old, and I am in my first year in high school. The priest walks into the English classroom, and there were five classrooms of freshman at this high school. I think we were on the third floor of the building. It was a third floor walk-up. The principal...I'll give you an idea of what this school was like. The principal's office was located on the landing of the front stairway. I mean, the building was designed; that was designed merely to be the landing where you turned around and the stairway would come up this way, turn this way and went back that way, but half of that landing had been walled off and made into the principal's office. That's where the principal's office was, and so it was not fancy by any means. I mean, we had no swimming pool. We had no lot of other things.


Back to top

Mr. Lane:
Administration did not reign publicly.

Justice Brennan:
That's right, there was no gold spittoons, but in any case, and I'm guessing there were 60, at least 60 students in my classroom, my section which was 9...I think I was in 9- 3; 9-1, 9-2, 9-3, 9-4, 9-5. Those were the five freshman classrooms, so I was in 9-3, and the homeroom teacher was Father Matt Sheedy, S-h-e-e-d-y, a burly Irishman from Toronto who came in and had this absolutely new malicious laugh, and shake his head. "Poor fellow, we had a guy in here last year. He kept talking during class and he chewed gum. Poor fellow, boy it was just terrible the way it turned out for him", and he put the fear of the Lord into us. I remember there was a fellow who sat in the front row. His name was Sonnenberg, and I forget what Sonnenberg's first name was, but there used to be a wrestler by the name of Gus Sonnenberg, and so, of course, the first day he walked in there, Father Matt Sheedy nicknamed Sonnenberg "Gus". He was then Gus Sonnenberg from then on, and that's all we ever knew him by was Gus Sonnenberg. So, this particular day, a homework assignment had been given out. Father Sheedy comes in and says, "Well, Gus, why don't you read us your essay that you wrote last night?" and Sonnenberg sort of puts his head down and shakes his head back and forth, "Haven't got it, Father." "What do you mean, you haven't got it?" "Well, I didn't do it." "Gus, you're not telling Father you didn't do your homework?" "Yes, Father, I didn't do my homework", and so then Father Matt Sheedy begins to collect the homework from all the other students, starts in the first row and he goes down both sides collecting the homework from the boys and as he collects the homework from each boy, he says, "Look, Gus, Bob got his homework. Fred brought his homework in. Here's the homework from Charlie. You're not telling Father you don't have your homework?", and he continues this monologue as he goes through the classroom. Now he comes back up between the third and fourth aisle. He is now approaching Gus from the back and continuing this monologue about people turning in their homework until he finally gets back to Gus again. Now he is standing, hovering over Gus and he says, "Come on, now, Gus, you really have your homework, don't you?" "No, Father, I don't have my homework" whereupon Matt Sheedy took his right hand and you know, he had been offered to play hockey for the Maple Leafs and he turned it down to go into priesthood, so he was an athletic guy. He whacked Sonnenberg across the back of the head, just one quick karate chop, I guess, and Sonnenberg's head went down on the table like it was cut off. He went out cold. Father Sheedy, I think, got a little nervous that he maybe had gone a little too far, and so he turned to the poor fellow who was sitting in the first seat by the door and he says, "Well, Willard, don't sit there. Go get him some water". Willard Graham gets up and out the door and he later said he didn't know what to do. He had no container with which to bring any water. He sort of went and stood at the drinking fountain wondering what to do, whether to get a handful of it or a mouthful of it or what, but in a moment or two, Gus began to come around. Father grabbed him by the hair and kind of held his head up like this and shook it. He was woozy and he was rolling around like this and Father says, "Now, you all right, Gus?" "Yeah, Father, I'm all right". He said, "Now, Gus, I didn't mean to hurt you, Gus, but you got to do your homework". So, now you can imagine. I'm fourteen years old, and I've just witnessed this scene along with sixty other boys. The fear of the Lord Almighty goes right down to our toes. I mean, we are not going to come to class without our homework from then forever, you know. It was just great. I believed then, and I believe now and I believe all my life that the experience of adolescent boys being taught by men is an absolutely unequaled thing and it has so many great advantages in terms of learning discipline, responsibility, sportsmanship, fellowship. In that setting, it was not uncomfortable for the priests to talk about loving, about respecting women, about being a caring person. In the presence of girls of that age, it would have been the source of giggling. It wasn't when the priests talked about it in front of the young men. Anyway, I credit those years as most significant point in my own personal development. I just discovered this morning that my secretary has typed up, apparently while I was on vacation last year, every speech that I ever gave that she has around here, and they go back to 1944; these big blue volumes...

Mr. Lane:
Did you say "1944"?

Justice Brennan:
1944.

Mr. Lane:
You were fifteen years old.

Justice Brennan:
Yes. We're talking about, you know, the influence of these priests and this school on me, okay?

Mr. Lane:
Right.


Topic 2: Writing speeches as a teenager, and urging for equal rights for African-Americans


Back to top

Justice Brennan:
And the first speech in the book was, the first couple were speeches I gave in oratorical competitions, and in my four years at Detroit Catholic Central, I won the oratory competition every year.

Mr. Lane:
Well, now, you're fourteen. You're talking about when you're fourteen as a take-off point. Now, you obviously,...you mentioned that the sister in sixth grade or whatever said, "you ought to be a lawyer. You like to argue so much". You also mentioned about braggadocio. Had it become a characteristic somewhat earlier, now I'm talking about prior to 14, that you were inclined in that direction and perhaps, was there some direct cultivation and careful cultivation by your father and your parents perhaps? Do you see what I'm trying to say? You must have gotten a real early start in way that wasn't maybe structured, but were you encouraged, for example, to play the leading role in the Christmas pageant or whatever the heck it was? You know, do you see what I'm trying to ask you?

Justice Brennan:
Yes, you're quite right, and from the earliest days, we were expected to get up and recite. When we went to family gatherings, when we were in school, our parents would say, "Now, Tommy, you get up and recite your poem or sing the song", whatever it was...

Mr. Lane:
And this was a parental encouragement.

Justice Brennan:
Oh, yes. They were showing off their kids to their aunts, uncles, nieces and everybody else, but that we were always expected to do that, to get up and as I look back on it, some of my cousins were much more reticent to do that. They'd be shy, but the Brennans and particularly myself and my brother, would get up and entertain at the drop of a hat, you know, sometimes not very well prepared, but we were never shy about getting up and doing it.

Mr. Lane:
As you look back, was there a certain sort of a gratification in this?

Justice Brennan:
Well, it was what your parents wanted you to do.

Mr. Lane:
They approved.

Justice Brennan:
They approved. They encouraged you to do it. Obviously, you got applause. That was recognition and so forth by older people. I don't know. It just...

Mr. Lane:
I didn't mean to dwell too much on this.

Justice Brennan:
Well, that's sort of where it came from but anyway, by the time I was in high school...it was in high school that I began speeches, and as I say, I won these oratorical contests every year. In my freshman year, the speech had to do...it was 1944...with the impending end of the war and my visions of the peace table and what the different countries were going to do and say and the positions that they were going to take at the peace table and so on, and as you would well imagine, what I...it's interesting...now, this is a 14 year old boy predicting what the United States of America would do when the war was over. "Last, of course, we would come to the United States with being a democracy herself will undoubtedly support world Congresses, world courts, world peace and a chance for the aggressor nations to get back on their feet. American hard in war and gullible in peace will probably feel that by killing a few of the more notorious enemies, the possibility of new world conflict will be destroyed. She will go out of her way to re-establish those little republics and kingdoms that were inaugurated after the first World War. As long as everyone else at the peace table is happy, the United States will be satisfied".

Mr. Lane:
What year is this, now?

Justice Brennan:
1944. I wrote that when I was 15 years old, okay?

Mr. Lane:
This, of course, would have been in part an extension of your instruction in the classroom about current events, and...

Justice Brennan:
Oh, yes, we were getting a good...but I never had a course in current events, never in my life. We had courses in history. We learned Latin but remember that I grew up...at a time when there was a war going on. You read the newspapers. I mean, we talked about it. We talked about it at home. We talked about it...I mean, the priests would talk about it in English class. They would use examples or they would actually get off the track and maybe talk about things that were going on in the world, but not because we studied "current events". We were learning English literature, you know, and so forth. Of course, as you can well imagine, my final paragraph, I urged that what ought to happen is that the Pope ought to be involved in the peace process. My sophomore year, I gave a speech having to do with "one of the most pressing problems that faces the nation when it has successfully concluded a war is that of occupying in a useful manner the discharged members of its armed forces", and I went on and talked about what they ought to do with the veterans when they come back.


Back to top

Mr. Lane:
This would be given to sort of an assembly of students as part of a contest to...

Justice Brennan:
Oh, yes, and like all of the freshman classes, the five freshman classes would be grouped together in the gymnasium. There would be four or five finalists. We would speak and they would select a winner. Junior year - now I'm 17 years old or thereabout - "God created man to his own image and likeness", it starts out, and it is all about...

Mr. Lane:
That's right out of the catechism, isn't it?

Justice Brennan:
Oh, yes. It's all about race and its all about "the white man's soul, the dark man's soul". It goes on to talk about "the American ideal, that the Negro be not only free and equal for freedom and equality are empty words unless backed by serious individual conviction, but that the Negro be given the opportunity to prove that equality, physical as well as spiritual must be a part of his make-up if he is an image of his creator. Can we call this principle idealistic, theoretical, unfit for practical use? I hardly think so", and so on. I think it's interesting because, you know, I think of myself and my own later political views and how I was regarded by people, that these were...in calling black people "Negroes" in those days was the appropriate word, I guess.

Mr. Lane:
Hell, in the United States Reports, they are Negroes until 1965 or 1966, I think.

Justice Brennan:
But, "When Christ said, 'Going therefore teach ye all nations', he didn't mean teach the white peoples of the earth because God sees through black skin as well as white when he probes the inner workings of the soul. We try to support our resentment of the Negro's equality by saying he is ignorant, not our mental peer, and yet we exclude him from our school which means merely that if we really believed him to be ignorant, we haven't the charity to teach him".

Mr. Lane:
They were excluded from your school?

Justice Brennan:
No, but I think there were maybe only one or two in my recollection.

(End of side 1, tape 1)


Topic 3: Justice Brennan talks about racial prejudice, high school, and attending the University of Detroit Law School


Back to top

Justice Brennan:
And I'm talking about, you know, wrong to exclude the Negroes from our school. "We say the Negro is dirty, and yet we forbid him to enter decent places to eat, places that are clean and orderly and promote good manners, for what are manners but respectful courtesy for something that demands respect, and what respect is demanded by a restaurant that is dirty. Serious interrogation that finds us unable to explain fully our feeling of superiority and distrust of the Negro actually, it has come time for another migration to the New World, another Declaration of Independence, not a physical migration nor a verbal declaration but a need to rejuvenate our mode of thinking. Some ruminants of those years of the old world have survived. We cannot flee them this time. We must stay and cast them out. Racial prejudice is not innate. It must be learned. It must be cultivated in an atmosphere of arrogance. Watch the little children play. They haven't learned yet. Haven't lived in that atmosphere of arrogance long enough to feel guilty, feeling superiority", and then I go on to talk about little kids playing, Black and white, and getting along and so on.

Mr. Lane:
Did you, for example...were you on the athletic teams and were there colored, Negro players that you got closely associated with? In other words, was your thinking along this line somewhat stimulated?

Justice Brennan:
No, and I'll tell you...I'll tell you that...let me think now. This would have been my junior year...yes. I'm trying to think of my first association with Black people. I can't recall there being any black kids in my class at Detroit Catholic Central High School. There may have been some in the class, but there weren't any in my class, okay.

Mr. Lane:
They were excluded? It was just a matter of percentages.

Justice Brennan:
They weren't excluded but again, very few blacks were Catholic and very few could afford to go and pay tuition at a school, although today, there are a lot of them, Black parents are sending their kids to the Catholic schools because they want the discipline, what's left of them in the Detroit area. But, that summer, between my sophomore and my junior year in high school, I worked for the City of Detroit; got a job through the influence of my uncle, and I counted traffic. We used to go to different corners and sit there with a clicker and count the traffic because they were doing a survey as to where to build grade separations for the railroads, and I met a black fellow. He was on our crew. I forget his name, nice guy, but we had a lot of time to sit there clicking and talk, and I can remember having many, many conversations with him and just comparing what it was like for him to grow up in Detroit and what it was like for me to grow up in Detroit. We just got to be good friends. We talked a lot, and I think that was part of it. Plus, clearly the priests, and this one particular priest, Father Norbert Clemens who was working with me at that time and was a counselor and a coach, speech coach.

Mr. Lane:
I heard about him from Justice Ryan.

Justice Brennan:
Clemens, C-l-e-m-e-n-s. He was my speech coach, and he also...I mean, obviously, my advocacy of civil rights was religiously motivated and oriented, and I talk in terms of equality before God, you know, as being made in the image, the likeness of God, so it wasn't...to me, it was a little bit based, as I recall, on having met this black fellow and worked with him the previous summer, but it was more a theoretical thing with me because I didn't have a lot of black friends. Then in 1946, in addition to my oratorical contest, speech, I began getting into oratorical competitions that were conducted by the Detroit Times, the Hearst newspaper oratorical competitions and they, every year, had this competition throughout all the high schools, and it was always based on a particular historical figure, patriot, an American patriot, and so I got into these things. James Madison was the subject in 1946. I always won at Catholic Central and I generally didn't get too much further after that. I would lose in the regionals or whatever.


Back to top

Mr. Lane:
You must have had sort of a zest, then, for this kind of activity?

Justice Brennan:
Oh, yes, sure. So anyway, and there's a little story to that which I will come to. I graduated from Detroit Catholic Central in 1947. I was the valedictorian of the school, of the class, and went on to the University of Detroit. By that time, I had pretty much determined I wanted to be a lawyer. As a matter of fact, in the yearbook, under my picture, it said that "Tom Brennan will go to the University of Detroit and study law". Incidentally, you, being a journalist, may enjoy this: I was also the editor of the school paper while I was at Detroit Catholic Central. The Indian costume was that I had sort of a comic lead in one of the musical productions, and I played the part of Chief Squatting Cow. Now, I have to tell you about this, because it is an interesting thing. This Father Clemens that I speak of was a very able theatrical producer and he used to go down to New York in the summer time with a crew of two or three students, and they would select a current Broadway play that they wanted to put on at Detroit Catholic Central. They would buy the album so they'd get the music. Then they would go to the play two or three nights in a row, go back to the hotel room and re-construct the dialogue from memory, and that's how they'd get the scripts. They would then come back to Detroit Catholic Central in the fall and give the play a different name, use all the same music, same story line and to the extent that they remembered it, the same dialogue, but there would be some changes in dialogue, some dressing up of the dialogue, maybe to change it to be a little more appropriate. Men would play the parts of women, like Hasting Pudding in that respect, I guess, and these plays were marvelous. They would go on for three or four days. They would have played to 18,000 or 20,000 people. They'd fit...I don't know, they'd fit 2,000 or 1,800 or something in the auditorium, so they would run it two weekends or seven performances or eight performances. It would get up around 12,000 or 14,000 people who would see it. I am exaggerating at 20,000, but maybe 12,000 or 14,000. So the particular play which I was the Indian was then running on Broadway under the name of "Annie Get Your Gun". When we did it at Catholic Central, it was called "Rifles Aren't Romantic", and instead of being Chief Sitting Bull as Ethel Merman would be singing with, I was Chief Squatting Cow and the part of Ethel Merman was played by the second string quarterback of our football team, a young man named Dervin Flowers, and Dervin did a very creditable job. In any case, I did not know it then, but one of the young ladies out in the audience was a girl from Immaculata High School by the name of Pauline Weinberger, and Pauline thought this guy in the Indian costume was the funniest and as a matter of fact, sang a song. I sang a song called the Mississnawa. It was about the river, the song "Went by the Miss-siss-siss-siss-siss-siss-siss-siss-sissnawa, da-da-da- da". It was humorous and had maybe a series of six or seven verses, choruses that were all very funny. In fact, I wrote the words to the song and a classmate of mine, Bill Dresden wrote the music, so we embellished "Annie Get Your Gun" with some of our own stuff. Anyway, all under the tutelage of Father Norbert Clemens who was a great leader and inspiration to all of us. So, now I graduated from Catholic Central, go on to the University of Detroit, and...

Mr. Lane:
What is the year, now?

Justice Brennan:
This is 1947, in the fall of '47. As a matter of fact, in that final year, I played basketball. I was...my only moment of glory was in the Christmas tournament. I scored a few points in the waning minutes of the game. We were winning anyway, but I was a second stringer and loved to play but wasn't that strong or aggressive. I had a good shot, but I was tall and skinny. I'd go up under the basket and get pushed aside by the sturdier lads, and finally when the state tournament started, we were going into rehearsals for "Rifles Aren't Romantic", and I had to make a choice between the play and the basketball team, and I left the basketball team, which is rather amazing when you consider that the coach of the basketball team was this Father Matt Sheedy who had been my freshman English teacher, and I was still scared to death of old Matt Sheedy.

Mr. Lane:
You grew up at 14 one day.

Justice Brennan:
Boy, yes. He died this last year, Matt Sheedy. What a great guy he was. Anyway, so in any case, I started the University of Detroit in the fall of 1947. There was a whole influx of young men and...mostly young men coming back from World War II. At that time, had just mustered out, had the benefit of the GI bill and were starting their college education or continuing their college education, so the colleges were bulging at the seams. The University of Detroit re-opened Dowling Hall, a building that was constructed in 1877 down on Jefferson Avenue.


Back to top

Mr. Lane:
D-o-w-l-i-n-g?

Justice Brennan:
D-o-w-l-i-n-g, and which had for some years before that, been open only in the evening for the evening College of Commerce and Finance, but in the fall of 1947, they re- opened it for the College of Arts and Sciences but only for freshmen, incoming freshmen. It was a curious kind of atmosphere at Dowling Hall in the fall of '47. You had a lot of people who were young men who were in the early and mid- twenties who were coming back from the war and some who were older than that who were married and starting college education, serious students. Then you had a gang of us who were 18 and who were just coming right out of high school, but in any case, there weren't any upper class men. It was all just freshmen in this building, and there was a great camaraderie that developed there in that year. A lot of friendships made and a lot of good things happened. That is where I met my wife and we met a full crowd of social friends who have been friends ever since. The next year, I went up to the so-called "uptown" campus at Six Mile and Livernois and continued my education. I was in Arts - Pre-Law. I remember that I was very pragmatic about going to school. I wanted to hurry up and get my law degree and get out and start making money.

Mr. Lane:
At this time, did you get good family support? You did not have to work, did you?

Justice Brennan:
My dad said to me, "Tom, you're a good student." I graduated fourth in my class in high school, and I had a 92.5 average for the four years of high school. As a matter of fact, I recall in I think it was my sophomore year, I got all A's. It was the only year I got all A's, so I got mostly A's all the way through with a 92 average, and my dad said, "You're smart. You ought to go to college." He said, "Here's the deal I'll make with you. You can live at home for nothing, and that's your scholarship and while you go to college, you pay your own way, and you don't have to pay board except in the summertime when you're not going to school", so I thought that was a very generous proposition, and I proceeded to go to school.

Mr. Lane:
Did you have to borrow for tuition?

Justice Brennan:
No. Nobody would loan you any money anyway. There was no place to borrow. I had no credit. I had no job. There weren't any programs like there are today where people can borrow money to go to school with the Federal government standing behind it. No, I worked in a bowling alley setting pins. I worked in the summertime obviously, I worked...the summer before I started college, I worked at the railroad, many times pulling double shifts, working loading mail onto box cars down at the old...what do they call it?...down there at 14th and Michigan Avenue. I want to say Union Station. It wasn't Union Station - Michigan Central Station, Michigan Central Railroad Station, and I worked, I'd go in at 3:00 p.m. and work until 11:00 p.m. and oftentimes get a double shift and work until 7:00 a.m., so I saved up my money to go to school that way. Basically, during my freshman year, I didn't have to work because I had saved enough money to pay my tuition. Then in my sophomore year, between my freshman and sophomore year, I got a job at the Wolverine Stone Company. This was all like stone facing that you put on buildings, limestone sills and door steps.

Mr. Lane:
Grave markers?

Justice Brennan:
No, we had a little of that though basically not. Usually, that's granite. We dealt in limestone, sandstone, construction stone mostly though I do recall, we made fireplaces out of stone, and we used to set the fireplaces up and number the bricks, the stone pieces and we would draw a diagram for the brick mason who would put them all together on the job. In fact, one of my great...I worked there for three summers. One of my great accomplishments during that time was to carve a limestone fireplace which is somebody's home down in Detroit to this very day. I couldn't tell you where, but I literally carved it with a air hammer, you know, a chisel like this, and so those were my hard-working days. I drove a semi down to Indiana to pick up stone and things of that kind, and learned and discovered what the language of the working man is which was the combination of the language of the working man and the language of the dog-faced soldier because men I worked with were men who had served in the second World War and who brought back with them not only a spirit of American enterprise but a cultural whatever. So...

Mr. Lane:
Were you on a combination course, two years of general arts and three of law or that sort of thing or were you?

Justice Brennan:
I don't recall that. I was on a track where if I could generate 62 hours of pre-law credit, I could be admitted to the law school. I don't recall that I had to have any particular grade point average to do that. I do remember, however, that the course, my sophomore course in religion was not an acceptable credit to get into law school and I talked to my advisor. I said, "I don't want to take this. I don't need this to go to law school. I've already taken all the religion that the law school will accept for pre-law credit". The advisor said, "This is a Jesuit institution. You will take religion because everybody must". I had a priest called Father Madgett and the subject had to do, it was a speculative religion course having to do with what heaven was going to be like. I found the whole thing totally impractical and not particularly inspiring, and I did everything I could do to get kicked out of the class, and I finally flunked it.


Back to top

Mr. Lane:
How did Father Madgett spell his name? Do you remember that?

Justice Brennan:
M-a-d-g-e-t-t, I think, a sainted man of sainted memory who has gone to his eternal reward and I'm sure is now proving that everything he told me in that class was absolutely correct, and when due course of time comes and I meet my eternal reward, I am sure Father Madgett will say, "See, I told you it would be like this". In any case, I had a lot of fun, but I also worked. I worked in a burglar alarm company and my job was as a dispatcher, a night dispatcher. I'd go in on Friday and stay at the burglar alarm company until Sunday night. I had like a 30 hour shift, and there was a cot there to sleep on. What I basically had to do was to be there in case the phone rang, somebody would call and say, "You people have a burglar alarm that just went off on the corner of Meyers Road and Seven Mile Road" or whatever, and I would immediately call the police and dispatch the repairman to go out and fix it, because nine times out of ten, it would be the wind or something like that. We also had some silent alarms which became the state of the art afterwards, but we had a few at that time where the alarm came directly in on a ticker-tape, and you had to call the police and send them out. I remember that every Monday, I would go over to the alarm company which was only a 1/2 block away from my home and get my check, and the check was for fourteen dollars and twenty some odd cents. I would take the check and go up to the Bursar's Office at the University of Detroit and give them $10.00 of the $14.00 and the other four bucks was for me to live on for the rest of the week. A lot of fun. Anyway, among other things, to help me to operate, a 1928 Essex that I had acquired for $75.00 the previous summer and when I got it home and we took the head off the engine, we found out that the #5 cylinder was completely empty. There was no piston, no rod, no nothing. You could see the oil pan right down through the darn thing. I spent all that summer trying to purchase a piston and rod for a 1928 Essex and believe me, there are not a lot of those around. You don't go to the K-Mart and say, "Give me one", you know, but it was a great old car. We finally got it running barely. It never went more than 32 miles per hour, but we got it up to 32, and I did drive it to school a few times in my sophomore year.

Mr. Lane:
I suppose that was before the time when you would apply to the government for a remedy and declare that you had bought a lemon.


Back to top

Justice Brennan:
That's right. Well, we knew what we were doing. As a matter of fact, we told...Burt Baker was an automobile dealer on the corner of Grand River and Livernois. He had a big sign that said, "If you've got $50.00, I've got a car". We went in and said, "We've got $50.00". Actually, it was not my car because there was only one of us in our crowd that was old enough to buy a car. The fellow's name was Lloyd Penner, and Lloyd Penner was an orphan who had moved in with Mike Foley on the next block. Mickey and Jerry Foley, and the Foley boys, they picked up Lloyd Penner, I guess because Mike Foley worked at the Detroit Times, and he met Penner, and why or how, but Penner moved in with them. He was 21 or at least, he had proof to indicate that he was 21, and I was only 18, but I was the only one who had a decent job, and I had $75.00 so I put up all the money, and we took title in Penner's name. But everybody knew it was my car regardless of the fact that the title was in Penner's name. Anyway, we had a lot of fun trying to get the car going, and actually did get it running a few times that year. I'll come back to the car in a bit. Sophomore year - I'm still, even in college, being involved in the college version of the Hearst Oratorical Competition, and I think I won at the University of Detroit maybe once during that time, but I was anxious to go right to law school and in fact, I did start law school in the fall of 1949 after two years of pre-law study. I was then 20 years of age. I remember, I'd worked in the stone yard, saved my money. I was...fall of 1949...already dating Pauline Weinberger whose nickname is Polly and who has been my wife now for 39 years, so we were dating. I went down to the Penobscot Building. I wanted to get a job as a law clerk, so I went to the Penobscot Building. I didn't know any lawyers. My Uncle Emmett Sullivan was a lawyer by training but he worked for a bank. He worked for the City National Bank, and he didn't believe that anybody could make a living practicing law. His recollection from the depression was that was a wrong thing to do, and he really didn't have any particular connections or so it seemed, and in any case, in our family, you never went to relatives to ask them for anything, so I went to the Penobscot Building, and I stood there in the lobby, and I looked under "O" because I figured there was going to be some Irish guy, O'Malley, O'Toole, O'"something", and I'm going to walk in and say, "I'm Tom Brennan. I go to the University of Detroit Law School. I'd like a job as a clerk", and he is going to say, "Hey, Brennan, you sound like a good guy", and I'm going to get hired. So I go upstairs. There are no "O's". There are no lawyers that start with an "O", and right after the "O's" come "R", and there is a lawyer by the name of Roberts, and I said, "That's good enough". I go upstairs to Roberts' office, and I walk in, and as I'm going through the door, I notice the name Abbott is also on the door, something Abbott and Roberts and so on, so I say to the young lady, "I'm here to see Mr. Roberts", and she said, "Mr. Roberts is not here". I was very quick. I said, "Then I'd like to talk to Mr. Abbott". She said, "Who shall I say is calling?". I said, "Tell him that Justice Brennan is here to see him". She said, "Have a seat". I sat. A little while later, she ushered me in and behind this large desk was a lovely white-haired gentleman, somewhat pudgy, very benign face by the name of Arthur Abbott, and Arthur Abbott, I soon learned, had been an adjunct teacher at the University of Detroit for 25 years, ran the Abbott Bar Review course was his venture, and took a great interest and a very kindly interest in me. He didn't have any clerkships there at the law firm but he picked up the telephone and called the Detroit Bar Association Law Library because he was on the committee of the Bar that ran the library. He spoke to the librarian and anyway, she agreed to interview me for a job in the library and shortly thereafter, I was working in the Detroit Bar Association Library for the magnificent sum of $0.50/hour putting books away and learning how to use the library. In any case, Arthur Abbott's son, John, later was the Dean of the Detroit College of Law for many years, so that was my first exposure to the Abbott Family. Anyway, I worked at the Detroit Bar Association Library in my freshman year in law school, and then in the summer between by sophomore and junior year in law school, I worked at the stone yard again, left the Bar Library and went back to the stone yard. That summer, I also had a second job. I worked at the stone yards from 7:00 a.m. until about 3:30 p.m., and then I dashed out, got on a bus and got across town to around Cass Avenue someplace where I picked up my truck from the Ludington News Agency, and I drove a truck for Ludington News Agency on the afternoon shift, delivering and picking up film from drugstores, particularly in the downriver area, so I can remember there was only a driver's seat in the truck, and on a couple of occasions, my girlfriend, Polly, would go with me, and she had to sit on a box that we would bring along that was there and ride along. That was a big date. She would ride along with me on the truck, and we'd go pick up films out in Wyandotte and maybe stop for a cup of coffee or something.


Back to top

Mr. Brennan:
The purpose of my working the second job was to save money for an engagement ring. By the end of the summer, I had stashed enough money away to buy a diamond engagement ring, and in the fall of 1950, my brother was married. He was married in September. On October 7th, Polly and I went down to pick out the diamond ring in the morning. We ordered it from the jeweler and that evening, my parents had their 25th wedding anniversary celebration which we kids worked on and put on for them. Four days later, Polly's father died. Now, I'm going to take a moment to back off and tell you a little bit about my wife. Her dad was an immigrant, and her mother was an immigrant. Her dad came from Germany. Her mother came from Muckryn, Hungary at the age of 14 or 15. I can't even spell it. It sounds like Muckryn. She came at the age of 14 or 15 alone, worked as a house servant for a dentist in Philadelphia, saved enough money to send for her family and brought them over, her mother, her brother and sister. In the meantime, Fred Weinberger, my wife's dad came from a large, somewhat upper crust Jewish family in Germany. His father was a military man, I think, and his grandfather raised horses for the German army. He came here in about 1905. In about 1912 or 1915, his mother wrote to him and told him to come home and fight for the fatherland. He made application to leave and then couldn't get out, and his citizenship was held up for several years because of that, but ultimately, he became a citizen. He worked at the Detroit News. He was a stereotyper for the Detroit News as was his brother-in- law, Polly's uncle, Joe Lobb, and they were both very active and on the board of the Detroit Newspaper Industrial Credit Union which you may recall back in the old days. The printers and stereotypers put them on the in and the reporters and photographers took them on the out. Roy Marshall was the head of it, but Polly had two older brothers, Joseph Weinberger and Emmanuel Weinberger who were maybe eight to ten years older than she was. Her oldest brother Joseph was killed in an automobile accident in 1936. He was 20 years old. Two months later, her mother committed suicide. That would have been in 1936. Her grandmother then lived with her and her dad and her other brother, and I think maybe in the late 1930's or early 1940's, the grandmother died. Her second brother was killed at Salerno. He was a paratrooper killed in 1943, so where she had grown up as the youngest child and only daughter in a family with two brothers, dad, mother and grandmother, a house full of people; by the time I met her in 1949, she was just her and her dad. As a matter of fact, the father had had an unhappy marriage after the mother died and was divorced and so on. Curiously, she did not know that her father was Jewish. He was a Catholic. He went to Catholic church and sent her to the Catholic schools, insisted that she get her Catholic education and so on. He was somewhat an antisemetic fellow, strangely enough. We didn't know much until much later. We were somewhat estranged from his family, but in any case, on October 11th, I got the phone call. She was home alone with her dad, that he had just died in her arms. So we put off the announcement of the engagement for a little while, but about a month later, we got engaged, and then began to make more specific plans to get married. We were going to wait until after I graduated. The Korean War was heating up, and they were deferring young men during the war to finish their education, so in my junior year of law school, I was married.


Back to top

Mr. Lane:
This would have been 1950, would it?

Justice Brennan:
1951. In 1951, I was married in April, April 28th. In my senior year, my son Tom was born in 1952. He was born in March. That senior year, I got into the Hearst Oratorical Contest again, and I won it at the University of Detroit and then I went to the tournament at the old Savognard Club, I think it was...no, it was a club up in the top of the Penobscot Building. I can't tell you the name of it, but anyway, they had the finals there. College representatives were all there. The judges went back. They came out and were about to announce the winner when Harry Tayler who was the guy from the Detroit Times who ran the contest had this whispered conversation. The judges went back in and then came back out and announced the winner, and it was the guy from Wayne State or whatever, and then they came over and told me that I had won by the vote of the judges but that Harry had had a ruling from the home office of the Hearst People, that I was ineligible because I was a fifth year student. Well, I was still an undergraduate. I had never gotten a degree of any kind, and originally thought I was eligible for the competition. They had gotten this ruling that I was ineligible so they had to take it away from me, okay. But they were kind enough to give me the same savings bonds that I would have received had I won, but I didn't get to go on to New York to the next level of competition. That was, in a way, not a bad thing because you know, oftentimes, good comes out of evil, because I think the Detroit Times, Harry Tayler, felt very badly that they had sort of misused me this way. The decision had been deliberately made that if I didn't win, it didn't matter so they weren't going to say anything but if I did win, they were going to have to take it away, so a day or so later or the next day in the Detroit Times, a big picture of Tom and Polly Brennan at the dinner, at the banquet and so on and so forth and the story tells the winners of the competition and so forth, but there was also this young law school student at the University of Detroit who happens, at this time, to be a candidate for the state legislature, which I was in 1952. I was then working at Burton Abstract and Title Company as a loan closer, and I had decided to run for the state legislature. I walked across the street to the City County Building, and I saw old Judge John V. Brennan, and I told him that I was going to run for office, and I expected I'd get a lot of votes because of his popularity and what he'd done for the name, but I would hope that I would not sully the name of Brennan in politics, and he was very impressed with that and my coming to see him. I went out and then got 300 signatures, because I didn't have $100.00 to file a filing fee so I had to get the signatures. That's how I got on the ballot. I ran for the state legislature. Anyway, the Detroit Times, I suppose felt so badly that they had gypped me out of my victory that they gave me a little bit of press and attention. That summer in the primary election, I came fifth out of 80 candidates for 21 nominations to the state legislature. You may not recall this but back in those days, the City of Detroit was one legislative district and had 21 representatives elected at large from the city and of course, the 21 representatives were all Democrats. The Democrats had something like 110 candidates for the 21 positions, and the Republicans had 80 candidates for the 21 positions on the ballot. I came fifth out of the 80 and was nominated whereupon the Detroit Times did an editorial about what...it was called "A Healthy Political Sign", and the gist of the editorial was here was a young man who had gotten his start in politics in part, largely though the aegis of the Detroit Times' Hearst Oratorical Competition and that he had recently competed speaking about Henry Clay. Henry Clay was the subject of the competition and how ironic it was or coincidental it was that Henry Clay had gotten his start in politics at the age of 23, and here was this young man Brennan getting started at the age of 23, and he had demonstrated his abilities, etc., etc., and his dedication to the American tradition by his involvement in the oratorical competition which was what they were trying to do with the college students, encourage them to get interested in government and politics, and now he had proven that he had the practical ability to translate all that academic into the real world and that they predicted a bright future for this young man. Anyway, my mother saved that editorial, and of course, I have it. It's around some place.


Back to top

Mr. Lane:
Did it do you any good on November 5th?

Justice Brennan:
Well, of course it didn't, because you know, the Democrats were going to elect all 21. Everybody knew that. Anybody with any sense knew that. I didn't have any sense, and I thought that if I campaigned hard, I might win so I took my vacation and I went out to the Ford Rouge Plant and stood out there and gave my cards out to people and some of these union guys, the Polish and the Tennessee rednecks and the blacks coming out saying, "What are you doing here? You Republican? What are you doing here?". I'd just keep smiling and handing out my cards and waiting it out. In any case, I ran fifth among the Republicans in the run-off just as I had in the primary and all of the Republicans ran behind all of the Democrats in the run-off as you can well imagine, so that was my start. In 1952, my son Tom was born. I ran for the state legislature. I met Dwight Eisenhower. Eisenhower was the inspiration really for me to get into politics at that time, and...I shook his hand. It was one of those memorable things for a young man, but I do remember being out with my brother campaigning and putting my cards on the windshields of cars in the parking lot outside of the Masonic Temple where they were having a big rally for Eisenhower, and he was inside making a speech, and I was listening to him on the radio in the car, and he said, "I will go to Korea", and I remember that statement and the tremendous impact that it had on me as a young man liable to the draft and perhaps to go there.

Mr. Lane:
That's where he made the declaration?

Justice Brennan:
That's where he made the declaration, at the Masonic Temple in Detroit.

Justice Brennan:
That was the total content of the campaign. Oh, yes, and the American people believed that if Dwight Eisenhower would go to Korea, this thing was going to end, you know. He'd find a way to do it. It was a very dramatic and visual way for him to state his objectives, and maybe had nothing else in mind except that he was going to go over and see what this thing was all about.

Mr. Lane:
You don't happen to know the political genius of that just by chance?

Justice Brennan:
No, I don't know where that came from.

Justice Brennan:
That was a stroke of genius.

Justice Brennan:
Oh, yes, no question about it. He was like "Read my lips". So anyway, I went on and graduated...

(End of side 2, tape 1)


Topic 4: Justice Brennan discusses opening his own law practice, various unsuccessful political campaigns, his children; campaigning and being elected for Common Pleas Court


Back to top

Mr. Lane:
This is tape 2, and let's get on with the graduation.

Justice Brennan:
So anyway, I graduated from law school in 1952. I was then working at the Burton Abstract and Title Company. I took the bar examination that summer past and was admitted to the State Bar of Michigan in January, 1953. During 1953, I simply worked at the Burton Abstract and Title Company. Polly and I bought a home on Silverlawn Street on the west side of Detroit. It was an older home. It was owned by the Masonic Association because the widow had deeded it to the Association, and she was being taken care of for the rest of her life by them. I think I paid $9,800.00 for the house, had to borrow the down payment from my employer, Burton Abstract, sold the car that we had that Polly had inherited from her father and spent the next year or so going to the store with a little red wagon to bring home our groceries. I remember waiting for the bus in front of Sears and Roebuck Company in the rain and cold, thinking to myself, "Any kind of a car, Lord, any kind of a car", and every car that would go by, the worst old rattle-trap, that guy would be in his car going to work and I'd be standing on the corner. Anyway, but we struggled, worked hard on the house, painted and wallpapered and fixed up and that sort of thing. Then in 1954, I ran for the state legislature again. This time, they had cut the City of Detroit into districts, so I was running from a west-side district where three candidates were to be elected, and again, I led the ticket with the Republicans, among the Republicans, and the Republicans all lost to the Democrats in the run-off. That was in 1954.

Mr. Lane:
Did you file by petition in that campaign?

Justice Brennan:
No, I think in that case, I filed $100.00 filing fee. In 1955, early in 1955...well, late in 1954, I got a phone call from Bob Waldron whom I didn't know but he told me that it had been suggested to him that he call me by Art Bonk, a mutual friend.

Mr. Lane:
Bonk, B-o-n-k?

Justice Brennan:
B-o-n-k, and that Bob had recently been elected to the legislature, had a small law office in downtown Detroit, was looking for an associate and was I interested. It happened that I had a little bit of business, law business of my own. Largely, one of my best clients was my wife's uncle who had a piece of property that he had to foreclose on or something, and I had a fee coming in from him on that, so I agreed with Bob to go into the law practice. On the first of January, 1955, I started into the law practice, just the two of us. We had a two-room office, one office for the lawyer and an outer office for the secretary. Of course, we didn't have a secretary, and I sat where the secretary would be whenever Bob was in town and when he wasn't in town, I could sit at the lawyer's desk. We would have secretaries from other law offices come in in the evening and do our typing for us and so on. That's where we started out. We were there for a little while and then we moved over to the First National Building where I had my own office which was a wonderful thing, 1955, and I remember the first month in my law practice, I had been making $325.00/month working for the law firm of Kenney, Radom and Rockwell when I left at the end of 1954, and in my first month in the law practice, I grossed $950.00. My expenses were $240.00 so I took home or grossed around $700.00 which was twice what I had made working for Kenney, Radom and Rockwell. I was ecstatic. I said, "How long has this been going on? Where have I been all these years?"

Mr. Lane:
How do you spell Kenney, Radom and Rockwell?

Justice Brennan:
The owner of the firm was Mr. Frank E. Kenney, K-e-n-n-e-y. Radom, R-a-d-o-m, and Rockwell, R-o-c-k-w-e-l-l. So anyway, the second month, however, I only grossed about $270.00 and my expenses were $240.00 so that all of a sudden, it didn't look so good, but we did all right and kept body and soul together in 1955. Well then in 1956, my twins were born in March of 1956, and I was still practicing law with Bob Waldron at the time. I think perhaps by then, my brother Terry had come with us. He had been working for an insurance company and I persuaded him to come into the law practice with us.

Mr. Lane:
He was a lawyer?

Justice Brennan:
He became a lawyer. He went to law school after I did. He was older, but a little later getting started. Then came...okay, the twins were born, Peggy and John were born in 1956. We were struggling. I had to give up my home, the house we bought. Polly went to work teaching. That was before the twins were born, and we rented an upper flat near Six Mile and Wyoming on Cherrylawn Street. We lived in that two bedroom upper flat when the twins were born so there we were with three children in a two bedroom upper flat. Then in 1957, I ran for Common Pleas Court Judge. Oh, I left something out. In 1954, I ran for the state legislature. In 1955, I ran for the United States Congress.


Back to top

Mr. Lane:
16th District.

Justice Brennan:
In the old 16th District when John Dingell, Sr. died and his son was a candidate for the Democratic nomination and was nominated by the Democrats. John Dingell was 29 years old. This was not a special election.

Justice Brennan:
It was a special election. The election occurred in December, 1955, and I was 26 years old, and there was a newspaper strike during the campaign, and as a matter of fact, I think John Dingell was elected with 19,000 votes and I had something like, I don't know, 5,000 or 6,000 votes or something like that, but that was the whole thing. I could talk a lot about that campaign, but for example, I was making somewhat of a fuss about the Emmet Till case at that time which was a lynching case in the South, we're talking about. I remember one of the things of my campaign was it's all right to have state's rights but what about the state's responsibilities. For every right, there's got to be an equal responsibility. I talked in terms of constitutional amendments detailing state's responsibilities with respect to civil rights and things of that kind. I was regarded by some people out in Grosse Pointe as a communist and they referred to me as a communist or a communist leaning, pinko, liberal character. As a matter of fact, one time when all the Republicans were going to come into this special district and help work on the campaign, there was a certain group of Republicans in Grosse Pointe telling people not to get on the bus, literally were there physically urging people not to go on the bus. So anyway, we lost. That was 1955. In 1956, the twins were born. In 1957, I ran for Common Pleas Court Judge. I ran fifth in the primary. Elvin Davenport was elected the judge.

Mr. Lane:
This was non-partisan.

Justice Brennan:
Non-partisan election.

Mr. Lane:
So when you were fifth, you were #5 on a...

Justice Brennan:
On a list of maybe 20 candidates or so that were running for the job. Number one was Elvin Davenport, a black man, the governor's appointee to the Common Pleas Court who was running to keep his position. Number two was Charles Kaufman who was later elected Common Pleas Court judge, and I can't recall...number three may have been Clarence Reid or Joe Maher and I think maybe Reid was number four and I was number five. Reid had been Lieutenant Governor and Joe Maher had run for judge a number of times, so I figured, well, I'm making progress. You know, I've got a ways to go but I campaigned mostly in my own neighborhood and did very well in the few precincts where I was able to do a fair job of campaigning. In 1958, my son Billy was born. 1958 was a tough year. My dad died. My son Billy was born, and my mother sold us the house on Morley Avenue where I grew up after my dad died.

Mr. Lane:
Did your dad die suddenly or had he been sick?

Justice Brennan:
Yes, quite suddenly. He hadn't been ill, but he got pneumonia, had a heart attack and died. In those days, that sort of thing happened rather quick. He was a smoker, not in good physical shape, 58 years old. It was a blow to me, it really was. Anyway, my mother sold us the house which was a blessing because we were then three and about to be four children in this two bedroom upper flat, and she sold us the house for $11,500.00 as I recall, and gave me $1,000.00 towards the down payment. Out of Dad's insurance money, she gave each of the five of us $1,000.00. Mine was by way of something on the down payment toward the house. So a few months after my dad, or actually, Dad died in April. My son Billy was born in June. We moved into the house in July. In 1959, I ran for Common Pleas Court again, this time again I ran 5th, but there were four to be elected, but the 4th slot was to be a replacement because somebody was not running for re-election. I believe Judge Jeffries was too old to young...it wasn't Jeffries, somebody else, Cartwright or Liddy or somebody.

Mr. Lane:
The people that listen to this tape should be informed that the judicial elections in those times were in odd years, right?

Justice Brennan:
Yes, they were not only in odd years, they were in April. They were in April of the odd numbered years, so I had run in April, 1957 and this was April, 1959. The primary election would be in February and the run-off in April so in February, 1959, I ran 5th behind Charles Kaufman and three incumbent judges, and I was only a couple thousand votes behind Kaufman and figured I could perhaps beat him in the run-off so we worked very hard, spent a lot of money, borrowed money and everything else, and I lost, again...


Back to top

Mr. Lane:
Quite closely...

Justice Brennan:
No, the margin was substantially broadened between Kaufman and me in that run-off.

Mr. Lane:
But at any rate, you had the sense of progress at that point, somewhere in there...

Justice Brennan:
I did, yes. I had a certain amount of encouragement, but I was disappointed because I had gone past Clarence Reid and Joe Maher who...and Bob DeMascio was also nominated that year. He was later a Federal judge, but in any case, I lost to Charles Kaufman in 1959. I remember waking up in the hotel room the next day and being very, very down and discouraged, being in debt and having to go back and rebuild my life and my law practice and so on. In 1960, my daughter Mary Beth was born and then in 1961, I ran for office again, and this time I was elected. This time, I ran fourth out of four to be elected.

Mr. Lane:
This was for Common Pleas Court?

Justice Brennan:
This was for Common Pleas Court and so I was elected by something like 500 or 600 votes over Andy Wood who was a long, well-known, long-serving Detroit Traffic Court referee, and I was 31 years old.

Mr. Lane:
Was this the famous kids campaign?

Justice Brennan:
Kids campaign. We campaigned a lot using high school kids, grade school kids.

Mr. Lane:
How did you recruit them? What was the appeal?

Justice Brennan:
The appeal came out of that whole parochial school system. I was raised by the nuns and taught by the priests and so on, and we went to the parochial schools. We organized the city by parishes. Oh, yes. There were no precincts. It was parishes, and you got a committee in every parish, and we would go into, sometimes go into a Catholic school and teach the kids some Civics and so forth and then before we were through, the nuns would be passing out our postcards and the kids would be addressing them for us, and we'd walk out of the school room with several hundred postcards all addressed, so we did a lot of that. We did a lot of direct mail work with brochures and so on. I also had billboards. I remember the great billboard episode. One of them was...there was an old Democrat from the east side of Detroit named Burt Donlin and Burt had...


Back to top

Mr. Lane:
How do you spell Donlin?

Justice Brennan:
D-o-n-l-i-n, and Burt had suggested to me that what I needed to do was to make hay with the fact that Brennan was a judicial name, so he had suggested to me that I have, and since I had run before and I had supporters already in the community, this was a legitimate thing for me to put on my billboard..."Keep supporting for your Common Pleas Judge Thomas E. Brennan", so the three words that when you were coming down quickly in your car was "Keep Judge Brennan", okay, but the full message was "Keep Supporting for your Common Pleas Judge Thomas E. Brennan". Well, I thought, gee, that sounds pretty good, so we bought the billboards, and we hung them up and so forth and old Judge Cartwright who was one of the candidates who was an incumbent judge was going home on the bus and he saw this billboard, and he just went into a rage, called the Bar Association and the Ethics Committee and we suddenly had the phones ringing off the walls. Louie Rockwell who was a partner in Kenney, Radom and Rockwell was my campaign finance chairman, and a good man and a good counselor. I remember him with this crisis meeting we were having around the table, and Louie saying that we were going to have to take the billboards down and me saying, "They cost us too much money. We'll never be able to raise the money", and he insisting that we'd somehow finding the money to re-do the billboards, so in fact, we did. We re-did the billboards, and what it basically did was it said, "Thomas E. Brennan for Common Pleas Judge" so from a distance, it changed the message from "Keep Judge Brennan", to "Brennan Judge". That was the main push, but at least it was a legitimate billboard. They couldn't stop us from doing that, but I remember that. It was also the campaign in which, toward the end,...I think it was perhaps in the primary because it was very cold weather. I had a group of fellows from the Polish Legion of American Veterans, Post #4, the Abraham Lincoln post down on the west side of Detroit near Michigan Avenue, and they were great supporters of mine, and we got a bunch of hard hats, construction hard hats, and we made these signs on maybe seven or ten foot poles, and the signs themselves were, I'm going to say, 2 x 2 squares, 24" x 24" squares, and each square had one letter of my name in it. We were using the papers left over from the billboards, okay, and so there were seven of them, and they spelled out the name "Brennan" and on the back of those signs spelled out the word "Judge", and I guess one of them said in small letters "for", and then there was a blank, and "Judge", so there were seven billboards as well on the back, so these fellows would march in a row, single file, and as they carried the signs, it read "Brennan", and on signal, they would twist the signs in their hands, and it would change like a walking venetian blind, it would change and say "for Judge", "Brennan" "for Judge", "Brennan" "for Judge", so that was great. We then took this little entourage to the freeway going downtown Detroit and the pedestrian overpass down near the Herman Kiefer Hospital...Ford Hospital and that area near the Boulevard, and there was one great stretch there where there was this pedestrian overpass that probably 3/4 of a mile with straight away with no bridges or overpasses to interrupt you where you could see this pedestrian overpass coming up, and at a strategic time at about 7:00 a.m. on a busy work day, we got this little army of hard-hatted Polish veterans to march back and forth over the freeway with the signs, twisting in their hands on command to read "Brennan" "for judge", "Brennan" "for judge". Well, the result of it was as the motorists approached the overpass, they were curious of this doing up on the overpass, and they would tend to slow their vehicles down and look up through their windshields to see what was happening. If you can imagine on a busy weekday morning, the traffic which normally goes through there at 50 miles/hour is now going through at about 25 miles/hour and they're backed up from the Ford Hospital at Grand Boulevard all the way out to Eight Mile Road, and it is a massive traffic jam. In due course, a police officer arrived on his motorcycle and tells us to get off of there, "Get off that overpass. What are you doing up there?", and Dick Maher, my campaign manager and law partner and I are there to tell the officer that our friends are merely exercising their constitutional rights, and they will not get off the overpass. He huffed and blustered a little bit but of course, we told him we were lawyers, and he wasn't going to bother us. Very shortly, the squad car shows up and after that, the sergeant shows up. After that, the lieutenant shows up from the station and "What's going on here?", and all the same story we go through. Well, in due course, channel 4 showed up or channel 7, whoever, and they got the T.V. pictures of these guys walking over the overpass and so forth and the sign changing from "Brennan", to "for judge". Well, once that happened, we were ready to come off the overpass and let the traffic go. They hauled us in to the station and gave us a lecture. In the meantime, they had lawyers downtown trying to figure out what we were doing that was wrong, and they had nothing to charge us with so they let it go, so that, of course, hit the news that night, hit the newspapers, attracted a lot of attention from a lot of different people.


Back to top

Mr. Lane:
This was 1961?

Justice Brennan:
This was 1961.

Mr. Lane:
Now, who conceived the idea or was it just a lucky hit that somebody said, "Well, why don't we try this?", and then it really worked.

Justice Brennan:
Well, it was my idea, you know, but I...and I didn't have the scenario in mind that we were going to...I didn't think we were going to hold up traffic. I hoped that somebody would notice, you know, and it certainly didn't occur to me that we were going to have police and T.V. cameras there, but once the thing got going, I said, "Hey, this is going to be all right". I began realizing that we were creating a stir, so in any case, that was that story.

Mr. Lane:
Did that help a lot?

Justice Brennan:
I don't know.

Mr. Lane:
This was a state-wide...

Justice Brennan:
A city-wide campaign. You're talking about, in Detroit in those days, was 1,800,000; nearly 2 million people, and we got in the neighborhood of 60,000 votes in February, well in March. I think in February, we were talking 20,000 or 15,000 votes would be a good vote.

Mr. Lane:
In those days, you got a lot more newspaper exposure, too, would you not? Would you get the same thing today?

Justice Brennan:
I think so. Probably. In any case, that was my first winning campaign, and it was a very close race. But then...I was elected in April, but I wasn't sworn in until December and took office the first of January the following year, so I had a long incubation period during which, I cranked down my law practice. I got involved in the election of Jim Brickley for the City Council, worked on his campaign.

Mr. Lane:
Was it your idea to develop the billboards made out of bricks to emphasize the Brickley part?

Justice Brennan:
Yes, that's right. I had a kind of a flare for public relations and that sort of thing, and as a matter of fact, I wrote a whole design for his campaign, why he would be elected, how it was to be done, what the theme of the campaign was and etc., etc.

Mr. Lane:
Do I recall that during this period, the Brinkley-Huntley news team was in much focus and that the Brinkley part of this turned out to be a very...

Justice Brennan:
People kept calling him "Brinkley" because Brinkley was on the T.V. so then...Jim and his wife and Polly and I went up to Jim's father's cottage at Higgins Lake after the primary election. He had won in the primary and it was just kind of a crank down thing and a brainstorming session and I remember the three of them were all napping one afternoon and I was sitting at the kitchen table, laboriously drawing up the name "Brickley" made out of bricks, and I liked it the way it looked. Ultimately, we used that for the billboards, and we used it for bumper stickers and in addition to the name "Brickley" in red bricks, the phrase underneath it was "is the new man for Council", and the "new man" became his theme. That was an interesting thing and at the same time, I was involved in managing a campaign for two Republican candidates to the Constitutional Convention of 1963 which was being elected that very same summer. I managed the campaign of a fellow named Bill Cudlip who was a principle member of the firm of Dickensen, Wright, and he had a pretty easy time. He was being elected from Bob Waldron's Grosse Pointe district.

Mr. Lane:
He also was pretty well-known, was he not?

Justice Brennan:
And pretty well-known, but the one who had the tough campaign that I was very pleased with having engineered a win for him was Rockwell T. Gust, Jr. because Rocky Gus was a candidate in a district which had always been held by the Democrats, and so we managed to get a victory for him, and that was quite an accomplishment.


Back to top

Mr. Lane:
Would this have been in 1961?

Justice Brennan:
Yes, 1961, and in that same year, Jerry Cavanagh was being elected mayor of Detroit, and he was elected in the fall, in the fall municipal election.

Mr. Lane:
You just must have had an extraordinary zeal and taste for this kind of political activity. You just loved to...

Justice Brennan:
Well, I loved it, but you have to understand, Roger, that I didn't have a lot of other options. I mean, what were my assets? I was an Irish kid from the west side of Detroit. I didn't know any lawyers. I didn't have...nobody in my family that was in business. I knew no one in particular that would be a client, you know, a business client or anything like that. I suppose I could go out and chase ambulances or whatever it is and try to get cases, but in terms of getting business, there was no way for me to get business except to be out and about in the community, you know, and be active.

Mr. Lane:
This was an inviting role to progression...

Justice Brennan:
To get to be known, yes. It was one of the ways you could go to get to be known would be to get involved in politics.

Mr. Lane:
I was talking to Otis Smith, and he said in his childhood, the slogan was "Be somebody".

Justice Brennan:
Yes, and that's sort of what this was all about, although oddly enough from the law practice standpoint, it took away from your law practice. You didn't have the time to be with it. You always had people coming in wanting to have you represent them in drunk driving cases because they helped you in your campaign. It was a quid pro quo, you know..."I'll work for you in your campaign or I'll give to your campaign in exchange for you being my lawyer", you know, so it was a very difficult thing to be a successful lawyer. My brother stuck to the last as far as the law practice is concerned, and did very, very well, and he often had admonished me and said, "Why don't you give up this crazy politics thing and be a lawyer, concentrate on being a good lawyer?", and I can remember before that 1961 campaign one time stopping in a church one night when I was agonizing over the decision as to whether to run again after I had been defeated five times, and praying in the back of church, "Lord, either let me win or take this [expletive] ambition out of my head, because I'm ruining my family, my finances and everything else", and my wife was absolutely torn up with the thing. In any case, we did win and that made a difference, although I remember going out the week after I was elected, going to the bank. My banker relative Emmett Sullivan, and borrowing $12,500.00 to pay off debts from the campaign which will give you some kind of an idea representative of 2/3's of the salary of the job. The job paid $18,000 and I borrowed $12,500 to pay off the bills.

Mr. Lane:
In those days, did you have to clear up your debts within so many days after the electoral, date of election? Like is now the case, is it not?

Justice Brennan:
I'm not aware of it, and quite frankly, I think clearing up the debts even today is largely a matter of paper shuffling. I'm sure...

Mr. Lane:
Remember what happened to Alice Gilbert?

Justice Brennan:
No.

Mr. Lane:
You don't. Well, anyway, she ran a campaign...maybe it was Supreme Court. Wasn't it Supreme Court? Didn't she run one time?

Justice Brennan:
Yes, she did.

Mr. Lane:
And she apparently couldn't account for all the money that she spent, and she...somebody rubbed under her nose the provision in the canons that say that within such and such a period of time, you've got to pay your debts or you cannot accept contributions.


Topic 5: Mr. Brennan discusses his experiences in practicing law as preparing him for being a judge and a court case illustrative of injustices in the legal system at that time.


Back to top

Justice Brennan:
Oh, yes.

Mr. Lane:
So she went down to the bank and she got a $72,000.00...how did she pay it off, and she had a real problem.

Justice Brennan:
It was the same way then. The campaign was over, and I don't know that there was any rule that we couldn't have a fundraiser, but as far as I knew, nobody ever had a fundraiser after an election other than maybe within a week after the election, you know, a victory party, and you tried to raise money then, but that would be it, so basically, I had to bite the bullet. I went out and borrowed what amounted to 2/3's of the salary. It would be like a fellow elected today to the Supreme Court which pays $100,000 and going out and borrowing $66,000 to pay off his campaign. Anyway, we went from there, and remember at that time, I had five children. So now it is 1961, and I win the election. In 1962, I was a Common Pleas Court judge. In 1963, Governor Romney appointed me to the Circuit Court. In 1964, I ran for the full term as Circuit Court judge. In the meantime, and that was one of the only windows in the whole history of the state, I did not have a designation as an incumbent though I was an incumbent. Because of the constitution of 1963 which took the incumbency designation away from appointed judges, I did not have a designation. Charlie Kaufman who was still a Common Pleas Court judge made the statement that he was going to run for Circuit Court against Brennan and he was quoted in the paper as saying, "I beat him before, and I'll beat him again". That challenge kind of got my Irish up and anyway, that was a great campaign in 1964 but I led the ticket and I defeated Kaufman.

Mr. Lane:
How did you take to being a judge? You know, here you go in and some guy fits you with a robe for the first time. Do you remember what the sensation was? People coming up in front of you...

Justice Brennan:
First of all, I took to it very well. I took to the profession well for a lot of reasons, I think, and I think a lot of it had to do with my upbringing and my education. The people who taught me and for whom I had great admiration and respect all wore robes. They were nuns and priests. They were the hierarchy of life, you know, in that sense. Ceremony was something I grew up with, religious ceremony - I was an altar boy, you know, so the idea of ceremony was something I was comfortable with and understood, and of course, I was a lawyer and had practiced in the courts so I was very familiar with what happened in the courts and spent a lot of time in the courtrooms. No, I felt very comfortable with it right from the get go.

Mr. Lane:
On Common Pleas, what was the normal diet of a day on the bench?

Justice Brennan:
Well, Common Pleas Court was basically a Civil Court with jurisdiction up to $10,000. It may have been $3,000 originally but it got to $10,000. I think it is $20,000 today, I could be wrong.

Mr. Lane:
A lot of replevin and that sort of thing?

Justice Brennan:
Replevin, basically but the typical thing would be a debt, a business debt, a consumer debt, and one of the things we used to...when I was at Kenney, Radom, Rockwell, the firm did a lot of collection work. That was their big thing and one of our jokes was that the typical defense of a business defendant was "I never ordered the merchandise. It was never delivered. It wasn't what I wanted and besides, it was defective". There were a lot of routine cases. Every morning at 9:30, Joe Kopecky would have a huge room full of people.

Mr. Lane:
He was the clerk, was he?

Justice Brennan:
When I was a young lawyer, and later Pais Getcho was the clerk, and I can't recall who came after him, the assignment clerk. The Clerk of the Court was a man named Ed Hackenjos who was a shirt-tail relative of mine.

Mr. Lane:
Ed...?

Justice Brennan:
Ed Hackenjos, H-a-c-k-e-n-j-o-s. His sister Rhea, married by uncle, Pat Brennan. He was a wonderful man. He was a public servant of the old guard, started out as a young boy working as a clerk and writing down everything he learned about the way the court operated and everything the judges told him and every statute he would check and learn about and so on, and it was all carefully filed in his little black books which he still had when I met him. That little brown book up on the shelf he gave me is the procedures of the old Detroit J.P. Court, I believe, which was the forerunner of the Common Pleas Court. He knew the history of the Common Pleas Court. He could tell you of the election of the judges and had all that stuff recorded in his little book. Wonderful, wonderful public servant. Anyway, so I had people in the court to help me get started as a judge, and I had my own ideas about how a judge ought to operate, because I had been a young lawyer before the judges, and I suffered some the indignities of being put down by the judges. There were many instances that I still think were horrible examples of judicial conduct, arbitrary conduct by judges. I remember a case where one of the old judges, Ralph Liddy who was kind of a character. It was rumored that when he performed weddings that people paid him $10.00 for the wedding that he would take the money and wash it off with soap and water because it was dirty. He didn't want to handle it.


Back to top

Mr. Lane:
L-i-d-d-y?

Justice Brennan:
L-i-d-d-y. He had printed up a little thing that was Judge Liddy's ruler, and it was actually a ruler, but in addition to the inches and so forth on the ruler was Judge Liddy's formula for stopping time of a vehicle, and based on vision and distance and speed and reaction time and etc., etc., he had this mathematical formula that we were supposed to know and be aware of and so on, and he loved to pontificate about his formula and use it wherever he could to decide cases. He was an extremely arbitrary man. There was...at one time when I was practicing, I representing a doctor, my own personal physician, Jack Ronayne, who was owed a bill by a man in Highland Park, and the fellow wouldn't pay him and finally the doctor said, "I'm going to sue him. I think he should pay it", so I sued him. A lawyer came in and represented him, Maurice Cherry, I think his name was, who had a withered arm, and he represented the patient, and I think the bill was $80.00. It wasn't worth the trouble to sue or certainly the trouble to have the doctor come down and yet the money was owed, so I used the Court rule for summary judgment and I prepared a motion for summary judgment and had the doctor sign an affidavit that he really performed the services and that if called to testify, he would say so and so on, and that the bill was reasonable and the amount of it that hadn't been paid. I followed the court rule and I filed the motion. Maurice Cherry on behalf of his client did not file an affidavit of merit as the Court rule required and so on motion day, I went to Judge Liddy, and of course, you didn't argue motions in open court in Common Pleas. They were all decided on the paper work back in the judge's office, but I went in to try to get to see him because the Clerk came out with the file stamped that the motion was denied, and then I tried to get into see him. "Why had he denied it? How could he deny the motion? We followed the Court rule." He wouldn't tell me. He wouldn't talk to me about it. He wouldn't respond, but he denied the motion and awarded $10.00 or $20.00 cost to the defendant. Well, that meant the case had to come down for trial. So I called the doctor. I was so mad. You know, the system wasn't working, and it was made to do that for this very purpose. He said he would come to court. He was as mad as I was, and he agreed to come to court, take off from his busy practice and so he did. The case was assigned to old Judge Tom Kenney who is a nice old guy appointed by Harry Kelly, the governor, as a mater of fact, had been Harry Kelly's legal advisor. I later, when I served with Harry Kelly on the Michigan Supreme Court, told me that he called Tom Kenney in and he said, "Tom, I want to appoint you Common Pleas Court judge, but I've got to have one promise from you". "Anything you want, governor". "You'll never touch another drop to drink as long as you live", and he said, "You've got it". He made the promise, became a Common Pleas Court judge and never walked into his office any day in the morning without looking towards heaven and thanking God and Harry Kelly. He was a happy man. He loved his job, and he was a nice man. He was a kindly man, and he was a good judge but he was, like the others, kind of arbitrary, very arbitrary, mostly because kind of rules of thumb that he had developed through the years as being a judge, so I'll tell you the story. We're now assigned to Judge Kenney. I've got my client with me. Maurice Cherry is there. He doesn't have his client with him. The case is called and goes to Tom Kenney. It's about to start and Cherry stands up and says, "Your Honor, before we begin, the counsel made a motion for summary judgment before Judge Liddy that was denied and Judge Liddy awarded my $10.00 in costs and the costs have not been paid. I don't think that I should be forced to defend this case until counsel and the plaintiff pay me my costs". Kenney says, "Pay him his costs. I'm not going to hear this case unless you pay him his costs". I said, "Your Honor, I should have won that motion, and we're about to try the case, and it's going to prove that I should have won the motion because he doesn't even have a witness with him". "Pay him the costs or I'm not going to hear the case". I took out my checkbook, and I wrote a check for $10.00 to Maurice Cherry and I handed it to him right there in open court. We then proceeded to put my client on the witness stand. He testified that the bill was owing and had never been paid, that the services were performed. Cherry gets up and he says, "Doctor, when you were called to this man's house, was he conscious or unconscious". He said, "He was unconscious. He'd had a heart attack". "What did you do?". He said, "I examined him and called the hospital and had him admitted as a heart patient." "Then what did you do?" "Well, nothing. I saw him in the hospital one time and then I was relieved of the case because the family doctor got there to take over. I was just on emergency duty". "Well, did you ever talk to the man?" "No, I never talked to the man. I never saw him awake, never talked to him". "So you never made a contract with him for services?" "No, I didn't. The judge said, "Wait a minute...

(End of side 1, tape 2)


Topic 6: Justice Brennan continues talking about the court case from Side A. He also talks about being appointed to the Circuit Court by Governor Romney in 1963, instituting an "anniversary system" to handle cases in his court room, and other issues of judicial administration and credibility


Back to top

Justice Brennan:
The judge said, Kenney said, "Well, that's no defense. There's an implied contract. The man is sick with a heart attack and a doctor is called. There is an implied contract for medical services. Is that all the defense you've got, Counsel?" "That's all I've got". "Well, I am going to award judgment for the Plaintiff, $5.00 cost". I'm on my feet - "Your Honor, I just paid the guy $10.00 in cost for the motion". "Oh, that was the motion. You lost the motion but you won the trial". I said, "I can't win the trial and lose the motion because the motion was that there shouldn't even have been a trial because there is no defense". "That's right. There's no defense and you win. That's all. Judgment for the plaintiff", and he starts off the bench. I said, "Your Honor, can I make a motion?" He says, "You can do anything you want", so I rushed back to my office. I got out the statute. The statute says among other things that if a motion for summary judgment be made and denied on the basis of an affidavit of merit even, and it should then appear at the trial that the motion should have been granted because in fact, there was no defense, then not only should the plaintiff have judgment but he shall have treble costs as a discipline for the improper affidavit of merits having been filed. So I prepared my motion, I want treble costs. I go back and file it with Kenney and show him the statute in the court rule and so forth that entitles me to it. He said, "You're not going to get that from me. If you want to take it up to the Circuit Court, they read all those books and they do all that law stuff up there. I just make decision about people's cases, between the good guys and bad guys, that's all I do. We don't do those fancy things in my courtroom." That was the way it came down. Well, I went back to the office and of course, the only thing I could do. We were never going to collect a dime of this $80.00 from this deadbeat anyway, but I called the bank and stopped payment on the check, so I at least saved the $10.00, and at this time, I was working for Kenney, Radom and Rockwell. In due course of time, Mr. Kenney himself came into my office a month later, and he said, "You stopped payment on a check you gave to a lawyer in open court?" I said, "I sure did". He said, "You can't do that. That's unethical". I said, "The hell it is. What's unethical is this lying son of a [expletive] that comes into court and defends when he hasn't got a defense and doesn't file an affidavit of merits when the court rule requires him to do so and then insists that he won't go forward until I pay the costs that he is not entitled to." "Well, I never heard of such a thing, stopping payment on a check to another lawyer". I said, "Well, sue me". I understood years later that old man Kenney made up the $10.00 to this guy Maurice Cherry, but they never got it out of me. Anyway, I tell you this story because a young lawyer, the perspective of a young lawyer in a busy court like that was that there was a lot of injustice, and there was. The game wasn't being played by the books. It was being played by the guts of these old timers who by and large, administered pretty decent level of visceral justice. It was self-government in its raw form. It worked. These people were being re-elected year after year. They were popular. They had the prestige of being judges. They did get the cases decided and moved the docket, cleared out the assignment clerk's room full of people every morning, but it was very unsatisfying to a young lawyer who thought that the thing should have been played the way he learned it in law school. One of the things that I decided was that when I got to be a judge, I was always going to make a statement from the bench about what caused me to make the decision that I made one way or the other, and...


Back to top

Mr. Lane:
As the constitution requires you to do if you're a Supreme Court justice?

Justice Brennan:
That's right. I'll just finished that little observation with the thought that I learned later that I was appealed more than any other judge of the Common Pleas Court during the two years that I was there. I wasn't reversed, but I was appealed, and I came to realize that the reason I was being appealed was because I gave so much explanation as to what I was doing and why that I gave people a lot of things to shoot at, that the other older judges, more-experienced judges realized was not a good idea, at least they didn't think so. If you just said, "Judgment for the plaintiff", it was sort of a like an umpire in a game saying "safe" or "out" or whatever. Anyway, or a jury verdict which gives you nothing to quarrel with, but when the judge tells you why he felt this way and that way, you want to argue him out of his position. Anyway, moving along...Romney appointed me to the Circuit Court. I ran for that job. I served a couple years on the Circuit bench.

Mr. Lane:
Did you find that a lot more challenging?

Justice Brennan:
Yes, I liked that work. Circuit Court judge is the highest nisi prius court in the land, and you get all kinds of cases at the factual level. I took some interest in administration when I was on the Circuit Court, and we went through a time when the Supreme Court ordered us to divide up our docket. The Circuit Court in Wayne County had a common docket where all the cases were simply assigned to the first judge who was available as they were ready for trial, and the big quarrel was should we have the individual assignment system. Well, we didn't want it, but the Supreme Court wanted us to do it, and finally they ordered us to do it. So I undertook...I did a couple things in connection with that. The first reaction that our judges had was "well, it's going to take six months to a year to take all the cases in the court and divide them up among the twenty judges". They had some idea that there was going to be some sort of bureaucrat who would examine each file and say, "This one goes to Judge so-and-so. This one goes to Judge so-and-so". Finally, at one of the judges' meetings, I said, "Look, why don't we simply use the case numbers to divide the cases. It will all come out in the wash statistically. We are all going to get 1,000 or 1,500 cases, so you'll get your fair share of divorce and your fair share of personal injury cases and so on. It might be off by one or two, but who cares? It will all come out". "Well, how can you do that?". I said, "Well, obviously, you've got twenty judges and you've got only ten digits, so you can't say everybody takes all the cases that end in 1 or 2 or 3, but the code very simply is you take the last two digits, and if the case number ends in an even number and then a two, it goes to Judge so-and-so, even number and a three, it goes to Judge so-and-so. If it an odd number and a two, then it is so-and-so". A very simple twenty digit system, and oh, my, you'd have thought I invented the IBM computer, you know. These people..."Oh, what a wonderful idea", so we published a notice in the Legal News that this was the scheme and within a week, we had divided the cases among all the judges. I took my 1,500 or so cases and I told the clerk to go get them. I wanted to see the files. I wanted to see what 1,500 case docket looks like.

Mr. Lane:
You mean to bring the record into a certain room?

Justice Brennan:
Yes, bring them all up to me.

Mr. Lane:
Of course, the records were smaller, I guess.

Justice Brennan:
It's like a file. You know, 1,500 files is a pile. I don't think I had all 1,500 at one time, but I had them come up by hundreds or two hundreds and I went through them. I shortly discovered that the cases were in all states or preparation. There were a vast number of them where the file showed nothing except that the case had been started and a year or more had gone by and nothing had happened at all, and there was nothing in the file to indicate what might be happening or have happened. So I decided upon a system, and I have always had a great interest in systems, and tend to think in terms of systems, and my system was that I wanted to get every case up for trial within a year of the day the case was started. So I devised what I call the "anniversary system", and the anniversary system very simply said that every case on my docket would be set for trial one year from the date on which the case was started, and two years and three years and four years from the date on which the case was started. In other words, every year on the anniversary of commencement of that law suit, the case would be set for trial if it hadn't yet been disposed of. Now, what did that mean? Well, it meant that every day of the year with 1,500 cases, there were probably 200 to 220 working days of the year, I had probably seven or eight. Let's see, 200 x 10 would be 2,000, so it wasn't 10, but it was probably seven cases set for trial.


Back to top

Mr. Lane:
Actually notice went to the attorneys?

Justice Brennan:
Oh, yes. They were informed - "Your case is set for Tuesday, October 3rd. Your case is set for Tuesday, October 3rd". Both sides were informed, and so when Tuesday morning dawned, I have seven cases. Of those seven cases, four of them are on their first anniversary. One of them is on the second anniversary or whatever, and let's say most of the one year cases - none of them are ready for trial. The two year case is ready to go to trial. It is just about right, you know, they're really ready, there's starting to get a little antsy. The three year case has been ready for trial for a long time, but there's problems on it. The four year case isn't ready for trial at all. The preparation hasn't been done. There are serious problems in terms of proof or the lawyers are incompetent or the lawyers are kicking the gong around for one reason or another, and there are problems on the case, or maybe there is a five year old case, and it is really ripe and over-ripe to go to trial, you know. So starting with the oldest case, call the cases. You start with the five year old case, and I am now struggling with the most difficult problem of all. This case has been five years trying to come to trial. What am I going to do with it? I try to settle it, and I jawbone the people and everything else, threaten to dismiss if they don't go ahead. Maybe I set it for trial and actually start trying the case or threaten to try the case, but surprisingly, the reality of today's doomsday, oftentimes, I'd get rid of that case, and then by 10:30 a.m., I'd go back out to the lawyers and say that I'm ready for the next case. That's the four year old case. In the meantime, people who've got the younger cases are saying, "Well, he's never going to get to us. What can we do? We'd like an adjournment. Can we get a week adjournment, two week adjournment, month adjournment?" The clerk is well-instructed by the judge that he says, "Gentlemen, any of you can have an adjournment right now. We're not going to reach you, but the adjournment will be for one year until the next anniversary". "Oh, my God, you can't do that. I can't wait that long". "Well, we're sorry. Every case on the docket gets its day in court, and its day is the anniversary. That's the only day you get is the anniversary day, and that's the day you get the judge's attention. Other than that, we can't book it because we have seven other cases on any given day you want to mention". Well, a surprising number of cases then would be settled because nobody wanted a one year adjournment and it sometimes put the ball in the other court depending on who was benefitted by delay and who was hurt by delay. The system, I thought, worked fairly well. I wish I had been able to stay with it long enough to really work out all the kinks and see if it couldn't be made to work. Unfortunately, about two months or so into the system, I suddenly had a case that was ready for trial, both sides ready for trial and it was a three or four year old case, and we started trying it. We tried that case for six or seven weeks, and every day for six or seven weeks, I had seven sets of lawyers in my courtroom in the morning saying, "We're here. It's our anniversary day". "The judge is trying a case". "When is he going to be through?" "Don't know. It will be a couple weeks at least." "Well, okay, you mean we'll be ready in two weeks when he is finished with the trial?" "No, because the judge is busy and can't take the case, the only thing we can do is adjourn your case for a year until the next anniversary day". "My God, the case is three years old. You mean I'm going to be four years?" "Yep, you're going to be four years old." "I can't..." "I'm sorry. There's nothing we can do. The system doesn't allow it." Some people would settle, but then some people started raising sand with the Supreme Court and everything about this guy has this crazy one year system and its causing all kinds of problems and everything else. So eventually, realizing that it was difficult for me to keep up when I had...there was nothing you could do with a big law suit, I changed the system and sort of got into the mold with everybody else, but it was an experiment in judicial administration which I have not forgotten and I think better than a lot of other things, it demonstrates the real problem of judicial administration and that is that the system, our system of administration of justice is physically unable to try and settle, adjudicate, settle by adjudication, determine by adjudication all of the disputes that are brought to us. We are physically economically unable to adjudicate more than probably 5%, 1 out of 20 of the cases that come to court, but the strange Catch 22 of the thing is that we're only going to be able to get voluntarily settled those cases where we present to the parties the apparent ability to adjudicate. If you have the apparent ability to adjudicate and willingness, you can force settlement. If you do not have the apparent willingness and ability to adjudicate, settlement doesn't come because one side or the other is not being brought to the table, and they have tried everything imaginable to create artificial doomsday, to create artificial last moment to settle voluntarily before the axe falls, and they can't do it because everybody knows the axe isn't going to fall. The system can't try more than 5% of the cases, so I remember I used to laugh about Horace Gilmore who is now the Federal Judge down in Detroit when he was a Circuit Court judge, one of my colleagues on the Circuit bench, and Horace used to say when he would be laboring to try to get the parties to settle a law suit, and he would finally say in exasperation, "That's it, gentleman". He would pull on his robe and say, "We're going to have a final pre-trial". The worse thing you could threaten them with was a final pre-trial conference. It sort of reminded me of the old joke about the guy, the debtor who came whistling down the stairs and his friend said, "What are you smiling about?", and he said, "Well, I owed this money to the credit card company, and I'm glad I've heard the last of them". He said, "You paid them off?" He said, "No, but I got my final notice today". Anyway, ...


Topic 7: In 1966 he was nominated for the Supreme Court and he discusses the election process for Supreme Court justices, the myth of non-partisanship, and the nature of democracy


Back to top

Mr. Lane:
Can you distill out of it?

Justice Brennan:
Yes, I can distill out of it because when I was Chief Justice, there was a rumble out in Oakland County and a bunch of motorcycle type guys got into some big rhubarb, and I forget what it was, but it was a real affront to the peace and good order of the community, and they were all arrested and charged with misdemeanors, and I forget what the misdemeanor was, whether it was noise or something, whatever, traffic or something and so they hauled in these 200 or 300 young people, and they were ruffians and they were high spirited young folks, shall we say. I think they may have been using marijuana or something. I forget what the gravamen of their defense was but a young lawyer of their acquaintance and of their disposition, apparently, got himself involved and began representing these people one after another and demanding jury trials, and the message...the story was in the newspaper and the message got to me here in Lansing that these people were demanding jury trials, and the lawyer was bragging that it would be three years before these people were all brought to trial. They were just laughing at the fact that there was never...really, nothing was going to come of all this. Of course, that brought the whole judicial system into disrepute, and it was an affront to our capacity to govern ourselves, and so as Chief Justice, I ordered the Court Administrator to get on the telephone and round up every District Court judge he could round up within so many counties, and every courtroom that was available, and if need be, get high school gymnasiums. I want to be able to try 200 cases in Oakland County in the next three weeks, jury trials, and we'll get citizens by the bus load to sit as jurors and everything else, but we will try those cases en masse, not en masse but on time and immediately. Everybody gets a speedy trial, and the system is going to be able to handle it. The whole problem went away just like that. We showed the flag, we showed them that we had the capacity and the will to try the cases, and suddenly, they were all settled. They all pled guilty, paid their fines and it was over, but the lesson learned was that the judicial system lives on credibility. If you haven't...and in order to have the credibility, you sometimes have to marshall the forces and do extraordinary things, but if you're willing to do that and capable of doing that, most of the time, you won't ever have to do it. The credibility is there and things roll on. Anyway, that was the lesson.

Mr. Lane:
As far, though, as being able by a scheduling technique to work off cases otherwise that were stagnating, and these are, you know...I'm characterizing this in a certain way...was there, for example...even though you didn't get to follow this thing through and make the various adjustments that perhaps you would have, was there some essential lesson beyond...as to the technique itself, how it might have been adapted? For example, within so many days after discovery begins or something like that, then you start your timetable running, you know...?

Justice Brennan:
No, I never distilled, Roger, any sort of conclusory principle out of the thing. I established that based on certain predilections that I have and assumptions, theories that I have which to my knowledge, have never been...are not being tried or used and haven't been, but my sense of it is that the only deadline that ever counts is the trial day. I believe, and I have believed for a long time, and now people are beginning to come to the view, but I have believed for a long time that our modern pre-trial, what we now call lawyering before trial process, is counter- productive, counter-productive for justice, certainly counter-productive for speedy justice, and counter-productive of affordable justice by a long shot. It really makes...it really introduces an element of gamesmanship into the litigation process so that...lawyers talk about papering the other side to death, you know, and motions and demands and all...all of these things were designed in the 1930's by so-called forward looking liberals whose concept of the system was that somehow it could be made utopian, and that we could have a perfect system of investigatory justice where the judge and lawyers on both sides were all engaged in a common search for the truth and we could take surprise out of the trial, and we could take...we could have better preparation by the lawyers and better...etc.,etc. I could have told you that as many lawyers did, knew that surprise is a great strategic technique. It is also a great insurer of truth. You catch people in a lie, you trap them in a lie, and you prove who is telling the truth and who isn't sometimes with surprise, it will do that for you. That the process of preparing the lawyers is also a process of preparing the witnesses, getting them to rehearse their stories and getting them to recite their stories in certain words and so on so that it becomes artificial, concocted, if you will.


Back to top

Mr. Lane:
Is there anything to be learned from the British system where things seem to be moved with great dispatch and where authority looks down, it seems, on almost all controversy with great rigidity and power...?

Justice Brennan:
Well, I think there's something to be learned from that. Candidly, I said and still believe that there is a great deal to be learned from what was then the Common Pleas Court trial system where a day certain was given, and I mentioned the Assignment Clerks and the roomful of people, and he would call out case and send it to Judge Kenney, call out a case and send it to Judge Dingeman, and when your case was called, you went, and there was no..there was no discovery, there were no interrogatories, there was no pre-trial preparation. The day you were served with a summons, you were told your day to come to court. It was like going to Traffic Court, and well, let's say...you could do that with little cases, you know, and that amuses me because if the process of pre-trial is so productive of a better quality of justice, by what right does society reserve a better quality of justice for larger cases? I mean, to a poor man whose case is $100.00, isn't he entitled to just as fair a hearing and so on? If it is unfair to have a trial without pre-trial discovery, then why is this unfairness visited only upon the poor people?

Mr. Lane:
Did you happen to catch in the Bar Journal about two or three years ago Bill Peterson's article that was not displayed well - it was way in the back of the magazine. It had originally been titled something about judicial pollution, the idea being that trying to transfer the idea of environmental pollution...so much brick-a-brack, baloney, and posturing and delay that is cynical or contrived that all the numbers become fallacy. You talk about numbers, you don't talk about the substance and he said there are cases that ought to be tried and tried promptly, and there's a lot of stuff that by judge made law and for other reasons, it's just jamming up the system.

Justice Brennan:
Oh, I agree with him, and Bill Peterson is a very able man and a very perceptive man, and I think that he has certainly been in the trenches trying law suits up in Cadillac for a long, long time.

Mr. Lane:
I didn't mean to digress...

Justice Brennan:
I would certainly give it a lot of credibility. Anyway, we were sort of talking about my years on the Circuit Bench. There came a time in 1964...I ran for election, and I think I told you I led the ticket and all that and being elected to the Circuit Bench. Then in 1965, my daughter Ellen was born, and in 1966, Governor Romney called me when I was over at my cottage, my mother's cottage, and asked me...or Bob Danhof called on his behalf and asked me to come and visit the governor at his home, and he asked me if I would run for the Supreme Court, accept the nomination of the Republican Party which was about to be bestowed on somebody within about 48 hours of that moment.

Mr. Lane:
You actually did go to Romney's home?

Justice Brennan:
I went to Romney's home over in Bloomfield Hills, right there near Long Lake and Woodward, and he said, "You know, you can't win probably, but two years from now when Ted Souris runs, you can have the nomination. You do your duty now, and you can have the nomination". So I said, "Fine, Governor, whatever you want. You put me on the Circuit Court. I'm happy to do whatever you feel is the way for me to serve the people", so I undertook the assignment.

Mr. Lane:
That was really double-time, wasn't it? The convention was going to be on a Saturday, and this was like a Thursday?

Justice Brennan:
Yes, this was Wednesday or Thursday.

Mr. Lane:
And up until that time, had there been anybody that was front and center for the nomination?

Justice Brennan:
There were a few people poking around trying to get the nomination, but I think one of them was John O'Hara, Jr. Old John P. O'Hara used to be Recorders Court judge, and I think John, Jr. was looking for the nomination as well, but anyway, they asked me to run, and I proceeded to jump in.

Mr. Lane:
That would have been in August?

Justice Brennan:
That was in August, and I was...I don't see it...I thought maybe I had a copy of my talk when I accepted the nomination, but I do remember that I paraphrased Fiorello Laguardia's famous comment when he said, "My only qualification for public office is my monumental ingratitude", and I said, paraphrasing that, I said, "I want all of you to know", and I'm addressing 2,000 Republicans at a convention, "that my only qualification for your partisan nomination to the Michigan Supreme Court is my monumental non-partisanship", and I told them then that I thought that the parties shouldn't be nominating candidates for the Supreme Court, but I would take the nomination and run on that standard. Eventually, because I was just reviewing...we were talking about getting ready for today's discussion...

Mr. Lane:
Did you get a guarantee of so much money to fund into your campaign?

Justice Brennan:
No, there is no guarantee of so much money. They said they'd help me and before it was over, I guess I did get about $60,000. I also tried to raise some money myself. I had conducted a series of luncheons in Detroit. I figured if I could succeed well enough at that, I would make enough money to get out of town, and that would have made a lot of people happy, but...


Back to top

Mr. Lane:
Would it be fair to call these lawyer luncheons?

Justice Brennan:
Yes, basically they were...yes. I took after Tom Kavanagh and Otis Smith, but mostly I mentioned Tom Kavanagh, the then Chief Justice. Because the Michigan..the constitutional revision of 1963 had just been made and come into effect. It was the first election to the Michigan Supreme Court under the constitution of 1963, and what that constitution did that the previous constitution did not do was it permitted an incumbent justice of the Michigan Supreme Court to nominate himself or herself by an affidavit, and I said in one of my speeches during that campaign that this was the first chance that any Michigan Supreme Court justice has ever had to stand tall in the dignity and nobility of his judicial robes and say, "I'm not the Democratic candidate. I'm not the Republican candidate. I am an incumbent justice of the Michigan Supreme Court running for re-election on my own record of impartial non-partisan public service. I seek the support of men of good conscience in both political parties, not because I am philosophically identified with them nor because I have favored their interests but precisely because I have favored no man and feared none". We didn't hear that from the Chief Justice, did we? He filed his affidavit of candidacy as did his running mate and then they went to the state convention of the Democratic Party and proceeded to add its partisan nomination to their own. Sure, it was politically smart, a candidate for public office likes to have all the endorsement and all the support he can get. I'll buy that, but if this was the only reason why they went to the Democratic convention, why didn't they come to the Republican convention, too? George Romney walks in Labor Day parades. Why couldn't Thomas Kavanagh, if he is a non-partisan candidate for a non-partisan office, come and talk to a Republican caucus and ask for support? You know, people laugh when I suggest that the incumbent justices should have come to the Republican conventions. They do. They laugh. They give me the elbow and say, "Aw, come on now. Who are you trying to kid? Republicans know that Kavanagh is a Democrat, and he knows that they know it. He wouldn't have gotten to first base". That laughter worries me. The fact that people laugh at such a suggestion proves to me how deep- seated is the public's cynicism about the myth of non-partisanship on our high court. The plain truth of the matter is that there is nothing strange about the idea whatsoever. The facts are is that it is being done all the time here in Wayne County. I can cite you example after example in Wayne County of judges who were once active Republicans and who enjoy the support of the Democratic party in non-partisan judicial elections. I can cite you example after example of former Democratic office holders who are enthusiastically endorsed by Wayne County Republican organizations in non-partisan judicial elections.

Mr. Lane:
Did that get any newspaper attention?

Justice Brennan:
[Expletive] little.

Mr. Lane:
Practically none.

Justice Brennan:
Practically none. I thought it was a great campaign, and I started off..I talked about how I'd run for office in Detroit and it was always a popularity contest, and we sent out post cards to our friends and I said, "I'm going to do something unusual for me and for all of us who have been active in Wayne County non-partisan judicial politics. I'm going to talk about the issues, and there are issues", and then I started off. That was one of my biggest issues was the fact that here was the Democratic candidates, the candidates, the incumbents who had the right to nominate themselves who had gone only to one party and asked for that nomination and ignored the other party. I guess I told this...talking about non- partisanship and the public conception of non-partisanship. They tell the story of a man who lost his first wife and then after a while, he remarried. He lived with his second wife for a number of years and then she, too, passed away. He buried her a little distance away from the first wife in the same cemetery plot. When the man himself died, they found this instruction in his will: "Bury me exactly between my two beloved wives, but tilt me a little towards Tilly" A lot of the people have the same foolish idea about judges. They want them placed squarely in the middle, but tilted a little one way or the other. So then I went on to say, "I don't like the present system of nominating Supreme Court justices, because I don't believe there should be such things as non-partisan Republicans and non-partisan Democrats. It is a contradiction in terms", and so forth..."Nevertheless, I have the Republican party's nomination for the Supreme Court" and this is where I told them that I had told the delegates the Fiorello Laguardia..."My only qualification for their partisan nomination is my non-partisanship", and so on.


Back to top

Mr. Lane:
Now that we're on the subject, let's finish it. I intended to bring this up, you know. Why is it...first off, is there any way to get the kind of message that you were trying to project...is there any way to get public attention for that, and do you think if there is not, then what hope is there to get away...My God, I suppose you read the papers the other day about the latest development on partisanship on the Michigan Supreme Court where we have a man who was fore-ordained by the demand of his predecessor to be of a certain race, who turns out to have been the governor's...

Justice Brennan:
Legal advisor.

Mr. Lane:
All right, staff man, who is going to be sworn in in Detroit at the Art Institute. For some reason that escapes me, but it sure has very little to do with service on the Supreme Court in the State of Michigan, but anyway, that's only the latest in a succession of events that we could sit here and enumerate for a long time, but do you have an answer? Do you see anything that is hopeful, at least, to our getting away from the evils of what you just described?

Justice Brennan:
Well, I think the most obvious thing which I have said and repeated and continue to believe is true is that we need a simple, non-partisan primary election for the Michigan Supreme Court.

Mr. Lane:
But you never got anywhere in the legislature with this.

Justice Brennan:
The legislature never got anywhere. I got kind of grudging interest from some newspapers when I started out with what I called the Committee for Constitutional Reform some years ago, and I had about four or five constitutional issues including term limitation which is now getting to be a common thing.

Mr. Lane:
Did you get my little note?

Justice Brennan:
Yes, I got your nice note, but I was way out, way ahead on that one, but the non-partisan primary makes all kinds of...you know what happens, Roger? You go out and you say, "This is what we want to do. #1 - There is nothing sexy about constitutional reform. It doesn't put money in anybody's pocket. The average business man, the average wealthy person, what are they going to donate money for? Is this going to do anything good for anybody directly, you know? It is going to get me any ears that I can whisper into in the Capitol? Can I influence legislation? Can I affect my cost of doing business in Michigan? The union guys want to know does it put any money in our guys pockets? Will it raise their unemployment or their pension funds or protect their jobs from being washed out because businesses are being closed or whatever. It isn't going to...they want to talk economics, dollars and cents, taxes and so on, and they want to talk about who, in terms of personality, the newspapers do, is out there. [Expletive] it, Roger, I read these speeches, and I say those are thoughtful statements of...discussions of public policy. I talk from experience about what is good and bad in terms of the way to do...when I give a speech and when I prepare a speech like this typically, you can hear a pin drop in the room. People don't fall asleep when I'm talking and I can talk sometimes for a fairly good length of time. They will come up to me afterwards and tell me what a wonderful speech it was and how interesting it was and persuasive and so on, but two things - they don't interrupt me with applause, and they don't quote me in the newspapers. What I sort of end up discovering that I am, is a pretty good teacher, maybe. I am able to state things...hey, I read them and I say, "That sounds pretty good, you know. Makes sense. It is well stated, clearly enough stated", but it's not sexy enough or simplistic enough to get people to respond to, and when I go out and talk about a non-partisan primary or Committee for Constitutional Reform and whatever else, newspapers want to know if I'm running for governor. That's all they know. They don't care..."Who's running against you, then? Is he a good guy? What bad are you going to say about him? What bad is he going to say about you?"

Mr. Lane:
Let me try to drive a point here. Suppose you took that speech and you went and it's in the appropriate season, not football Rose Bowls or something like that. You went and gave it at East Lansing High School on the proper convocation or whatever they call them, gave the same thing at Sexton High School, and if it were possible to get some kind of cooperation with the people in one of the schools to say, "Now, we're going to have tomorrow...we're going to have somebody with the opposite view, and he's going to give another talk about the same subject matter and then on Friday, we'll have a vote on this matter, or we'll have you all write two page essays on the merits of this proposition", what would be the response. Would you get any more response from that kind of an exercise, and are we talking about something that is so rotten in the system of public awareness, education, political participation? You say what it is, but what the hell is wrong?

Justice Brennan:
Well, what's wrong is that...what's wrong is that the Greek democracy doesn't work, and didn't work in Greece and won't work here, and the founders of this nation didn't envision a Greek democracy, a totally participatory democracy, because you can't conduct a meeting of 250,000,000 people with Parliamentary procedure. You can't, and it's getting to the point where it is questionable that a 480 people in the United States Congress and House of Representatives is a body of appropriate size to conduct business in a parliamentary fashion. It certainly can't do it with 2,000 delegates to the Republican National Convention. I mean, this country was designed to be a representative democracy, a Republican form of government whereby people functioned through their representative. The representatives can understand this kind of thing, and they can vote...

(End of side 2, tape 2)


Topic 8: Justice Brennan discusses the process of voting on the 1963 constitution in regards to his previous remarks on democracy. He then talks about running for the Supreme Court in 1966, the composition of the court at that time and, after his election, the "showdown" for Chief Justice of the Supreme Court, involving most prominently among the justices Mike O'Hara, Thomas Kavanagh, and John Dethmers.


Back to top

Mr. Lane:
Now we're talking.

Justice Brennan:
I think when it comes to talking to the general public and getting the general public to respond favorably or unfavorably to something, they you're got to get into slogans, you've got to get into simplistic presentations and look at the constitution of 1963. People...we adopted a new constitution in this state in 1963, and a lot of good work was accomplished by that convention, and there were excellent people at that convention, and they did a lot of very fine things through the art of compromise and persuasion and whatever else. When it came down to it, the people voted on a new constitution in 1963, and they didn't vote on the specifics on the judicial article or whatever. They voted on conceptually, did they feel we needed a new constitution or was the old one sufficiently described as "horse and buggy" so that the new one was modern and streamlined and so on. Romney went around the state "we're going to have only 19 executive departments. We're going to streamline state government. It's going to be more efficient, going to serve you better". They went with that as the conceptual notion as to why they approved the new constitution, not article by article and line by line how did it improve our form of government. The same thing is true about a non-partisan primary election system. I don't think that the general public, if you were to run a referendum on that subject...maybe they'd fly with it if you could create an ad campaign that would simplify the issue but by and large, those are the kinds of things that ought be included in a convention setting where there is competent representatives working out these problems. That should have been solved in 1963 and wasn't.

Mr. Lane:
Let me tell you another...fly off the subject. I've lived in the same place for 20 years now. It is in Lansing Township. A bunch of tennis courts down at the end of the block. They're deteriorating and going to hell. I politely called attention to Phil Pittenger and various others since then and when I finally get to talk to somebody, they said, "Oh, you've got to come out to the township meeting". Well, I go out there and I discover that this isn't the township product at all. They say, "Well, we got grant money for that, free money from Washington, and we can't do anything about it. We can't wedge $400.00 to paint the lines or do anything like that. We're not in a position to do that. If we could only get some grant money. If we could only get somebody to give us a gift or a citizen". I don't know what. Bicycle paths are coming out of Washington. I used to...in the early days of my residence there, people would knock on the door once in a while and a guy would say, "I'm your committeeman and there's an election coming up. I just wanted to see if you were satisfied with the way your problems are being handled". That doesn't happen anymore. What I'm trying to say is there something about the way the system is decayed or deteriorated or changed, has this got a lot to do with it or am I just sort of picking out some insignificant little straws flying through the wind?

Justice Brennan:
I think that's an important...I think there's been a lot of de-communitizing of our society, of our culture. Certainly, you just drive through any community today and look at the way they're developed. You have the strip and the McDonald's and so on, and how many people you talk to of your age or my age and say, "Well, how's your kids, your family?". "Well, I've got four kids and this one is in California and that one is in South Dakota", etc., etc. The sense of community and of people taking roots and having roots, I think has changed. Looking to the national government for the solution for everything, and the willingness and readiness of the national government to spend money for local projects, to legislate in local affairs has been, from the days of Franklin Roosevelt, a growing proposition in this country, so yes, I think the nationalization of government and the weakening of local communities which were held together by churches, etc., etc., that are all becoming unglued, is all part of package you're talking about.

Mr. Lane:
Okay, it probably took too much...

Justice Brennan:
So Romney asked me to run for the Supreme Court in 1966. I did, and let me do this if I can...I'd like to just talk a little bit about that campaign and then I want to talk about the first thing that happened when I went on the Michigan Supreme Court. At that point, I think we can sort of stop. The campaign, as I say, began with a series of luncheons that I held down in Detroit in which I criticized the Chief Justice. Over the next couple months, it became Brennan vs. Kavanagh, Kavanagh vs. Brennan. "Brennan says this about Kavanagh", "Kavanagh says this about Brennan", etc., etc., and Otis Smith got lost in the shuffle, and it happened that I ended up coming in second, Smith came in third and I was elected.


Back to top

Mr. Lane:
You won by 101,000 something, didn't you.

Justice Brennan:
Yes, as I remember, I had 700,000 and he had 600,000. Tom Kavanagh had 1,000,000, so I wasn't even close to him, but for a 37 year old Circuit judge from Wayne County, I did very well. I remember Michael O'Hara was on the Court at the time, and I remember bragging about my performance in the upper peninsula, how I had defeated Tom Kavanagh in Luce County, and I said, "I've never even been in Luce County", and he said, "Well, don't brag about your results in Luce County.". I said, "Why not?" He says, "There's only one thing up there and that's the insane asylum at Newberry". Anyway, but I ran well in Wayne County and I ran well in a number of other places around the state, and I won the election. Otis Smith was very gracious, urged me to appoint his secretary as my secretary which I did, and she served me on the Court during a number of years until she retired. She was a lawyer. Mary Lou Shepherd was her name.

Mr. Lane:
She is still around, isn't she?

Justice Brennan:
Oh, yes, she is still around. She had graduated from Leland Carr's school of legal studies and had taken the bar as did Mike O'Hara. That's how he took the bar. As a matter of fact, when I went on the Supreme Court, two colleagues of mine had not graduated from Law School, Mike O'Hara and Gene Black. Black spent one day at the Detroit College of Law, didn't like it, went home and studied law in somebody's law office, and I think Mike may have had a year at Notre Dame Law School, but he never graduated from law school, and he actually studied under Judge Carr before he became a lawyer. As soon as I won the election, I began getting phone calls from Gene Black who was a marvelously conspiratorial gentleman, you know, and had some very strong feelings about the court. The man literally lived the Michigan Supreme Court. He had no other life, no other interests, and he was very concerned about Tom Kavanagh. He was unhappy with Tom Kavanagh, and the Court in those days just before I came on was full of bitterness and divisiveness, rancor. There was a case called...I want to say Triple X...I may be wrong.

Mr. Lane:
Triple X is right. Triple X is the pharmacy case?

Justice Brennan:
Yes, which had occurred within a year or two before that, and it was a case in which the Court, then having eight members, was divided down the middle, and as I remember hearing about it, half the Court ordered the clerk to issue this kind of an order and half the Court ordered the clerk to issue another kind of an order, and the clerk, being smart, didn't do anything, which is probably the only way he could save his job. So, that was a good example of the kind of thing that occurred.

Mr. Lane:
Let's enumerate who these people are now.

Justice Brennan:
Who was on the Court in 1966...

Mr. Lane:
We can call them off - Carr, Dethmers, Kelly...

Justice Brennan:
No, Carr is not there any longer.

Mr. Lane:
Did you say in 1966?

Justice Brennan:
1966 when I ran for the Court, the Court consisted of Thomas M. Kavanagh, Chief Justice, Harry Kelly and John Dethmers, Michael O'Hara, Paul Adams, Ted Souris,...how many have I named.

Mr. Lane:
You haven't mentioned Black.

Justice Brennan:
Eugene Black.

Mr. Lane:
That would be six. You wouldn't have been on then...Are you sure Carr had gone by then?

Justice Brennan:
[Expletive] it, I can't tell you...Oh, Otis Smith. Did we name Otis Smith?

Mr. Lane:
No, we didn't. You're right.


Back to top

Justice Brennan:
So that's the Court. That's the eight people. Let's go over it again. Thomas Kavanagh, Harry Kelly, John Dethmers, Paul Adams, Ted Souris, Gene Black, Otis Smith,...and...there were three Republicans - O'Hara, Kelly and Dethmers. There were five Democrats - Kavanagh, Souris, Adams, Black and Smith.

Mr. Lane:
Right, if you call Black...

Justice Brennan:
Black was a D...he was nominated with the Democrats. He had been a Republican Attorney General, and he was clearly a maverick on the Court, but you could call it then four...

Mr. Lane:
It went 4:4.

Justice Brennan:
Four Democrats, and he frequently signed with the Republicans on issues, and as he got older, he became increasingly conservative on many, many things. All right, so that was the Court as it existed during my campaign. There were many, many instances of very strong language between Gene Black and Ted Souris. They were just like oil and water. They didn't mix well at all, and they were given to do some, engage in some very strong banter back and forth in the opinions, as a matter of fact. Black, I think, more than any of the others, tended to be a loose cannon on the deck in terms of his rhetoric, and that was one of the things that I said in my campaign, that I laid at the feet of the Chief Justice.

Mr. Lane:
I remember. I was going to ask you about that.

Justice Brennan:
That I said he was responsible, at least, for not being able to control that kind of language as it was coming out of the Court, so obviously when I was elected, I started immediately getting phone calls from Gene Black who wanted to make me the Chief Justice. That idea I found almost bizarre. I was 37 years old. I had never spent even a day on the bench in the Supreme Court. As I told him, I didn't even know where the bathroom was, and he wanted me to be the Chief Justice. I said, "I'm not opposed to being Chief Justice but not now, certainly". Well, then who will be Chief Justice, and I certainly agreed with Gene Black that it shouldn't be Tom Kavanagh. I said, "Well, the logical person is Mike O'Hara". Dethmers had been Chief Justice. He was very much of a laissez faire Chief Justice. He wasn't good on the administrative end of things. He wasn't a good man to go and get money for paper clips from the legislature, you know. He perceived the office of Chief Justice to be more of a ceremonial thing and that sort of let the Court Clerk run the Court in terms of its administrative efficiency. Tom Kavanagh had been a bull in the china shop and he was one of the reasons that Gene and I were in cahoots trying to change the leadership. Harry Kelly was an invalid and on in years and had no interest at all in being Chief Justice. Gene himself knew himself and knew that he was too iconoclastic to be a Chief Justice and besides, he lived in Port Huron and he kept his office on his back porch in Port Huron, and he was simply not a good politician, a very painfully shy person who would never be any good at being even a ceremonial chief justice, so it pretty much came down to either O'Hara or myself and since I was brand new on the Court, all the arrows pointed at Mike O'Hara. So I began talking hard to Mike, and Mike and Mary had invited Polly and me up here to East Lansing shortly after the election. I think that I, or maybe during that campaign, we were their guests for the great Michigan State-Notre Dame 10 to 10 football tie. That was the first game I saw in the stadium there as a matter of fact, but I began working on Mike. I said, "You've got to take it. You're the logical one".

Mr. Lane:
Had you known Mike before that?

Justice Brennan:
No, I really didn't know Mike until that campaign, so I really didn't get to meet him until after the election and we became good friends almost immediately because he was that kind of a person.

Mr. Lane:
Yes, he is a decent guy.

Justice Brennan:
But I was the point man. I talked to Dethmers. I talked to Kelly, and I lined up the votes.

Mr. Lane:
This was...you weren't even on the Court.


Back to top

Justice Brennan:
I wasn't even on the Court. I had never sat with the judges at all. I was just between the election and the first meeting of the Court, and I was out there really working at it. Finally, January rolled around, and it was time for the Court to meet. I came up here and I think in those early days, I used to come and stay either at a motel or at the YMCA. Sometimes I stayed at the YMCA but this particular night, I was out with Mike, and we closed the bar at the Jack Tarr Hotel or Olds Plaza or whatever it was called. I was working very hard on selling him on becoming Chief Justice, and he was being very reticent and finally when they closed the saloon at 2:00 a.m., I had reached the point of being able to persuade him at least to commit to me that he would think about it.

Mr. Lane:
What was his reluctance?

Justice Brennan:
I'll tell you, but finally at 4:30 a.m., I get a phone call and it's Mike and he said, "I can't take it". "Why can't you take it?" "I can't tell you, but I can't take it". So I go into the meeting of the justices for the first time. I greet my colleagues and I sit down, and the first order of business that the Chief Justice announces is the selection of the Chief Justice for the next two years, and Paul Adams, as I recall, made a motion that Thomas M. Kavanagh be re-elected for Chief Justice for the next two years and Ted Souris seconded the nomination whereupon Tom Kavanagh said, "All those in favor, signify by saying 'Aye'", and there were three votes, three affirmative votes. As I recall, he didn't even take the negative votes. He looked around the room and said, "Well, what do you guys want to do?". He realized he had only three votes. "What do you guys want to do?" Now, I had not had a chance to talk to Gene Black or Kelly or Dethmers about the fact that O'Hara was not a candidate and those people were all expecting me to nominate Mike O'Hara, and O'Hara is looking at me and glaring and giving me the negative head shake, and Black is looking at me and looking at O'Hara and looking back at me and trying to figure out what is going on, and I'll bet you the silence in that room lasted for four or five minutes before anybody said a word and finally, Gene Black said in the most exasperated tone of voice, "God [expletive] it, John, I didn't like the way you handled the job of Chief Justice last time, but you're certainly better than Tom is (pointing to Tom Kavanagh), and so I guess we're going to have to make you Chief Justice again. I'll nominate John Dethmers". Harry Kelly...you could have knocked him over. He had no idea what had just happened, but basically, he was...Harry, Kelly and John Dethmers were of the old Republican school, you know, it was a team program for them, and so Dethmers was totally shocked, taken aback, stood up with tears running down his face, and told us all how thrilled he was and how flattered and how appreciative he was that the Court was now about to give him back the Chief Justiceship, or as a matter of fact, I guess we voted before he made that speech, so he became Chief Justice and then he made the speech, but he was clearly deeply shaken and touched by the whole thing, loved being Chief Justice and in fact, had been Chief Justice longer than any other Chief Justice in the history of the state, I think.

Mr. Lane:
Could be.

Justice Brennan:
Because Dethmers had been chosen Chief Justice when he was a relatively young member of the Court and given the responsibility to get the papers and pencils and do all the administrative things at a time when the Carrs and the Kellys and all the other old guys didn't want to be bothered with any of that stuff, so he had had the honor and the glory of doing it, and he...he looked like a justice with the white hair and the deep voice and the very severe demeanor, so anyway, he took back the job. He was an ineffective Chief Justice, to say the least. During his term of office in 1967 and 1968, the first meeting of the State Officers Compensation Commission, formed under an amendment to the constitution, came to be, and he went to...we asked him, the Court instructed him as our representative, our leader, to go down there and put a pitch in for salary increase because we hadn't received one in some length of time, and the Court, members of the Court were then getting $35,000 which was, I think, less than what maybe some of the Circuit Judges were making, at least not a lot more. John Dethmers went to the State Officers Compensation Commission and made a presentation which...if I don't quote it, would paraphrase it very close, okay...he said, "Well, ladies and gentlemen, my colleagues want me to come down here and ask you for some more money. Now, personally, I am very satisfied with the pay. I don't have many wants and needs. I get along nicely, myself and my wife on what you folks are paying me, and the people of the state of Michigan are paying me, but my colleagues; they want some more money and so they'd appreciate a raise". That was his whole presentation, and of course, it resulted as you can well imagine in zero, nothing, though I'm not too sure that the governor didn't get a raise and the legislature, but the judges got nothing.

Mr. Lane:
I think I was there that time, and Gus Scholle showed to the legislature his new full-time legislature...Joe Kowalski...and Gus made a pretty good pitch and of course, these people, most of them, were quite amenable, either for political reasons or his personal charm and all that.

Justice Brennan:
Well, anyway, that's what happened, so two years later, in 1969 when...end of 1968 and the beginning of 1969 when the Chief Justiceship was up again, I was determined to go after it because I felt...one thing I had to do was to do something about the salary. We hadn't gotten a nickel of raise.


Back to top

Mr. Lane:
You had Black's support.

Justice Brennan:
I had Black's support and in the meantime, the Court had gotten down to seven players, and something else happened. Mike O'Hara had been defeated. Duplicate, or should this be Mr. Lane?

Justice Brennan:
T.G. Kavanagh?

Justice Brennan:
T.G. Kavanagh defeated him. Now, you asked me before about why O'Hara wouldn't take the Chief Justiceship. Before I came on the Court in January, 1967, it had been the practice of the justices, almost all of them, to go to the Lansing City Club every day for lunch or frequently for lunch and have a drink oftentimes at lunch. Thomas M. Kavanagh was a frequent participant in that luncheon group. From the day I went on the Court, he didn't go to lunch with the group. I did, Souris, Adams, O'Hara, and Dethmers; all of us went. Harry Kelly generally didn't go because he couldn't get around very well. He was in a wheelchair, and Tom Kavanagh didn't go, but the rest of us were there. Now, 1968 rolls around and O'Hara is defeated by Thomas G. Kavanagh. It's his last day, let's say December, 1968, the last day the Court is meeting with O'Hara as a member of the bench. I'm sitting on the end of the bench. John Dethmers is the Chief Justice. Between Dethmers and myself is Thomas M. Kavanagh, sits next to me. I passed him a note, "Tom, today is Mike's last day. Won't you please make an exception and join us for lunch?" I shoved the note over to him. He takes the note, leans back in his chair and wheels around so his back is facing me, reads it, and a long, long time passes. Meanwhile, counsel is arguing some law suit or another, and suddenly Tom sits straight up in his chair and wheels around to me and leans over so his face is away from the bench, the lawyers arguing the case, and he says to me, "Tom, I have nothing against you personally, but he double-crossed me". I said, "He did?". He said, "Yeah, he did", and that was sort of the end of it. Well, I began piecing the story together with conversations with other people, and the story basically was this: Back in the days when Leland Carr was on the Court and Tom Kavanagh, and we're talking about in the 50's, Tom was elected to the Court and very ambitious to be Chief Justice. Dethmers had been Chief Justice for years. Finally Tom Kavanagh had enough votes to keep Dethmers from being Chief Justice, but he didn't have enough votes to get himself elected Chief Justice. It was a 4:4 standoff, and he pulled the string and ordered his troops to vote for the standoff which they did, and I can't tell you the year, but I'm guessing it was about 1959, around in there. There was a very long period of time when the Court did not have a Chief Justice appropriately elected. Dethmers continued to function as Chief Justice as a hold-over but there was still no Chief Justice. In fact, maybe I can even give you the date on that because there's going to be something in the front of the book to explain that...let's us set the record straight...

Mr. Lane:
You mean there's a footnote on the page that describes the membership of the Supreme Court and who was Chief Justice, that says precisely what the fact was?

Justice Brennan:
I think we may...with a little bit of luck, I may be able to nail down a date or two just to sort of prove that I know what I'm talking about. Maybe to correct a mis-statement if I'm in the middle of making one. I can see already that I'm way off on the timing. Hiriam Bond...I see his name...

Mr. Lane:
Well, one thing to consider is that Mike O'Hara didn't come on until about...was it 1962? Who did he beat?

Justice Brennan:
I'll tell you. That's the story. I'm trying to put it together. Let me put this story together. You'll hear all these...

Mr. Lane:
Mike O'Hara beat Paul Adams.

Justice Brennan:
Yes, you're right. That's the story. You just...you just ended it here. Wait a minute...okay, I'm getting closer now. It's one of these, I think, where it happens. We have this stalemate, and the stalemate, I'm going to tell you, is...here it is.

Mr. Lane:
Which volume is it?

Justice Brennan:
At the beginning of volume 366 of the Michigan Supreme Court Reports which covers a period from March 16, 1962 to July 2, 1962, the front page, the front piece or whatever it is called says Supreme Court and at the top, it says Chief Justice. "John R. Dethmers of Holland. Term expires December 31, 1969", and after that, a footnote #1 and it says at the footnote, at the bottom of the page, "to April 3, 1962", and right underneath that, it says "Leland W. Carr of Lansing, December 31, 1963. His term of office expires" in the footnote #2, and down below, it says, "From April 3, 1962", so on April 3, 1962, the Court broke the deadlock that had existed for at least from January of that year in the office of Chief Justice. Dethmers, Carr and Kelly and Black and Paul Adams...Dethmers, Carr, Kelly, Black and Paul Adams voted for Leland Carr so that Adams joined the maverick Black to vote for the Republican.


Back to top

Mr. Lane:
Where does O'Hara come in?

Justice Brennan:
Wait a minute. O'Hara isn't even on the Court.

Mr. Lane:
Yes, okay.

Justice Brennan:
So now, we have Leland Carr as Chief Justice and Paul Adams is up for election, and Thomas M. Kavanagh is so angry and so offended by the fact that his friend, or his co-fellow Democrat Paul Adams has stepped out of line and voted against him for Chief Justice that Thomas M. Kavanagh went to work on it, and supported Michael D. O'Hara, the Republican nominee for election to the Michigan Supreme Court, took him all over the state to the Knights of Columbus and put in all kinds of endorsements among other such groups to get him elected, and I think also used his influence with the unions to dump Paul Adams. So Adams was defeated and now, I'd have to take a look at exactly when that occurred, but Adams...

Mr. Lane:
This was in an election or...

Justice Brennan:
1962?

Mr. Lane:
Yes, ...

Justice Brennan:
1962.

Mr. Lane:
Sure, because remember O'Hara ran in 1968 and got beat.

Justice Brennan:
Okay, so it would have been what...a short term from 1962 to 1964?

Mr. Lane:
See, Adams had been appointed, and he had, as I recall, he had to run.

Justice Brennan:
Yes.

Mr. Lane:
And then the constitutional script came in there, but I'm almost sure that Adams was beaten by O'Hara.

Justice Brennan:
Oh, I know he was beaten by O'Hara.

Mr. Lane:
It had to have been right in there because Adams came back on...

Justice Brennan:
Adams came back on as a result of an appointment by Swainson, wasn't it?

Mr. Lane:
You're right, and he came on in probably the end of 1963 or the early part of 1964.

Justice Brennan:
No, because Swainson was elected the year of...Swainson was elected governor in 1960.

Mr. Lane:
Oh, Adams ran in one, didn't he? I think Adams ran in one.

Justice Brennan:
We could check it out.


Back to top

Mr. Lane:
He was appointed once.

Justice Brennan:
Yes.

Mr. Lane:
And then he...but you make the point.

Justice Brennan:
The point is that Tom Kavanagh dumped him, and he came back on the Court chastened and never from that day forward in all the time that I was on the Court did he ever waver in his support of Thomas M. Kavanagh for Chief Justice. He had been taught a lesson.

Mr. Lane:
Boy, oh, boy.

Justice Brennan:
In any case, Thomas M.'s view was that Michael O'Hara had doubled-crossed him. I'm going to finish that story, though, by telling you that he did come to lunch, and it was nice. But it does show you, as I learned on the Court, that the politics of the Chief Justiceship are enormous, and they affect the politics of the state in ways that I think are subtle and things that we don't realize, that there's that much division and partisanship, really, in the whole process.

Mr. Lane:
Does it all flow directly out of apportionment, or is there a lot of things?

Justice Brennan:
No, because what I described to you was before the Supreme Court ever had anything to do with apportionment.

Mr. Lane:
Well, in a way. You know, you had that Scholle vs. Hare thing that stirred the waters early.

Justice Brennan:
Yes, I guess that's true.

Mr. Lane:
In fact, you know, the newspaper scuttle probably, very possibly erroneous, was that Souris got the appointment that Adams would have gotten if he had flown right on Scholle vs. Hare, and Souris told me, and I think this is the literal truth that he had been informed by whoever the appropriate person was, Horace continuity, is what follows Lane or Brennan?

Justice Brennan:
Gilmore or somebody, that Adams had been chosen to be appointed to fill the vacancy from Voelker on the Supreme Court, you know, upper peninsula and all that jazz, and that Souris had been told that he was to be appointed Attorney General in Adams' place. That night, Williams came to Detroit, took him out to the country club and said, "You're going to be on the Supreme Court", and Williams later gave some kind of a explanation of what happened because the papers were full of Adams. All the speculation and all that sort of thing, and there had to be some explanation why he'd go down and pick this 33 year old Circuit Judge that served less than one year, and the best explanation, the popular explanation was that Adams was cross-wise with Scholle, and this was denied, and Williams' explanation was "Well, he's so valuable as Attorney General, we're going to keep him there". Maybe that's it for right now. Should we knock it off for now?

PG 83 in transcript, there is a note "starting here"?

Justice Brennan:
Okay, I got O'Hara coming on...

(break in tape)

Mr. Lane:
Justice Brennan, this prompts me to ask you whether, in the light of the strife and the discord that has been engendered in the selection of Chief Justices, not only the time we're just talking about but on other occasions...do you think that this is a problem that has an answer and something that perhaps should be done, or something needs to be done about it?

(interruption in interview)
Back to top

Justice Brennan:
I guess...the quickest way to answer that question, Roger, is to say no, I don't think it's a problem, but that doesn't do justice to the depth of your question. I think you are, as you asked the question, you had in mind the machinations of politics and personal ambition. The carrots and the sticks, all of the accoutrements of human motivation and manipulation that go into achieving power, and perhaps you're wondering whether or not all of those things are not destructive of the institution or somehow interfere with the functioning of the Court. My view of the matter is related, I think, to my concept of human nature and of human society. As we talked yesterday, I think it's pretty clear that my background is as a Roman Catholic and one, I suppose, would assume that means I have a certain respect for authority and kind of the ecclesiastical dictatorship, if you will, that the obvious papal infallibility that we believe in, and certainly the Catholic Church is a structure that doesn't have a particularly Democratic tradition, but the fact of the matter is that while I'm a Catholic and a Roman Catholic in terms of my...the discipline, the faith that I profess, I'm also an American, and I think maybe I embody a whole group of people who are American Catholics in the sense that they have a very strong commitment to and a philosophical connection with the story of the founding of the United States of American, the constitution, the Bill of Rights, our revolution, the Articles of Confederation and so forth, and philosophical idea that the power to govern flows from the consent of the governed. I remember at the University of Detroit in political science classes being taught that Almighty God made people as, among other things, social animals, and our need and our desire to come together in society and in groups is something that is inherent in our nature, as the Almighty created us, and in that sense, in that derivative sense, authority comes from God, not in the way that we used to think the divine right of kings, but derivatively through the way the Lord made us to be social people, to need structures, to need civil authority and so forth, and that is a concept that is very consistent with the belief that the best way to do that is through the consent of the governed and through Democratic structures. It always brings me to the idea that I am not comfortable with the elitist notion that somehow or another, we can find a selection process that will get us wise and benign and competent leadership. A selection process outside of working through the consent of the governed, and I know the failings when you work through the consent of the governed, and I know the failings of the Democratic process, and I've watched in happen not only in the broad governmental situation but in the micro- governmental situations of Boards of Directors, committees, groups, courts that I've served on, the Common Pleas Court, the Circuit Court and ultimately, the Supreme Court. When I went on the Common Pleas Court in Detroit in 1961, I was 31 years old, and I thought this was the epitome of activity here, human professional, social activity, and I remember my very first judges' meeting which was hastily convened down the back hall with judges with the robes flowing, dashing into Judge Conley's office who was then the presiding judge, and we were talking about the business of the Court, whatever was urgent at the moment, and I remember Harry Dingeman coming in and he had a newspaper story, a big picture from the back of the News or the Free Press, I forget which, of Horace Gilmore, then a Circuit Court judge administering the oath of office or enrobing one of a number of municipal judges at a ceremony that was written up in the newspaper...(End of side 1, tape 3)


Topic 9: Justice Brennan discusses his concept of human governments, citing examples from his time as a lawyer and as a judge, and the nature of leadership


Back to top

Justice Brennan:
Municipal judges, we have to remember that this is under the old constitution, were not full-time judicial officers. Most of them served part-time. They weren't prevented from practicing law. They were sort of descendants of the old Justice of the Peace system, and I gathered that what Horace Gilmore was doing on behalf of the Circuit Court was attempting to somewhat professionalize these people or upgrade them or enhance their public image or whatever. Well, Harry Dingeman came in and he held this up when we came to new business in the meeting, and he said, "Look at this. Look what our Circuit Court judges are doing in this county. They're putting robes on these part-time municipal judges out there. They're making it as though these are important judicial officers. Here we are, full time judges in the Common Pleas Court, right downstairs from these people, and the Circuit Court judges on the high and mighty...What do they do for us? Why, the first time we turn our backs, they cut our balls off". I'm sitting there as a young lawyer, not a young judge and expecting that I'm going to be surrounded here with the dignity of the bench, and I listen to this tirade which first of all, was somewhat amusing to me because it seemed to me that if one was going to surgically remove somebody's testicles, they wouldn't do it from the back, you know, so...in any case, that was an experience. I have to back off and tell you that I seem to have had a lot of experiences in my life with judges not acting the way I expected them to. When Polly and I were engaged back in 1950, I think it was, or before we were engaged, I guess...we were going to the light opera at the Masonic Temple. We stopped at the Sheraton Cadillac for a drink at the old motor bar, and while we were sitting there, in came this little white-haired man, and he staggered around the room, and he pinched the ladies on the cheek, and he interrupted people at the bar, and he was making a fool of himself, and we kind of looked over and giggled about him a little bit, and then went on with our looking into each others' eyes and our conversation and then suddenly, I felt this slam on the top of my head and I turned around and here's this little guy, and he's got a pair of rubbers in his hand with which he has just struck me on top of my head. I get up from my chair, and I look at him, and he's probably a foot shorter than I am anyway, or eight inches shorter, and I said, "I beg your pardon". He looks up at me and he says, "Take off your glasses". Well, I wasn't wearing any glasses. About that moment, I forget what I may have said or done, but before I was able to hit him, the bouncers came in or the waiters came in, grabbed him and hustled him out and then the maitre'd came over and apologized and sent us a drink and so forth. Well, minutes later, a lady came over from the next table and said, "You know who that was, don't you?", and I said, "No". She said "That was Vincent Brennan, the Circuit Judge". He was quite a notorious guy. Here is was a law school student with the name of Brennan, and as I told you yesterday, later on, I had gone to see old John V. Brennan who is a very decent and honorable upright public servant, but old Vincent was a lush of the first order by the time I came on the scene, and that was somewhat disillusioning. Anyway, to get back to my story about human governments which is a story about my concept of human governments because you asked me about the method in which we select the Chief Justice and while this may seem somewhat convoluted and off the point, I want to stay with it. After two years on the Common Pleas Court, I was promoted to the Circuit Court by Governor Romney and then I said to myself, "Now, I'm going to be with the real judges. Now I'm going to be with the people whose councils will be conducted with dignity and decorum and I'd better be on my toes". So now the Circuit judges, unlike the Common Pleas Court judges, did not meet in furtive little back hallway mid-day meetings. They met in a hotel over dinner, and so this was great, and we went and had a few drinks, got around the dinner table and there were twenty Circuit Court judges at the time, and I would say most, if not all of them, were there. After a couple drinks and some conviviality, the meeting was called to order by then presiding judge Thomas Murphy, and Tommy Murphy was a very delightful and warm and fuzzy gentleman who had been presiding judge for a number a years at that point, since I think Chet O'Hara had passed along, but by this time, everybody has had a few pops, and so the conversation is loud and people are interrupting one another, and you may remember Lila Neuenfelt who was on the bench at that time. Lila was a female lawyer in days before female lawyers were what they are today. I mean, she obviously went to law school when she was the only woman in the class and survived and succeeded in the law as a lawyer and a judge, sort of against the grain of the day. Well, she was a tough gal, and she could cuss with the boys and drink with the boys, too. There were some stories about that, but I can remember, you know, Carl Weideman "God [expletive] it, Lila, will you shut up?", and on and on, and they were all interrupting each other. I came away from that meeting thinking to myself, "Well, my goodness, it doesn't seem to make any difference where you go, the councils are all conducted about the same". Well, then, two or three more years pass, and I'm elected to the Michigan Supreme Court, and now I'm going to sit around a table with seven jurists of absolute eminence who are state-wide, political based, former governors, former Attorney Generals, people of just great prominence, and I'm thinking to myself, "Now, I better be ready for the real high-class operation". I discovered that tempers are tempers, that people are rude to one another in even that circumstance. Stories you may have heard from others about...this happened before I got there...of Otis Smith pounding the table and breaking the glass on the table at one point in time. I saw through the years justices get up and walk out of the room in a fit of pique over something that was said or done, and it...I became of the opinion that probably if you were to sit in the highest councils of humanity, the Security Council of the United Nations or whatever, expecting it to be so dignified, they'd all be speaking in French, that they'd be cussing at each other, and they would be beset by all of the human emotions and foibles that we all suffer around our own dinner tables. That's just an observation. I believe that in all human affairs, there is leadership. Leadership is a natural instinct of human beings. Some people have it in greater quantity than others. Everybody seeks it, and we have an innate inherent need and urge to have leaders. We give the responsibility to do jobs to the chairman of the committee. We delegate authority. We do that instinctively in our own lives, to our children and so forth, so I believe that the idea that if you put any twelve people on a desert island, they're going to organize. Pretty soon, you're going to have a chairman, vice-chairman and secretary and treasurer.

(interruption in tape)
Back to top

Justice Brennan:
I guess what I'm trying to say is that leadership is the natural thing, and it exhibits itself naturally in every group of people; the mafia, you know, the tribal communities, whatever, and I...I think the processes we've developed, Roberts Rules of Order, the Constitution of the United States, these traditional ways in which men and women organize themselves into social bodies are the civilized overlay over these basic instincts to assimilate and exercise power over one another, so given all of that, I am a believer in democracy, and I am a believer in democracy as the best way of selecting leaders. I believe that all leadership generally begins with the desire of the leader to become a leader. They may not express it, and they...like old George Washington, and they'd always be saying, "I don't want to do it", but nevertheless, that instinct that I know which way this bus should be heading and trying to convey to other people what that image is and get them to get on the bus and go is...I mean, that's what George Washington did. He exercised leadership in his speeches and in the counsel that he gave to his compatriots, and then they recognized that in him and wanted to give him the mantle. I mean, he may have been secretly going home and saying, "Now, I've got so and so's vote today and I got so-and-so's vote today", but when they asked him what he was doing, he'd say, "Oh, I'd rather be retired and living at Mt. Vernon". So I've watched this thing. I watched it when I was a Circuit Court judge. Tommy Murphy was presiding judge. There were several of us young guys, particularly Jim Canham, and myself. Ned Piggins was not that young, but we felt that Tommy Murphy was kind of a bland fellow who wasn't exercising leadership and particularly was not standing up for our Court against the Supreme Court which seemed to be coming and telling us what to do, and we sort of felt that they didn't know what they were talking about because there weren't that many experienced trial court judges on the Michigan Supreme Court. Murphy had what we used to refer to as the 30-year rule. If you ever asked Tommy why we did a certain thing, he'd say, "Well, we've been doing that way for 30 years". That was the 30-year rule. I remember Jim Canham and I going one time to see Ed Piggins and we had been going around from judge to judge in the corridors lining up votes to get somebody new as presiding judge and Piggins was our candidate. We had the list and the two of us had calculated who would vote with us and so on, and we were persuaded that we had the votes to put Piggins in as presiding judge. We went to him and said, "Ed, we got the votes. We've got so-and-so, and so-and-so-, and so-and-so". There were twenty on the bench, and we probably had 12 or whatever number of votes. Piggins said some curious. He said that he wouldn't take it unless it was unanimous and unless every judge on the bench wanted him to be the presiding judge, he would not accept it. Jim and I left his office. We used to play squash every day at noon. I remember talking about it while walking over to the Lafayette Building to play squash and talking about Piggins' failure to grab the brass ring of leadership. Here was an opportunity for him to grab the brass ring and be the presiding judge. We brought him the deal and handed it to him. Now, he would have had some people on the court that wouldn't vote for him, but he would have had a majority, and a working majority, but he didn't want it. What I heard him say was, "I don't want the hassle of trying to lead when people are trying to shoot me down". In other words, "I want the obeyance of all my subjects before I become the king". In a way, that's a little scary. That's not the kind of leadership we're accustomed to in this country, really, and maybe he just figured "I don't want to be bothered with the thing unless everybody wants to go the way I want to go". In due course, I made an effort to try to see if I couldn't get a majority of the court to support me and I was unable to, but then Joe Sullivan came forward and was elected presiding judge and was for a number of years thereafter, but the process by which that occurred was the typical process of pushing and shoving and lining up votes, etc., etc. When my time came on the Supreme Court after Dethmers had been Chief Justice for two years, and I don't know if I told you yesterday the story about the SOC Commission...


Topic 10: Mr. Brennan describes the selection of Chief Justice in February 1969, which he won, his opponent Thomas M. Kavanagh, and his accomplishments during his administration


Back to top

Mr. Lane:
Yes, you did.

Justice Brennan:
And Dethmers going down and saying we wanted a raise. I was so annoyed about that that I was going to run. I decided I would run, and then I started lining up my votes. Gene Black was all for me. He became my campaign manager or my principle advisor and co-conspirator. He thought it was delicious to put in the youngest member of the Court and somebody who was then not 40 years of age. I think I was 38 and so when we were conspiring, maybe 39. They say - I don't know how true it is - that I was the youngest Chief Justice ever in the history of the Court, so I had Black and myself. By that time, there were only seven on the Court, so basically, I needed two more votes. Well, the two votes I needed were Dethmers and Kelly, so I had to get John Dethmers, the then Chief Justice to in effect, step aside and vote for me, and I had to get Harry Kelly as well. Well, I won't bore you with the details of weeks of telephone calls and meetings and visits and discussions with other people including George Romney, talking to some people and so on, but to make a long story short, by the time the meeting rolled around when the decision was to be made...

Mr. Lane:
That would have been January, 1969, right?

Justice Brennan:
Well, I just checked my diary. It wasn't January of 1969. I was elected Chief Justice of the Michigan Supreme Court on February 3, 1969. The meeting wasn't held in January. It was a month later. Apparently Gene Black was not feeling well, and we cancelled the meeting of the Court.

Mr. Lane:
It was the first meeting...

Justice Brennan:
It was the first meeting of the Court administratively, but I think we held court in January without having administrative meeting. So we met. Harry Kelly was in Florida on that day, and in any case, we reconvened and Dethmers had not given me a commitment. I knew he wouldn't vote for Tom Kavanagh. I doubted he would vote for Tom Kavanagh, and I didn't think anybody...I knew that nobody was going to nominate John Dethmers. Basically, he was going to have to decide between Tom Kavanagh and me unless he nominated himself, so the day came and Dethmers said, "Well, the order of business today is the selection of the Chief Justice. How are we going to go about this?" I believe it was Thomas G. Kavanagh who was then on the Court who said, "Well, I nominate Thomas Matthew Kavanagh for Chief Justice". Paul Adams said, "I support the nomination", or I guess there was no support. He just nominated and that was it. Gene Black then said, "I nominate Tom Brennan as Chief Justice", and then Dethmers said, "Are there any other nominations?" and nobody said anything. So he said, "Well, we'll go ahead and vote".

Mr. Lane:
Do you have seconding in this process?

Justice Brennan:
No, there wasn't as I recall. There was just nominations and that was it. So he then proceeded to take the votes.

Mr. Lane:
Was it done...was there anything to the manner in which it was done alphabetically or by seniority or...

Justice Brennan:
Around the table.

Mr. Lane:
Which is a seniority concept?

Justice Brennan:
Not necessarily. I don't...I can visualize where everybody was sitting.

Mr. Lane:
Okay.

Justice Brennan:
But...I can visualize where everyone was sitting, but I can't say that it was by seniority. Dethmers sat at the head of the table. He was Chief Justice. Immediately to his left and around the corner of the table was Gene Black. To Gene Black's left was Thomas G. Kavanagh. At the foot of the table was where I was sitting. To my left around the corner was Paul Adams. To his left which would be to the Chief Justice's right was Thomas M. Kavanagh.

Mr. Lane:
There's one you haven't accounted for. Oh, Kelly wasn't there.


Back to top

Justice Brennan:
Kelly wasn't there, so Gene Black said, "I vote for Tom Brennan". Thomas G. Kavanagh said, "I vote for Tom Kavanagh". I said, "I vote for myself". Paul Adams said, "I vote for Tom Kavanagh", and Tom Kavanagh said, "I vote for myself", so at that point, we had...I had two votes, and Tom Kavanagh had three. Chief Justice said, "Well, let's find out how Harry Kelly votes", and so they summoned Harry Kelly's secretary...Lord, what was her name?...Velma.

Mr. Lane:
She was the one that did the...she was a terrific administrative...she wrote opinions, you know, did a lot of law work, didn't she?

Justice Brennan:
I don't think so. I don't think she did, no. I think she was an excellent secretary and took good care of Harry but I never knew her to do any legal work as such. He had law clerks, a long-standing law clerk. At that time, his law clerk was, I think, Wes Hackett, but in any case, I'm pretty sure her name was Velma. There was a Velma, and I think that's who it was. So she was summoned, and she had been in contact with Harry and of course, he knew what was happening and who he was going to vote for. She entered the room and John Dethmers inquired of her how her boss was going to vote, and she said that Justice Kelly votes for Justice Brennan. Now, the score is 3 to 3 and it now comes to the Chief Justice to make his decision, and he stands up, and he stands behind his chair and he begins to talk about the Court and his years on the Court, and how he had been the Chief Justice the longest of any other person and so on, and the accomplishments of his time as Chief Justice and so on, and how he had felt that he had always done a good job and etc., etc. After saying all these things, he said, "But, it seems that others around here don't feel as I do that my job has been so able, and so it seems the Court is going to appoint someone else rather than me to be the Chief Justice. So now it comes to me to vote for one of the two candidates, and the two candidates are Justice Thomas Matthew Kavanagh, and Justice Thomas E. Brennan. And both of these gentleman have the first name of Thomas, so I am going to tell you all now", and he is dragging this out, dragging it out..."I'm going to tell you all now that I will break the tie between Justice Thomas Kavanagh and Justice Thomas Brennan, and I will break the tie by voting for Thomas...", and he paused, and he looked around, and he let it hang there for about thirty seconds, and then he smiled and said, "Brennan". Well, I thought to myself what a show this guy put on, you know. I got up and thanked everybody for their support and took the chair at the head of the table. Because I was young and because I was anxious to do a good job and certainly didn't see myself as somebody who could begin dictating to all these senior justices the moment that I took over, I jumped right into the business of the Court, and since we had no administrative meeting in January, we had two months of administrative business to attend to including cases and applications for leave and so forth to review and to decide. I jumped right into the agenda for the day, and kept the judges there through the lunch hour which was rare. We never did that in those days. I sent the clerk out for sandwiches and paid for it out of my own pocket and kept them working right through until about 4:00 p.m. Well, I suppose the capitol press corps knew that today was the day for the Chief Justiceship, and I don't know whether they had any idea that there was something going on but by mid-morning, the Court was issuing orders and things were coming down, and they were being stamped by the Clerk of the Court, "Thomas E. Brennan, Chief Justice" for signature, and that is how the press first discovered that there was a new Chief Justice in Michigan. I suspect that they realized is was a somewhat stunning or interesting development at least that this youngest member of the Court was the Chief Justice, so they were anxious to find out the story. The message came in from the clerk that the press wanted me to meet with them and so forth. I said, "I can't. The Court has a lot of work to do today. I'll meet with them tomorrow. You may set up a press conference in the morning". We worked late and that night, I went over to the hotel. I don't know whether it was called the Jack Tar or what in those days to have dinner, and I went there with Thomas G. Kavanagh, and on the way through the lobby at the hotel, I ran into Al Sandner. Do you remember Al?

Mr. Lane:
Oh, yes.


Back to top

Justice Brennan:
He was then, I think, with the News though later he was with the Milliken administration, and he came up and chided me over the fact that I had snubbed the press by not coming out and telling the story of what happened, and if was a sign of the kind of Chief Justice I was going to be, I was going to have trouble with the press during my administration and so on. Well, I said, "Al, you have to understand. I was just elected today as Chief Justice. I am the youngest member of the Court. We had a big agenda, and I just felt that I couldn't break the meeting. It would have been very kind of egotistical of me to break the meeting and come out and announce my victory to the world. To tell you the truth, I like to get my name in the paper as much as anybody else, but I have my job to do, and we'll meet tomorrow morning, and I'll answer all the questions and take all the time it takes to give you a complete interview". What is in the paper the next day? A story by Al Sandner - "New Chief Justice likes to get his name in the paper". So there's how it began, and I began to learn something about the press. I don't know if I told you the story about Thomas Giles Kavanagh coming to me after I was elected Chief Justice, congratulating me, extending his hand, the hand of cooperation and said, "I supported Tom Kavanagh. I think he should be Chief Justice, but now that you're elected, I want you to know that I'm going to help you and do what ever I can...let me know" and so on. It was a very gracious, generous offer, and I said, "Well, I appreciate that. I think the first thing we need to do is to try to placate our brother Tom Kavanagh who is quite unhappy about not being Chief Justice", and he said, "Oh, Tom's a good guy. He'll come along. Why don't we go down and talk to him". So Thomas G. and I went down to see Thomas M. In the confusion of having two Tom Kavanaghs on the Court, I have to tell you, was a real problem. Those of us who were on the Court eventually came to have different ways of saying it. It was "T.G." or "T.M.", Thomas Giles or "T.G.", we sometimes referred to as "Thomas the Good", and "T.M." was sometimes referred to as "Thomas the Mighty". He was also referred to as "Fat Tom Kavanagh", and as "Carson City Fats". Those were the terms of endearment that we developed for him, but he was quite a guy. We went down to Tom's office, and we walked in and Giles Kavanagh said, "Well, Tom, Tom here is our new Chief Justice, and I have just been talking to him and I told him I am going to support him and help him in any way that I can because the Court has a lot to accomplish over the next couple years and I think pulling together, we can do a lot", and so on and so forth, and "I told him I thought you would be generous to work on the team and have a team spirit" and so forth. "Carson City Fats" didn't even look up from his desk, shook his head and said, "He'll get no help from me". "Thanks, Tom, it was nice talking to you", and so we left. I can say this about him. He was a partisan. He was a Democrat to his toes. He was a Roman Catholic to his toes, and a big shooter in the K of C and so on and so forth, a family man, revered by his family. His wife, Agnes, was a saint; tough-minded, decisive, always told you where he was coming from and never varied, never deviated from what he said he was going to do or how he felt about something. I think it was Ted Souris or somebody who said of him, "Tom Kavanagh has been wrong plenty of times, but he has never been in doubt".

Mr. Lane:
That's a good one.


Back to top

Justice Brennan:
It is a good one, and it was a great way to describe him. He was a fighter. He was a hard worker who was always thoroughly prepared for everything he had to do. He was pompous and sort of repetitive when he was presiding at a meeting and making the formal statements and so forth, but he would develop kind of the jargon of the presiding officer with all the appropriate "Harumps" and so forth thrown in. He had a deep sort of stentorian voice which aided in that process, and like most people who are sort of big and solid as he was, stout, he had a way of being, even though he was quite short in stature, of presenting an imposing picture when he was presiding. And when he came to discuss cases and he told you where he stood on the case or how he felt about it, he didn't have to say it twice. He told you where he was coming from, and you marked him down on your book and went on from there because it wasn't going to change. He didn't have a lot of stomach for dialogue and brainstorming or sort of "committee of the whole", gossip or conversation about things. It was either this or that and that was all there was to it. I will jump ahead because I am focusing on Tom Kavanagh for a moment. I visited him in the hospital, I think, a day or two before he died. I remember that, and I remember telling him of my respect for him, and him expressing similar sentiments with respect to me. We were adversaries in so many ways, and on lots of issues. On some issues, we were on the same side. I found him to be a marvelous cohort in the ranks when you were fighting, and I know why the Democrats loved him because he was a guy you wanted to have playing guard if you were playing tackle, you know, whatever. He was a good, solid fighter. We were together on the parochial issue, as I recall, and some others on the Court. He was a good, tough fighter and thorough in his preparation. He was a good man. Anyway, not to say that he was right on a lot of things, or at least in my view. That was the way I became to be elected Chief Justice, and it was a tenuous majority. Quite unlike Ed Piggins, I didn't hesitate to grab the brass ring even though I could only see about a third of it, and get a couple fingers on it at one time. I set out as Chief Justice to...I suppose if I were going to say what was my agenda...my agenda was to try to get the Court to decide some cases for one thing. I felt that we had too often filed multiple opinions where we weren't giving the Bar guidance as to what the law was, and I really felt it was pointless for us to even take cases unless we were in a position to decide them with some authority. As a result, one of the things I did was I held up a lot of cases. I think if you were to look at the productivity of the years 1969 and 1970 when I was Chief Justice in terms of decisions for the Court, it was down, and quite deliberately so. I simply wouldn't release opinions until I was sure that we had tried to hammer out an authoritative majority opinion if it was all possible. If it wasn't possible, I tried to get the judges just to dismiss the case as improvidently granted leave. What was the point in displaying to the Bar that we were seven lawyers who couldn't agree what the law was? And add to our disagreement on the substantive issues our disapproval of each other by the words we were using in expressing our opinions. So I tried very hard to cull some of that stuff out of the books during my period in office. And the other thing that I did quite instinctively, and I don't think I intended to do it as Chief Justice. If you would have asked me what my goals were, I would have said my first goal was to get a raise for the Justices. My second goal was to try to do something about the way we wrote our opinions, but I did discover, I think in those years, that I had somewhat of a knack for innovative administration, and I enjoyed it. One of the first things I did with respect to the SOC Commission for example, I employed an economist from Michigan State University to prepare a report and recommendation to the SOC Commission on behalf of the Supreme Court, and he came in with a big book about that thick. I don't know what it cost us, a couple thousand dollars or whatever for his work, but he had accumulated all the statistics of what lawyers make and what judges make and projected the economy and had done historically the relationship between salaries of judges and salaries of other people and so on, and did a wonderful job which resulted in our getting one of the largest raises we ever got. It went from $35,000 to $42,000 which was a 20% increase. It was belated and I think much deserved but nevertheless, it was an accomplishment of my administration, I felt. We did some other things. We put the first...I think we put the first black on the Board of Law Examiners a little before that. I'm not certain, but it was about that time that Stuart Dunnings went on the Board of Law Examiners.


Topic 11: Justice Brennan recalls appointing Stuart Dunnings to be the first black on the Board of Law Examiners and the establishment of the State Appellate Defenders Office and the Attorney Grievance Panel


Back to top

Mr. Lane:
He was a good one, too, wasn't he?

Justice Brennan:
Yes, an excellent man, and...but it does seem to me that it was during my Chief Justiceship that we put the first young lawyer on the Board of Law Examiners. It was sort of customary to have people of some maturity and stature in the profession, which is good, but there was some sense that the Bar Examination maybe was not being fairly handled. One of the problems was that it wasn't being corrected fast enough. People would take the Bar Examination in July as I did and have to wait until Christmas time to find out if they passed. So another thing we did was that we authorized the employment of readers to assist the Bar Examiners to get the job done, to correct the examinations, but we also appointed Dick Spindle who was a nominee or a recommendation of the Young Lawyers Section of the State Bar, S-p-i-n-d-l-e, later was tragically killed in an auto accident as a young man, but he was the first Young Lawyer Section representative, member of that board. During my time as Chief Justice, we established the SADO, the State Appellate Defenders Office, and that was an interesting thing. That State Appellate Defenders Office was established, was created by a resolution of the Michigan Supreme Court, an administrative order, and we said...it read like a statute. We said, "There shall be... and the Governor shall make an appointment ...and the other person should be appointed by the Supreme Court...and they shall have terms of...", whatever. In other words, we went through and created this whole agency which was funded originally by a grant from the Federal Government because there was a need to get competent lawyers to represent indigent defendants in their appeals. It wasn't a problem at the trial level, but none of the lawyers wanted to take these appeals. They weren't expert in it, and there was very little money it in.

Mr. Lane:
Were you the leading...the point of this whole effort on SADO?

Justice Brennan:
I drafted the administrative order.

Mr. Lane:
That's what I really wanted to know. I somehow got the impression that Thomas Matthew was accorded the...

Justice Brennan:
Credit for it?

Mr. Lane:
Well, my memory could be...you know...

Justice Brennan:
Thomas Matthew Kavanagh, I told you, was a tough fighter and a partisan guy and wonderful adversary who never hesitated to take credit for things he didn't do, and if he took credit for that, I'm not at all surprised, but obviously, he would have been on the Court that voted for it, and I'm sure he was in favor of it, but let's put it this way. It was my idea. It way my idea. I drafted the SADO resolution and the matter was...we created it. Bob Krinock who was my appointee to the Court went out and got the Federal money to do it with, and I regarded it as one of the major accomplishments of my administration as Chief Justice. It was also during my time as Chief Justice that we created the Attorney Grievance Panel.

Mr. Lane:
I was going to ask you about that. May I interrupt just a minute?

Justice Brennan:
Sure.

Mr. Lane:
On the SADO, was the judicial statute if that's what the proper name is, that you drafted...was this later, subsequently supplanted by legislative enactment?

Justice Brennan:
You know, I don't know. I suspect it probably has been in the intervening years. We're talking about twenty years ago.

Mr. Lane:
Oh, yes. Okay, well...

Justice Brennan:
Let me just take a look here.

Mr. Lane:
The reason that I bring this up is that when I arrived in early 1976 and T.G. Kavanagh was called over to the Appropriations Committee and they scrubbed him over pretty good about the amount of money at that time that was flowing into this thing and one of the beefs was, on the part of...

(End of side 2, tape 3)


Topic 12: Justice Brennan talks about the creation of the State Bar Grievance Board in 1969, his Law Day address to the state legislature on the matter, and the creation of a "Crash Program" to handle the case backlog from the 1967 race riots in Detroit


Back to top

Mr. Lane:
...book we're in...

Justice Brennan:
This is from Volume 383 of the Michigan Reports, and it is in the front part, the appendix or whatever they call it...

Mr. Lane:
The Roman numeral..

Justice Brennan:
The Roman numeral..that looks like XXXVI, and it says "The administrative order 1970-1, adopted March 13, 1970...", so that was when I was Chief Justice..."...in the matter of establishment of state-wide defender system whereas the Michigan Commission on Law Enforcement and Criminal Justice..." of which I was a member. As Chief Justice, I sat on that Commission. "...has approved a grant of $40,000 and indicated its intention to provide an additional $30,000 for the establishment of a state-wide appellate public defenders system conditioned upon the establishment of a commission, pursuant to the rule making and superintending control powers of the Supreme Court. It is ordered that a state- wide appellate public defender commission be established subject to the superintending control of the Supreme Court composed of three members to be recommended by the Supreme Court, one member by the Court of Appeals, one member by the Michigan Judges Association, two members by the State Bar of Michigan and appointed by the governor for terms of two years each". There's the order, and if that doesn't sound like legislation, I'll buy you a new hat, but it was quite a bold and I would say in one sense, liberal thing to do. In the area of administration, I was a very liberal sort of guy. I mean, I was a doer. I felt I was, anyway.

Mr. Lane:
Did Milliken then appoint the members?

Justice Brennan:
Oh, yes, he cooperated fully and appointed two members of the State Bar of Michigan and one member of the Michigan Judges...two members of the State Bar of Michigan and appointed by the governor for terms of two years. Then in the very same volume, 383, there is a substantial amendment adopted December 15, 1969 and effective March 1, 1970 of the standards of conduct for lawyers, and Rule 15 which appears on page...that looks like about...I don't know if I'm that good at reading these things..."XLIV". What would "XLIV" be?

Mr. Lane:
That would be 94? Is "L" one hundred? No, "C" is one hundred. "XL" would be 44, wouldn't it? "L" is fifty?

Justice Brennan:
I guess, so that's forty-four. Okay, I see what you're saying. It's "X" before "L" and "I" before "V", so it's ten short of 50 and one short of five, so you're right, 44. On Roman numeral 44, Rule 15 preamble: "There is hereby created within the State Bar of Michigan the State Bar Grievance Board which shall be and which shall constitute the arm of the Supreme Court for the discharge of its exclusive constitutional responsibility to supervise and discipline the members of the State Bar of Michigan", so then the board is created, the composition and here's the interesting thing..."The State Bar Grievance Board shall consist of three lawyers appointed by the Commissioners of the State Bar, two lawyers appointed by the Supreme Court, and two laymen appointed by the Supreme Court". We were the first state that I know of to have laymen on our State Bar Grievance...Lawyer Grievance and Disciplinary body. That...

Mr. Lane:
Excuse me, I'm beginning to see some things now. I'm a good friend of John Murray's. You appointed him, and probably he was T.M...

Justice Brennan:
He was T.M.'s appointee, I remember.

Mr. Lane:
You see, there would be a form of distortion that would come through...you're the Chief Justice. Here's this guy. What the hell does he know about John Murray, but the point is...

Justice Brennan:
Obviously, the Court all agreed to this thing and participated in it.

Mr. Lane:
Certainly.

Justice Brennan:
And I recall now that Tom nominated...suggested John Murray and nominated him. I thought he sounded like a good guy.


Back to top

Mr. Lane:
Oh, he's a heck of a guy, and he was a great credit to that operation. But you know, I'm going to ask you before we get off of this, if you won't for the tape, provide the setting a little bit of why this was necessary, what did it accomplish, how it came about...

Justice Brennan:
I'll be glad to do that, Roger. The background, and I don't know how accurate my details are going to be, but in broad-brush, there was a lawyer in Howell by the name of Martin Lavan.

Mr. Lane:
A rascal.

Justice Brennan:
His reputation was as a rascal. I cannot tell you any of the details of what kind of mischief he was involved in or allegedly involved in. It seemed to me that it had to do with probate cases or a probate case which was either...where the estate was open too long or where the lawyers were alleged to have gotten too large a fees or diverted assets or whatever they were supposed to have done, but Howell in Livingston County in those days, and I think probably still is, is one of those places where confrontation seems to flourish and prosper. I don't know why, but there are certain parts of this earth where human beings tend to be more confrontational than others.

Mr. Lane:
Well, the Ku Klux Klan does pretty well down there.

Justice Brennan:
I don't know. That's possible. In any case, and that may have been part of it, too. I don't know...Lavan, I think, was Catholic, and I don't know if they had any of those in Howell before he came, but suffice it to say that he was in big trouble and that the Free Press or somebody had gotten on that thing, and what came out of it was a series of articles, among other things, criticizing the way in which lawyers discipline themselves, and up until that time, we had to go to the Ethics committees and the State Bar of Michigan was involved in the discipline of lawyers, and they had a somewhat complicated process of voluntary lawyer discipline. It was done by unpaid lawyer volunteers who would be selected to serve on these various panels of hearing officers and so on and so forth. I seem to recall that the story of the Lavan case was one of State Bar discipline which was extraordinarily slow, bureaucratic, repetitive, and the cry was white wash, that this was a white wash, that the Bar was not being responsive and responsible to discipline its members, and that was of a hue and cry which would have been going on in late 1968, maybe early 1969, and it was part of the background for the speech that I gave to the State legislature on 5/1/69. Let me tell you a little bit about that because that was another of the somewhat substantial accomplishments of my administration. I asked the legislature if they would hear me give a talk to them on Law Day. I felt I had a lot of things to say to the legislature about the courts and so forth, and I started off by expressing my appreciation for their invitation.

Mr. Lane:
Excuse me. Did this idea spring just fresh out of your head or did you...was there some inspiration for it or did somebody suggest it or...what was the origin of it from that sense? This was the first time, right.

Justice Brennan:
This was, to my knowledge, the first time that this was done, and it was my idea. I said...no, apparently it was not because I started off by saying, "This is not the first time a Chief Justice has come down to this chamber to speak with the legislature. I hope it will not be the last". It seems to me that Dethmers told me that he had made a speech to the legislature at one time. "...I hope it will not be the last for it seems to me that the judicial branch of the government is equally as important as the executive and the legislative, and it seems to me that communication between the judiciary and the other two departments is not always what it ought to be. Just as it is desireable for the Chief Executive to come here annually and describe the state of the State, so also I believe the Chief Justice should be willing to come from time to time and share with you some thoughts about the state of the law. Law Day, this day set aside for all Americans to consider and grow in their appreciation of the rule of law is a proper occasion for us to look at the state of law in Michigan". Then I went on to talk about how things were going, and incidently, I had invited all the judges in the state to come, to put on their robes and the whole legislative chamber was ringed with these black-robed folks. Interestingly, I said "reforms in the administration of justice do not come easily or quickly nor should they. New Jersey's former Chief Justice Vanderbilt was fond of saying that judicial reform is no sport for the short-winded". I went on to talk on that occasion about, among other things, the discipline of the bar. Let me see if I can find what I said about that, because this sort of was just before or just after we adopted this new grievance procedure. I want to see what I said to the legislature about that.


Back to top

Mr. Lane:
What is the date? Is this 1969 or 1970?

Justice Brennan:
1969.

Mr. Lane:
Was it 1969?

Justice Brennan:
Yes.

Mr. Lane:
You'd only been Chief Justice for a couple months.

Justice Brennan:
I'd been Chief Justice for a couple months, yes. Oh,...because of this Lavan episode, there was a call in some public circles, newspaper editorials and among some legislators for the adoption of Attorney Licensure provisions...let's put the lawyers under the Bureau of Licensing, Professional Licensing, and if you were uninitiated, uninformed, and you read the newspaper, you might have the feeling that lawyers weren't licensed, and that somebody was trying to make sure you had to have a license to practice law.

Mr. Lane:
Well, I think Tom Sharpe had a billing in all this.

Justice Brennan:
Possibly did.

Mr. Lane:
See, that was his territory.

Justice Brennan:
Exactly, and so I wanted to make sure that the legislature understood that...it wasn't necessary for them to pass a law to license lawyers. I said, "No one is permitted to practice law in this state without a license. The license to practice law is issued by the Supreme Court of Michigan only after proper proof that the applicant has the qualifications of education, aptitude and moral fitness which would equip him to accept employment from members of the public as an attorney and counselor and which ready him to participate in the administration of justice as an officer of the court. That license to practice law is a privilege and not a right. It can be taken away for good cause at any time by the same authority from whence it was granted - the Supreme Court, acting through the State Bar of Michigan. No other profession is regulated as completely or judged as sternly as the practice of law. Lawyers by their calling are engaged in continual conflict. In every law suit, one side wins and the other side loses. Dissatisfied clients are a natural occupational hazard for attorneys, distinguishing between legitimate and improper complaints against lawyers is always a delicate matter. Nevertheless, the number of lawyers annually disciplined, suspended and disbarred far exceeds the number in other professions. Like no other profession, lawyers accept their just debts of professional honor. They accept their responsibility to be literally their brother's keeper. They recognize that no lawyer can enjoy public esteem and public confidence so long as some few members of the profession violate sacred private trusts or fail in grave public duties". Here again, I talk about what we just said. "Only recently the Supreme Court again demonstrated its concern for the integrity of its Bar by adopting new rules requiring that formal disciplinary actions against lawyers be made public". The Court directed that first. Until that time, even the formal complaint was in camera. "The Court directed that further, more far reaching renovations be set in motion so that the workings of professional discipline can be more efficient and more worthy of public confidence". I had been talking about "being tarred with the same brush" as somebody, okay, and I talked about it in the context of judges because there had been some criticisms of judges. I don't know...and the Tenure Commission had just been created to discipline judges. I talked about the fact that..."We now have the best, most modern appliances to clean our own house", talking about the judges, now..."If the courts fail to gain and hold public respect because of the misconduct of a few judges, we will have only ourselves to blame, and the wide tar brush by which our public repute is sullied will mark us all with equal cause". When I'm talking about the lawyers, I said, "Here again, the wide tar brush of public disapproval which marks us all marks fairly. We cannot escape its stroke so long as we have skeletons in our closets and the keys to the closet doors in our own hand". So,...


Back to top

Mr. Lane:
That's a little poetic touch.

Justice Brennan:
Yes, I guess so. But at any rate, what I was trying to say was that it's our baby and we'd better fix it and be responsible for it. This reference, I think, had to do with Lavan. "Neither can the courts escape responsibility for the pernicious evil of justice delayed. Estates which hang fire year in and year out damage actions which await the enpanelment of juries while seasons slip by. Persons accused of crime who languish in jail for months on end and a suffering public which must endure continued harassment by criminals out on bond, all of these things fall like a guillotine on the neck of the judiciary". Then we went on to...

Mr. Lane:
If you'll pardon the observation, it sounds like you wrote your own speech.

Justice Brennan:
Oh, I did. I wrote every word of this and all these other volumes of speeches. I love to write speeches.

Mr. Lane:
Well, you know, my observation is not just a throw-away remark. This is intended to inform people that may be listening to this someday that this is not entirely the custom nowadays.

Justice Brennan:
I guess. It's one of those...

Mr. Lane:
Nor is it the custom for Justices of the Supreme Court always to write their own opinions really, in the sense that it used to be.

Justice Brennan:
Well, I always did that, and maybe we'll have time to get to that before we're done here, but I may say just as an interesting sort of side observation a couple things. In that speech, I talked about the consolidation of Recorders Court and the Common Pleas Court and so forth. Later on, while I was Chief Justice, we created the Crash Program down in Detroit. Bob Krinock who was my assistant and I went down and literally opened up the old Recorders Court Building. The Frank Murphy Hall of Justice had been constructed next door to it, across the street, rather, and the old Recorders Court Building was empty. There were literally thousands of criminal cases pending in Detroit that were the sequelae of the 1967 race riots, and here we're talking 1969. It's two years later, and these cases haven't been disposed of, and it was a scandal. I set out to have what was called a Crash Program. I mean, Bob Krinock and I invented the word, the phrase "Crash Program", and we got the Supreme Court to give me the authority to go ahead and get on with this Crash Program. I appointed...

Mr. Lane:
Was this 1969 or 1970?


Back to top

Justice Brennan:
1969. And I remember the day we went down to the old Recorders Court Building and knocked on the door, and the caretaker came to the door. He was the only person in the building. I introduced myself as Chief Justice of the Supreme Court and Bob Krinock as my assistant, and I said, "We're here to look at the courthouse to see what we can do to re-open it and use it for the Crash Program to hear these criminal cases". Well, this fellow had no idea what was going on or whatever except that he was in the presence of the Chief Justice of the Michigan Supreme Court, and he was full of "Yes, sir's", and "No, sir's" and "Please" and "Thank you", so I went through the building with Bob taking notes and saying, "Now, Bob, we'll move this wall and we'll do this, and we'll open that door, and that can be locked off, and we could have the elevator on it to here and to there and so on". "Got that, and got that". This caretaker, he is running around making notes right and left, and no question as to whether or not we'd ever talked to the mayor of the City of Detroit, whether we'd ever...had the approval of the City Council. I mean, this building belonged to the City of Detroit, and it was closed. I was about to re- open it without so much as a by-your-leave from anybody, you know, or any money or any budget or anything like that, so you know, we got through with the building and I said, "This will be fine. Now, Bob, what we're going to do is we're going to get all these district court judges from Wyandotte and Oakland County and St. Clair, Michigan, and Grosse Pointe, and Livingston County, circuit judges, whoever can spare us the time. I want all these people signed in here. I want every one of these courtrooms filed". "Where are we going to get the bailiff?" "They'll bring their own bailiffs. They'll bring the police officer from Inkster and the police officer from River Rouge and so forth, can come with them, and they can bring their own clerks, and if we have to hire court reporters, we'll get them out of the yellow pages of the phone book", and I'm just going around, you know, announcing all these things. Well, you know what? We did it. We did exactly all those crazy things that nobody really questioned that we had the authority to do it. I mean, the Supreme Court gave me sort of a blanket mission to go down and do something about these cases. Within a few weeks, we had the building open. We had literally a dozen or so, at least a half-dozen, maybe eight or ten judges sitting down there. In due course of time, we promulgated or Bob Krinock promulgated at my request what was called the Krinock plan which was my long-standing scheme to try to administratively bring the Recorders and Circuit court together, even though by statute, they still weren't one court but just to get them being administered as one court. I can remember Bob DeMascio was the presiding judge at the Recorders Court and Joe A. Sullivan was the presiding judge at the Circuit court and I remember one occasion where Bob Krinock and I had lunch with Bob DeMascio and Joe Sullivan at Carl's Chop House down in Detroit in an effort to try to get the two courts working together and what I was trying to do was to get the two courts to appoint a czar, and I wanted Joe Sullivan to be the czar. That meeting went through lunch with a couple of drinks and then a few more drinks and the meeting continued. Pretty soon, we were having cocktails before dinner, and then we were having dinner. I say the meeting went on from about noon until maybe 10:00 p.m. I can't tell you that we accomplished a great deal but we did make some progress. The Crash Program really continued, I'd say, for maybe a year or eighteen months anyway and significantly cleaned up the criminal cases remaining from the riots, and again, it became, the Crash Program became an institution. You know, where there was the Crash Program; we all knew about that, you know, and the legislature had to provide money for the Crash Program. Well, the Crash Program just became a fait accompli and an established part of our administration of justice for that period of time. Really the only thing that got it going was a certain amount of chutzpa.

Mr. Lane:
How do you spell chutzpa?

Justice Brennan:
I think it starts with a "ch". Anyway,...


Back to top

Mr. Lane:
Before you leave the subject, I think it's...I would like to hear your evaluation of the importance of that change in the grievance machinery and the fact that this has a continuing problem that today, or you know, in recent times and certainly in the future will continue to get attention for the serious problem that it is. I just thought it necessary to point this out.

Justice Brennan:
One of the problems...one of the phenomena that I observed all these years and these things...to be sort of common is the human tendency to address process as a means of resolving difficulties. When you have a Martin Lavan who filches money out of an estate, let's say for example, and it gets bad press and something has got to be done about it, there is on the one hand a human cry to draw and quarter Martin Lavan and oftentimes, the person who is in trouble does in fact get run out of town on a rail or whatever. But at the same time, there is this thrust to improve the process. "Let's create a more powerful grievance board. Let's put lay persons on the grievance board so that in the future, these things won't happen, so that the layman's point of view will be expressed. Let's, as we did, increase the bar dues from a nominal $35.00/year or whatever it was to a $100.00/year so we can afford to hire full-time professional grievance investigators and administrators, so that these things won't happen again in the future". Now, we did, and at the time, it was hailed or at least recognized as a responsible and reasonable thing to do. In my opinion, the Court after I left it, made a serious mistake by chopping the grievance board in two. They bifurcated the process and what they did was, somebody said, "Well, we can't have the grievance board prosecuting people and at the same time sitting in judgment on those people, so we've got to have an attorney grievance panel or grievance administrator who is sort of like the prosecuting attorney and over here, we have to have the attorney discipline board which will be like the judge and sit in judgment on whether or not the attorney ought to be disciplined". In my opinion, that was a mistake. In the first place, there are all kinds of administrative agencies that function in a quasi judicial fashion, and every prosecuting attorney has to decide whether he thinks somebody is guilty or innocent before he decides to issue a warrant, so in the sense of deciding guilt or innocence, everybody connected with it. The policeman who stops you on the street has to make a judgment about whether you're guilty or innocent before he proceeds with giving you a ticket, but that's not the determination of guilt of innocence that really counts. Eventually, some kind of judicial officer has to make that judgment, and in the case of lawyers, the decision is made by the courts as I said in my speech. It is courts who issue the license. It is the courts that take it away, that take it away, and the function of the grievance commission is to ferret out those lawyers that need to be disciplined and recommend the discipline to the Supreme Court. The Supreme Court may or may not buy what the commission is coming to them with, but the commission has done its job if it prosecutes the people. But somehow or other they got the idea in their head that the Supreme Court doesn't do this, "we've got to have this attorney discipline board which is disciplining the lawyers". I don't...in the long run, I don't think they can really do that. What they've done, however, is to make the process more complicated and more expensive than it needs to be, and perhaps it is now being dragged out longer. But to get back to this proposition process. We created the process. While I don't like the bifurcation of it, the Attorney Grievance Commission remains, if you look at just that half of it, substantially as we created it back in 1970. But it doesn't mean it is always going to work. I mean, the fact that you have a wonderful constitution for the United States and a wonderful set-up for government for Congress and the Senate and the President and so on doesn't mean you're always going to get good people or the people who are elected are chosen to serve us in those capacities are always going to discharge their duties responsibly. Bob Waldron and I are fond of saying to each other a phrase that we picked up somewhere along the line, "You got to get up early in the morning and fight for freedom, and you've got to fight for freedom all day long until you're tired and go to bed at night and then you got to get up in the morning the next day and fight for freedom all over again", and it's kind of an amusing thing, routine that we do, but the concept that eternal vigilance is the price of liberty is very real in ordinary, in the ordinary affairs of men, and eternal vigilance, watchfulness over the activities of the Court or the Attorney Grievance Commission or anything else is simply a necessary reality. I don't think...my point is that I don't think improving the process is always the answer. I think if you get a decent process in place, you'll get good people.


Back to top

Mr. Lane:
This is in accord with your, in a general way, with your response to my question about selecting a Chief Justice. At least the implication in that question that maybe there's a better way, you said process, the mechanics of it, well, if they work at all, depending on the people and the workings of our system, they'll be okay, in so far as it...

Justice Brennan:
I don't mean to suggest that the process can't be improved, and probably should, you know...should always be under review or reconsidered, can it be improved in one way, shape or form. I'll give you an example. I think passive restraints have some value. Certainly, the best way to control the flow of traffic down the avenue is to time the lights. Time the lights and people will all drive 35 miles/hour because who wants to rush up to the next light and put on the brakes? The people who are the total experts in passive restraint and moving people and so forth are the people down at Disney World. You go down to Disney World, and you don't wait in line. You're moving up and down these rows, roped off areas, and it doesn't feel like you're standing in line for a long time at all because you're always moving, and they're aware of that, and they can manage the herd by putting you into those things, and people are moved onto this ride, and moved off, and the speakers are announcing at all times, and "keep to the right", and this and that, and I'm sure that those...you get human behavior to follow certain patterns with good process, and I think the people who founded our country and wrote the Federalist papers had a real good sense of process and how best to maneuver people within certain structures. So I don't mean to suggest that process can't be improved and that it shouldn't be improved, but at the same time, there's this other concept that good people will make any system work and that bad people, regardless of how good the system is, will not do well.

Mr. Lane:
In part, you were saying, if I may paraphrase it, there's an excessive public naivety and faith invested in jittering with the mechanics of something. Once there's been a failure and it's recognized, and as you say, draw and quarter the guy, then they've got to do the fix-up and people have a naivete about the human capability of a fix-up to solve all problems forever.

Justice Brennan:
I agree. I think that's a good point, and I was trying to struggle with what you said better and faster. Where are we now? What are we talking about?

Mr. Lane:
Well, we were in the speech in 1969, the speech, and you mentioned the SADO, the Crash Program and I think you want to say in connection with that speech, the recommendation or whatever you said about statewide financing or reorganization of the courts on a state-wide basis. Didn't you want to bring that into it somewhere?

Justice Brennan:
That was the gist, as I say of the Krinock program and of course, and...

Mr. Lane:
Was that related only though, as I thought you explained it to the Detroit and Wayne County problem? Beyond that, did you not suggest to the legislature that it was time to consider appropriating for the financing of courts everywhere through the state process, or have I misread something?

Justice Brennan:
I will not say that statewide financing was my baby. In fact, it was talked about and I think we...some of the first steps toward statewide financing were taken during the time I was Chief Justice, but I have to believe that it was probably somebody else's idea. I was never really crazy about it although I can see where it has some value, and I certainly...I think politically it had value because if you wanted to influence the way things were being done in Wayne County or someplace else, the best way to do that was to come up with the money, and if you were talking about coming into Wayne County with a bunch of dollars to support their system, then you could have something to say about how that was going to be.

Mr. Lane:
I think I got my cue from Devine. Mike Devine said, "On May 1st, Law Day, in the inaugural State of the Judiciary Address before a joint session of the legislature, governor and robed judges throughout the state, Chief Justice Brennan proposed statewide financing of the Court system, including employment of all court employees by the unified court employer.

Justice Brennan:
Yes, that's...I don't think...maybe I'm wrong, but I don't think that my emphasis was so much on financing as it was on organization. What I...let me see...just hold on a second and let me take a look over here...

Mr. Lane:
I didn't want to get misplaced emphasis on something. I just thought that this was a subject area that you'd want to at least recognize as part of your speech on that occasion if it were true.


Topic 13: Justice Brennan reads portions of the speech given to the legislature in order to explain his court's proposal for statewide organization of the court system and the establishment of a Circuit Court in Detroit


Back to top

Justice Brennan:
Okay, I'll tell you. We're talking about judicial reform, and...I said, "Our task is to make those changes only which seem fitting and necessary to make the machinery of justice a more practical and useful tool in our times, bearing in mind that we have the high and undelegable obligation to pass along to our children not the best system we are capable of devising but the best system that men have been able to devise from the dawn of history to the day of our children's maturity", which is a way of saying we don't have an obligation to sit down with a blank piece of paper and do the best we can in terms of creating a system. Our obligation is to preserve what's come before us, the wisdom of mankind and add to it whatever we're...we fairly believe needs to be added to it..."In making the machinery of justice serve us better, we're interested in two things: its efficiency and the quality of its product, and these two areas, efficiency and quality, much has been done in recent years, and the people of Michigan have a right to be proud of these accomplishments. By mandate of the 1963 constitution, a single court system was created in this state. Justices of the Peace and Circuit Court commissioners were abolished. A four tier structure was launched...", and so on. I compliment the organization of the Court of Appeals and talk about how well they've done, talk about changes in the Circuit Court,..."A new generation of Circuit judges taking office...the creation of the new District Courts by the legislature", and I say in that regard, "In the creation of the new District Courts, this legislature was given a tough assignment. Not only was it necessary for you to harmonize the varied interests of diverse communities throughout the state, placate concerned local officials, protect the rights of court personnel and establish agreeable election districts, but you had to do all these things by a 2/3's vote of your own number. You are certainly to be congratulated for adopting Act 154 of 1968 in the face of so many obstacles. You have created and by its rules, the Supreme Court has implemented a statewide system of lower court justice which ought to be the envy of the nation. The people have given us good judges in the District Court. They are able and dedicated men and women", and so on.

Mr. Lane:
Okay.

Justice Brennan:
Just one moment here...the judicial tenure commission. Somewhere I talk about the abolishment of Recorders and/or Common Pleas Court, and particularly, the question, the racial question involved in that. Let's see what I said here...because I think it's...all right, here we're talking about financially ..."Not sixty days ago, the Supreme Court presented to a committee of this House of Representatives an expanded judicial budget and including among other things a request for the necessary funds to put in motion a temporary Crash Program to clean up civil and criminal dockets in Detroit and Wayne County. This Crash Program would represent the first large-scale use of another new constitutional tool in the administration of justice, the use of former judges on special assignment where no vacancy exists. Just last month, the court sent to you its recommendation for the consolidation of the Recorders Court of Detroit and the Circuit Court of Wayne County including an outline for a much needed District Court in Detroit", that would turn out to be the 36th District Court..."The goal of making a Wayne County Court system uniform with that of the rest of the state is one that has been long sought, long studied, long recommended and long awaited. The technique which this legislature devised in the District Court Act to protect pension rights, transferred judges, secured the constitutional designation of incumbency on the ballot and bring off an orderly transition of judicial business will be significant and useful in this undertaking".

Mr. Lane:
That actually occurred ten years later, right?

Justice Brennan:
Yes. I talked about establishing a criminal division within the Circuit Court that would take advantage of the expertise of those judges, and...as a matter of fact,... "The second half of the Supreme Court's recommendation for restructuring the courts in Detroit is equally urgent and significant. It contemplates the creation of a District Court in Detroit having two divisions, a Civil division with judges to be elected by the people of the city at large and a criminal division, the judges of which would be chosen by districts within the city". Now, here we were trying to do a couple things. One was to preserve the jobs of the Common Pleas Court judges who were elected at large in the city. At the same time, we were trying to provide a system where there would be more black judges elected because that was a sticking point in terms of the consolidation of the court and the creation of the District Court. There was the concern on the part of the black lawyers and the black community in Detroit that if they went city-wide, they would have most white judges.

Mr. Lane:
County-wide?

Justice Brennan:
City-wide.

Mr. Lane:
I beg your pardon.

Justice Brennan:
Remember, this is still back in the 1960's, and even at that point in time.

(End of side 1, tape 4)


Topic 14: Continuing to read from his 1969 Law Day speech, Justice Brennan talks about the election process for judges in the Detroit area in regards to concerns about racial equality and the establishment of a Criminal division of the Detroit District Court. He also describes the experience of giving a similar speech that elaborated on the issues with civil government to students at Michigan State University


Back to top

Mr. Lane:
City-wide.

Justice Brennan:
Yes, city-wide. We're talking about a period of time when Jerry Cavanagh was still mayor of Detroit and after Jerry, it was Ray Gribbs so a city-wide election still in those days generally resulted in a white person being elected. If you looked at the racial composition of the Common Pleas Court of Detroit at that point in time, I think it was still largely white. As a matter of fact, I suspect that their names are right in here.

Mr. Lane:
But as they say, the demographics of the city were changing rapidly and people understood that, and there was a lag of this in the electoral results and what was actually happening in the neighborhood.

Justice Brennan:
Well, that was true, and what we were trying to do, I suppose, was to get out in front of...

Mr. Lane:
Or at least keep up with...

Justice Brennan:
...the process by providing a method for judges to be elected where there would be likely some black representation. This is in the front of volume 382 of the Michigan Reports from May to December, 1969. Let's take a look at the composition of the Detroit Recorders Court which was then elected city-wide: Colombo (white), Crockett (black), Davenport (black), DeMascio (white). That's 2:2. Evans (black), Ford (black)...that's 4 black, 2 white. Gillis (white), Heading (black). That's 5 black, 3 white. Leonard, Maher and Olson, all white. That's 6 to 5. Poindexter and Shemansky, that makes it 8 to 5, so at that point in time, you had still a predominance of white judges on the Recorders Court and I'm going to guess that while they're not listed here in the front of the book that the judges of the Common Pleas Court probably represented about the same distribution. Traffic and Ordinance - Bill Haig who was black and John Kerwin, and Andy Wood were both white, so it was a 2/3's.

Mr. Lane:
That's a pretty good approximation.

Justice Brennan:
All right, now, so we were shooting at a system that would, in effect, guarantee the election of some black judges and as many proportionately as one would expect in the city of Detroit because among other things, what was happening and I think...I'm not sure just when...I think in those days, the judges were still being elected in off-year elections, or maybe the elections were then beginning to phase out, but in judicial elections whether off year or otherwise, there is always a great fall off on the ballot from the major political offices and judicial offices and local judicial offices and so forth. There has always been the tendency for the black voters to go in and pull the Democratic lever and leave whereas the voters in out in what was called the 22nd Ward and the 21st Ward, the far east and far west side of Detroit, to vote all the way down the ballot. In any case, so what I'm trying to say was that the whites were more...were more represented in elective office that their population would have called for in the community. All right, so we talked about a Civil division with judges being elected city-wide presumably where the whites had the advantage and a criminal division, the judges of which would be chosen by districts within the city which where the blacks would have had the advantage. I go on to say, "The purpose of the dual election method is simply this. The Civil division should embrace the present judges of the Common Pleas Court assuring them the continuation of their terms of office, and valid designation of incumbency in the same fashion as the judges of a Recorders Court who would be transferred to the Circuit Court. The Civil division should utilize the entire staff and experienced personnel of the Common Pleas Court and should continue its centralized operation for the convenience of litigants and jurors and for efficiency in maintaining its partial payment docket and other programs of service to the general public. The Criminal division of the Detroit District Court, however, would be staffed by no judges, and these ought not only to be elected by districts within the city but considering the nature of their work, these judges ought to be sitting and hearing their cases in various locations throughout the city". We were talking about kind of a local city hall or whatever type of thing that was coming in. "I can think of no single step which holds the promise of so much impact on the urban crisis as the creation of this kind of court. The function of the district judge in criminal matters is to adjudicate misdemeanor cases, both traffic and non-traffic, to issue warrants for the arrest of person suspected of crime, to set bond upon persons arrested on felony charges and to conduct examinations in felony cases, testing whether there be sufficient cause to hold the accused for trial. In no other court is there so much contact with the public. From no other court does the public derive so much of its opinions and attitudes about the law, the courts and the administration of justice. Upon no other court does the establishment of harmonious relationships between law enforcement officers and the community so vitally depend and no other court is more directly responsible for the carrying out of those firm and fair policies that discourage crimes in the streets of our cities. Is it any wonder that the Supreme Court has said to you that the judges of this court should be elected by districts carved out of the city? An unshakable faith in the intuitive wisdom of the good and free people tells us that there is no neighborhood community in Michigan which does not have the capacity to police itself."Think about that. "An unshakable faith in the intuitive wisdom of a good and free people tells us that there is no neighborhood community in Michigan which does not have the capacity to police itself."


Back to top

Think of that in terms of Cass Avenue. Think of it in terms of what we used to refer to in Detroit as "Black Bottom", and I really believe that. I mean, I believe that people are capable of governing themselves and policing themselves. They don't have to have white police officers from Livonia. They don't have to have judges from Grosse Pointe. If the rest of the world was blown up with an atom bomb and there was nothing left but that section of Detroit from Woodward to Livernois and from Five Mile to the river, they'd have to govern themselves, and they would somehow. I mean, they'd find...leaders would emerge, people would judge each other, people would put each other in jail, and it would happen. That's what I was trying to say here. I think if you're going to do anything about the urban crisis, it's got to come from within. You can't bring in the National Guard and make the people...to make the streets of the city of Detroit safe. The people who live in those streets have to make their own streets save, and the way you begin with it is to begin with civil, the organization of civil government which is the beginning...which is the local courthouse, and local officials. "There is no segment of our people so alienated from society that given a local judge on a community court, it will not keep its own house in order. For too long have the black people in our city been smeared by the wide brush of public reaction to the crimes of some black men without having in hand the tools with which to discipline their errant brothers. It is time we gave them the tools. It is time we give the people of Detroit, neighborhood by neighborhood and precinct by precinct, the judges and the courthouses to do the job which must be done if our children and our children's children are to enjoy the fruits of urban civilization".

Mr. Lane:
This is May, 1969?

Justice Brennan:
May, 1969.

Mr. Lane:
What was the response?

Justice Brennan:
Nothing.

Mr. Lane:
Did the newspapers ignore this?

Justice Brennan:
Yes. The newspapers...I thought it was pretty [expletive] perceptive stuff, and candidly, it was a prescription for something. I mean, I'd experienced the rioting in the streets of Detroit and so forth.

Mr. Lane:
You, in person, delivered this to the legislature?

Justice Brennan:
Oh, yes.

Mr. Lane:
Were the seats filled?

Justice Brennan:
Oh, sure. The place...

Mr. Lane:
...not for the judiciary speech anymore, you know.

Justice Brennan:
Oh, no. They were hanging from the rafters that day.

Mr. Lane:
They were?

Justice Brennan:
Oh, sure.

Mr. Lane:
I'll be [expletive]. So it wasn't that there was some kind of...everybody gone to sleep.

Justice Brennan:
No, but it's interesting, because I gave two speeches that day. I gave this speech which I labored over in Florida and another one which I also labored over, later in the day, and the second speech I gave out at Michigan State University. I can remember the State Police didn't want me to go. It was 1969 and it was...you know, anti-Vietnam War thing and so on, and I had to give this Law Day speech, and oh, man, they hustled me in the back door and they were terribly afraid I was going to get mauled.


Back to top

Mr. Lane:
Kellogg Center or someplace like that?

Justice Brennan:
I think it was Fairchild Theatre. The room was...and that morning, I had been before the legislature with all the robed judges, the cameras and whole ball of wax. Now in the afternoon, I am out there at Fairchild Center and the room is about 2/3's full of college students smoking cigarettes, beards, their feet up over the chairs, in the God awful costumes of the 1960's and in the unruly and surly manner that they had adopted in those days. I go in with this speech, you know, the Law Day speech, of all things to talk about...the rule of law to people, you know,...and so I went after it, and I spoke about the cry for justice and "Where do they look for justice? To the government. The government must prevent crime. The government must quiet the students. The government must becalm the ghetto, satisfy the teachers, meet the demands of the policemen, firemen and lower the taxes. The government must abolish racism. The government must eliminate poverty. The government must heal the sick, feed the hungry, clothe the naked, comfort the afflicted and rehabilitate the criminal. All around us, men look to the government to secure their happiness. Happiness without sacrifice, pleasure without pain, freedom without responsibility and why shouldn't the people expect the government to make them happy? Have not their ministers and priests and rabbis permitted them to believe that the millennium is upon us? Have not political candidates led them to believe that whenever government fails to secure their happiness, it is the fault of those rascals on the other side of the aisle? Our forefathers were wise enough to recognize that government...among men to protect life, liberty and the pursuit of happiness. It was left to our generation to pronounce in the constitution of one our sister states, California, that government is designed to achieve happiness for all men. Oh, my friends, a government which is expected to achieve happiness for its citizens is a government which is destined to fall. No government is eternal. None is all powerful. None is all wise. Governments are human institutions guided by trembling human hands, depending on imperfect human wisdom, speaking through halting human voices. When people collude themselves into believing the government can answer all their prayers, they make government their God and they become its preachers and its slaves." Who said that? De Tocqueville. "By wishing the government could be God-like does not make it so. Sooner or later the people will realize that it is a false idol, a golden calf, more human than divine, more fallible that infallible, more imperfect than perfect, and they become disenchanted. They become disillusioned and disaffected. So long as government can bestow its bounties upon them, they give it their support, but when its power wanes and its fortunes are reversed, its money cheapens. They recognize no further cause for loyalty, and they see that government as an alien power structure, an impersonal establishment, a yoke to be roughly cast off and thrown aside. On this Law Day of 1969, we are a free people in imminent peril of losing our freedom. For too long have our people flirted with the deification of civic government. For too long have we who are in public service flattered ourselves into thinking that if we studied long enough, if we consulted enough experts, read enough reports, held enough hearings and attended enough seminars, we could adopt perfect laws, dispense perfect justice and achieve a perfect social order in which all wants would be satisfied and all men would be happy. There is still time to see ourselves as we really are".


Back to top

Mr. Lane:
Did you get a hearing there?

Justice Brennan:
Jackie Teare thought this was a better speech than the one I gave for the legislature, and she said this one had some pizzazz and some heart and so whereas the one I gave to the legislature was dull, boring, so this was not John Teare but his wife, Jackie.

Mr. Lane:
Did anybody get up and give you the raspberries?

Justice Brennan:
Oh, yes. They interrupted my speech. They booed, they hissed, they yelled, and so on and so forth, at different times, mostly in the question and answer period, because my sense was when I was giving this, they kind of listened in a sullen sort of way, but at one point in time, somebody wanted to make a speech something like that and shout me down and whatever, and I said, "Look"..and I had the microphone so I could make more noise than any of them, you know, and I just said, "Look, I'm the Chief Justice of the Michigan Supreme Court. I worked my [expletive] off to get where I am, and I've got the microphone, and I'm entitled to speak because I'm here, and I am where I am. Someday you get to be the Chief Justice, you can have the microphone". Candidly, I went nose to nose with them, and I thought that that came off all right. I mean, it was one of those things that...

Mr. Lane:
This was a night time group?

Justice Brennan:
It was an afternoon thing. It was like about 4:00 p.m, 3:00 or 4:00 p.m.

Mr. Lane:
I don't know where I was during this period of time. I have no recollection...

Justice Brennan:
You missed some of the fun.

Mr. Lane:
Well, I did.

Justice Brennan:
You missed some of the fun. Anyway, I thought this was pretty good stuff. This was the best I was able to do, and I look back on it and I say to myself, "Well,...

Mr. Lane:
I think it's worn pretty well.

Justice Brennan:
Yes, it's worn well in terms of things that have come to pass since then. I re-read this Law Day speech that I was just reading to you a moment ago about the problems with civil government and its limitations, and I think to myself, "Hey, those words still have value" Obviously, de Tocqueville said much the same thing, and I think of it terms of our current economy. You know, the fact that we're looking at the recession of 1991. People say, "Well, what happens if we have another depression?" I read somewhere recently that somebody took a survey and said that over 50% of the American people are currently expecting a downturn in the economy on the magnitude of the Great Depression. Now, when you get that spinning in your head and think that people no longer expect prices to go up, no longer expect that you can buy a house for $50,000 or $100,000, it's going to be worth $150,000 and $200,000 and $250,000 down the line; no longer think that if I'm making $40,000 this year, I'm going to make $44,000 next year and $48,000 the year after, and I'm going to plan on this continued increase in personal revenue but are starting to think in terms of "I buy this house and it's going to worth less. I take this job, and I'm going to make the same or less in the future". If those are the expectations of people, you can imagine what's going to happen.

Mr. Lane:
Are...

Justice Brennan:
Well, let me just finish this point because I think it's important in terms of this speech. The difference between 1990 and 1930 is that in 1930, the government had not guaranteed the economy but in 1990, the government has guaranteed the economy. Think about that. The full faith and credit that our government stands behind FHA loans, guaranteed student loans, all kinds of...the FDIC, the SL whatever it is DIC, the Savings and Loan Deposit Insurance Corporation. They're saying in the newspapers today that the FDIC only has about enough money to last another year with the number of bank failures that are expected.

(break in tape)


Topic 15: He continues on to discuss government, economic stability, civil disorder, and the 1967 race riots in Detroit. He concludes by recounting the Senator Joseph Smeekens story from 1971, which concerned a fraudulent attempt to be admitted to the Bar


Back to top

Justice Brennan:
With...if the...you get to the point where if there is no money in the Federal Deposit Insurance, and there is no money in the FHA and all the rest of these things, what we're going to do if the government attempts to keep its full faith in credit is we're going to print money, and what was the line in here?...you expect government to do everything, to be able to do everything, and it really can't, but when it attempts to do so...where is my prediction, my dire predictions, okay? Yes, "So long as government can bestow its bounties, they give it their support. When its fortunes are reversed, when its money cheapens, they recognize no further cause for loyalty". Does anybody really think that the patriotism of the people of the United States of American, that their dedication to the constitution that was adopted in 1789 would last for five minutes if they got hungry? Does anyone doubt that the people of this country are as capable of rising up against the two hundred year old government that we celebrate and smashing it and putting in its place a dictatorship or whatever if times get tough enough? I mean, you go right...the average guy in this country is Mr. Pragmatist. I mean, they don't give a hoot about the process than the man in the moon. They pay lip service to the process as long as it doesn't interfere with their own pocketbook, but boy, they'll go right to the bottom line real fast, and the bottom line is, "Hey, I can't feed my kids". The bottom line is, "They're shooting at me from across the street", or "There's a [expletive] tank rumbling down in my subdivision". He couldn't care less about Thomas Jefferson or Alexander Hamilton or any of those dudes, you know. He's got a shot gun, I can guarantee you that, though...I really worry about...I really worry about civil disorder coming about in connection with the economy in this country with the government having overextended itself. You know, I remember the riots of 1943 as a kid in Detroit, and I remember the riots of 1967 when we could smell the smoke and hear the gunfire. It was only a block from our house, and we saw people driving up in their cars on Moorington Drive and opening the trunk and getting out and walking between the houses into the back of the stores that were being looted, coming out with television sets and putting them in their car and driving off. The same car would be back twenty minutes later for another trunk full. You know, people act like animals when civil society breaks down, and it breaks down when it loses its capacity to have credibility, and you know, I remember going down to Detroit when I was on the Supreme Court during that riot...

Mr. Lane:
You were just...

Justice Brennan:
After a couple days...I had just come on the Court. It was in 1967. That was my first year. We were living in northwest Detroit near Seven Mile and Livernois in a big old house with six bedrooms and five bathrooms and four fireplaces which I bought for $47,000, and I, with all this going on and the smoke just a block away and I had to go to Lansing to meetings of the Court, I didn't want to leave my family there alone. I finally decided to move them out of town, so we locked up the house and drove out. Some of the main streets were blocked. We found some side roads and eventually got on the highway and drove up to Lansing. I put them, put the family in a motel up...down near Cedar Street some place, Cedar and the freeway.


Back to top

Mr. Lane:
Did you leave anybody in the house?

Justice Brennan:
No, locked up and Polly said she was afraid as we left that we may never see the house again, you know. It was that much of a concern. I wasn't that concerned about it, but I would have felt a lot more comfortable having my family, and I had to go to Lansing anyway, so I thought I'd bring the family up there with me. So, I got them ensconced at the motel and the first thing I did was to turn around and go back to Detroit. I went downtown to the Recorders Court and Vincent J. Brennan was then the Recorder and judge of the city of Detroit, of the Recorders Court and I believe the presiding judge as well. You know Vince?

Mr. Lane:
Oh, yes.

Justice Brennan:
Massive, imposing man with this deep voice and a lot of common sense, later became a judge on the Michigan Court of Appeals. We're not related. I used to say Vince is the good-looking Brennan and I'm the smart one, and he would laugh, or I would say Vince takes care of the east side and I take care of the west side, but...and he was kind of late to get married. Karen and he were married when he was probably 35 or so, and for those years between, and I was married at 21, so I was married maybe 14 years before he was, and those years, every time we'd go out to a restaurant or a saloon in Detroit and run into Vince Brennan, the most popular and sought after bachelor in Detroit, the wives of us old married guys would swoon and say, "There's the catch of the year", you know, and I think her heart was broken when he got married. That...Vince was no longer around to chat with. But in any case, Vince, a great man of common sense, had set high bonds, surety bonds. The whole system of checking the people out and I.D.'s and everything else had broken down. They didn't know who they were rounding up. They were rounding up people that were giving them all kinds of names. They didn't know...they didn't have time to book them all and so basically they just decided that they were going to set high surety bonds on everybody and the only way you could get out of jail was to have enough substance that you could come up with a $10,000 bond or whatever the number was, right across the board.

Mr. Lane:
Did you go down there on impulse?

Justice Brennan:
I went down there because I was informed that Theodore Souris on our court was down there and was representing to Vince Brennan that the Supreme Court was very unhappy with his uniform high bond policy, that they wanted...that he was going to be expected and the Court was expected to be releasing people on personal recognizance, you know, to go back out on the street. Vince was saying, "I ain't going to do it". My message to Vince was, "This guy doesn't speak for the Supreme Court".

Mr. Lane:
Was he in fact there?

Justice Brennan:
Was Ted there?

Mr. Lane:
Yes.

Justice Brennan:
Oh, yes he was, and when I got down there and walked past all these guardsmen and so forth with guns and standing around and identified myself as the Justice of the Supreme Court, back through this check point and that check point and on into the court and up to the presiding judge's chambers, and the newspaper guys are around, and it was the bunker. I mean, it was where all the action was going on at that moment in time. I was ushered into the room and there was the Chief Judge Vince Brennan along with a couple of other of the senior judges of the court and my good friend, Theodore Souris from the Michigan Supreme Court sitting there, and the meeting was exactly as I had heard it was, and Vince was being lectured by Souris about how to handle the bond situation. Souris...I mean, he was not delegated by anybody, and we had not met to discuss it at the Court, and so I just barged in and said, "Vince, I want you to know that Ted here doesn't speak for the Court, and as far as I'm concerned as a resident of the city of Detroit, with the bite of smoke still ringing...still in my nostrils, I'm [expletive] glad you're setting high bonds. You keep it up".

Mr. Lane:
Would this have been like on the Monday or Tuesday after the rioting began?

Justice Brennan:
I couldn't tell you. I think it would be like Monday or Tuesday, yes, after the rioting began. We had taken a priest friend of ours to the airport when the rioting broke out. We knew nothing about it when we took him to the airport and when we returned, began to hear some reports on the radio and arrived back to our own neighborhood to see...

Mr. Lane:
Smoke.

Justice Brennan:
...smoke, and the windows were blown out of Jacobson's and these other places, and street lights smashed and glass in the street, people running around. So anyway, I had these experiences, and I worry about what can happen in our society if things go sour economically. But...that was the great Law Day, the two speeches.


Back to top

Mr. Lane:
Let me...you know, there are some things that are not going to get covered here, and we're going to have to make some arrangement...

Justice Brennan:
I'd be happy to come back with you and let's talk some more.

Mr. Lane:
I assume that you probably want to go out for lunch, right?

Justice Brennan:
Yes, would you like to go and have lunch with the two of us?

Mr. Lane:
That would be fine. The only thing is that I want to accommodate, and you've got maybe fifteen minutes here, and I want to fit it in. That's all I'm talking about, and it's a question of how to fit, and I'm wondering whether I should suggest a couple of hit and run topics.

Justice Brennan:
Why don't you do that now, spend fifteen more minutes, and then we'll go get a bite to eat and then if you don't mind, we'll adjourn for the rest of the day because I've got some things I need to do.

Mr. Lane:
Good, okay. Here's a real change of subject. What do you remember about John P. Smeekens?

Justice Brennan:
"Smeekens never weakens".

Mr. Lane:
That's a good start.

Justice Brennan:
Yes, the Smeeken story is this. Well, you know that Smeekens was a state representative or...

Mr. Lane:
Senator.

Justice Brennan:
...senator for many years.

Mr. Lane:
Aspired to be a chairman of the party.

Justice Brennan:
Whatever, I guess.

Mr. Lane:
And Larry Lindemer just beat back his...

Justice Brennan:
As I recall, he was Catholic, a conservative, father of a large family, and outspoken, noisy, and had been around a long, long time. He went to law school. As I recall, as a commuter, he went to the Detroit College of Law and graduated, and this whole episode began, as I recall, with a request that Brother Smeekens be allowed to take an oral Bar examination and in fact, as I remember, Stanley Beattie who was then chairman of the Board of Law Examiners, importuned me on behalf of Smeekens, and said that he had approached him and asked that this be done and so on, and Stanley in his wonderful way with his imitation Harvard accent said, "And Mr. Justice Brennan, if there is any way that you can do this consistent with your responsibilities, I should be delighted to establish the examination". So anyway, the issue came up. The background of it was this.

Mr. Lane:
We're talking about the first days or months of 1971, is that correct?

Justice Brennan:
I'm guessing it would be, yes, 1971. It was after I was Chief Justice.

Mr. Lane:
And Swainson and Williams had come on the Court?

Justice Brennan:
Yes, Swainson and Williams were on the Court, exactly. But the story was that Smeekens had taken and failed the Bar examination maybe twice or three times or some number of times before that, that he was a man getting on in years, that he was ill, that he had cancer and that he was expected to die very soon, and that the business of becoming, the goal of becoming a member of the Bar was a goal that he had long sought, that he had gotten his legal education with great personal sacrifice, commuting despite the burden of his duties in the legislature and the burdens of his large family and all these other things.


Back to top

Mr. Lane:
How did this word reach you, do you recall?

Justice Brennan:
It reached us with a letter or a petition of some kind or another from Smeekens or perhaps it was from the Board of Law Examiners requesting permission to give him this oral examination. And to do it out of season. I mean, not to do the examination on the next time the Bar examination is given, but to literally call him in and have an oral examination right then and there or very soon, as soon as the Court would give it the green light. The speeches were made around the table, particularly by the old-time politicians that you know, good old Joe Smeekens was a great old guy, and he was an adversary and we never agreed on anything, but he was always an honorable politician, and his word was his bond, and all the rest of that stuff that they say about politicians which is generally quite true.

Mr. Lane:
Who carried the ball?

Justice Brennan:
I can't tell you who carried the ball. I know that the sentiment was universal around the table, "Aw, we ought to do what we can for old Joe", okay? They were ready to just say yes to the petition that had been presented by the Board of Law Examiners, let them give him an oral examination and pass him. I said, "Wait a minute. I'm as much as the rest of you people anxious to do something for old Joe Smeekens. He is a good old boy, and he's going to die. Let's give him the honor that he wants" and so on and so forth, but I said, "Gentlemen, we don't have to have a bar examination to do that. This is the Supreme Court of the state. We are empowered to license people to practice law, and we don't have to have anything but our own, four votes out of at least seven guys is all it takes to become a lawyer. We could pick Joe Schlunk off the street, call him in here, give him a bath and say, 'You're a lawyer', so let us not...let's not demean our Bar examination system which is designed to discover who has achieved that level of academic accomplishment and knowledge of the law so that we can confer upon them the license to practice law. Let's not demean that process by saying 'Okay, we're going to do a verbal examination', because don't kid yourself. The verbal examination isn't a real examination. I mean, it's a deceit, a creation to give this guy an honorary law degree and if you do it for him, you're going to have to do it for everybody. You're going to have every guy that has got a disease or an excuse or whatever come in here asking for a verbal examination and how are you going to justify the fact that you're turn the next guy down when you did it for old Joe, and pretty soon, you've attacked the integrity of the whole process of examining people for the Bar. If you want to do this thing as a gesture to good old Joe, hey, you've got my vote, but let's do it flat out with no pretense that he's passed the Bar because he hasn't passed the Bar". "Okay, well, can we do that?" "Yes, we can do it". We all agreed we could do it. Gene Black was a great one to say, he always pronounced the 900 pound gorilla rule, in these words, he would say, "If we do it, who is there to gainsay us?", and that was the way he described it. So we passed the resolution and we simply admitted Joe Smeekens to the Bar, period. We ordered that he be sworn in as a lawyer, and we held a ceremony in the Supreme Court of the state, and Joe and his family came and he tottered down the center aisle of the courtroom looking as much as possible like a man about to be called to his maker, so that we all were adequately moved to express our approval of his accomplishments and welcome him as a brother at the bar. Well, of course, it wasn't very long after that we discovered that a miracle had occurred, and that Joe had miraculously gotten well and in fact, the letter from the doctor didn't really say he had cancer but just sort of said that maybe he might have, and that in fact, the wool had been pulled over our eyes, and when all that was discovered, the Court, as promptly and unceremoniously and as arbitrarily and capriciously as they had granted the permission to practice law, withdrew it by an administrative order, and Joe went back to being a non-lawyer after a short honorary time at the Bar. That's the Joe Smeekens story.


Back to top

Mr. Lane:
There was some recognition paid to appropriate process, though, in de-shingling him, was there not? You know, the record shows that it wasn't until 1977 that the Court finally completed the process of disbarring him.

Justice Brennan:
You mean they gave him due process before they took his license away?

Mr. Lane:
I would think so from what evidence I've been able to...I haven't examined into the thing, you know.

Justice Brennan:
Let's put it this way. I was not on the Supreme Court in 1977, but if I had been, the process of lifting it would have been as short as the process of granting it.

Mr. Lane:
396Mich719. Do you want to see it?

Justice Brennan:
396Mich719. Let me have a look. It would be interesting to see if there was a grievance procedure or what. 319Mich.

Mr. Lane:
No, no, did I say 319. I didn't say that right.

Justice Brennan:
Give me the number again.

Mr. Lane:
396Mich.

Justice Brennan:
396Mich, okay.

Mr. Lane:
396Mich719.

Justice Brennan:
396Mich719, because I mean this was a matter of a fraud in the inducement. This guy defrauded the Supreme Court of Michigan.

Mr. Lane:
And the people of the state.

Justice Brennan:
I mean, in granting him a license, so I would not have given him five minutes worth of due process. 719 - State Bar Grievance Administrator vs. Smeekens.

Mr. Lane:
What's the date on that?

Justice Brennan:
It is dated...decided June 3, 1976, rehearing denied.

Mr. Lane:
I'm sorry. I had the wrong date.

Justice Brennan:
"State Bar Grievance Board found Smeekens guilty of misconduct and revoked his license to practice law, and he appealed". You see, that's what happened. In the bifurcation of the Grievance process, the Grievance Board has been apparently granted power to revoke people's licenses, so it isn't done by the Supreme Court, it is done by the Board, and the Supreme Court only sits as an appellate body. This is actually an opinion in the Supreme Court.

Mr. Lane:
Not a very lengthy opinion and doesn't say very much, but there it is, and this was the instrumentality of...

Justice Brennan:
Kavanagh, Chief Justice, Levin, Coleman, Fitzgerald, Lindemer and Ryan.

Mr. Lane:
What does it say about Williams.

Justice Brennan:
Williams took no part in the decision.

Mr. Lane:
Okay.


Back to top

Justice Brennan:
Faithful to the end to his political honor.

Mr. Lane:
But actually, Smeekens was accorded ceremonial treatment in the courtroom of the Supreme Court.

Justice Brennan:
Oh, indeed he was.

Mr. Lane:
I didn't know.

Justice Brennan:
As a matter of fact, I wouldn't be surprised if it wasn't in the front of the books. I wouldn't be surprised.

Mr. Lane:
Back in early 1971. I have the date somewhere, but anyway, I didn't want to belabor that too much. That was something to...

Justice Brennan:
Interesting.

Mr. Lane:
Let's see if there's a short one here. What's your attitude generally...I put this down and then found I couldn't confirm that you had much activity in this, but advisory opinions...the Supreme Court had made a rule there...I know the constitution provides for them, and they got to be quite numerous in requests in the late 70's and early 80's, and the court was being asked to do all kinds of things and began to show some reluctance. What do you have to say about advisory opinions?

Justice Brennan:
I'm not really thrilled with advisory opinions, quite frankly. I'm kind of a traditionalist, and I think the case in controversy concept in the United States Supreme Court is a good one and should generally be followed. I had to write an advisory opinion early on in my days on the Court, and I struggled with it. It's very difficult because the advisory opinion has to focus on something. What are the issues? If you're being asked about the constitutionality of a piece of legislation, you can only consider those allegations of unconstitutionality that occur to you, or occur to somebody...

Mr. Lane:
Frank Kelley..

Justice Brennan:
But there being nobody there saying that it is unconstitutional for this reason and this reason and this reason, it is very difficult for you to conclude that it is constitutional in any sort of meaningful way because you can only say if this question is raised, we will come down this way and if that question is raised, we will come down this way, but we haven't answered any other questions because it never occurred to us to do so. I think that that's a problem. I'm not really thrilled with them, and I think the idea of trying to use the Supreme Court as the office of the Attorney General is not a good idea.

Mr. Lane:
Is there anything worth saying about the quasi-rude ejection of the Supreme Court from the Capitol?

Justice Brennan:
We could do an hour on the $0.50 parking episode.

Mr. Lane:
Well, that's part of it.

Justice Brennan:
But it was part of...

(End of side 2, tape 4)

© 2017 Michigan State University Board of Trustees. MSU is an affirmative-action, equal-opportunity employer.

Privacy Statement