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

Interview with Thomas E. Brennan (part 2)


Sponsored by Michigan Supreme Court Historical Society
Conducted by Roger F. Lane
January 29-February 14, 1991


Contents

Topic 1: Justice Brennan discusses the impact of the Boykin vs. Alabama U.S. Supreme Court case on Michigan court cases

Topic 2: He then gives a description of a court case that led to the reconstitution of the Oakland County Circuit Court and the case of Governor vs. State Treasurer in 1972, regarding the financing of education

Topic 3: Reconstructing lost footage because of a mechanical malfunction, Justice Brennan talks about judicial activism and the prospective vs. retroactive changing of Common Law in relation to a court case concerning immunity for negligence committed by eleemonsynary (or charitable) hospitals

Topic 4: Mr. Brennan and Mr. Lane discuss if Catholicism is an issue in performing his public duties and the role of conscience in government

Topic 5: Justice Brennan discusses making decisions by law or by conscience in a judicial context, the UAW's role as an active litigant in court cases, and adopting opinions from lower court decisions

Topic 6: Mr. Brennan and Mr. Lane discuss the case of Dorothy Riley, a Michigan Supreme Court Justice, and his attempts to prevent her removal from the court

Topic 7: Justice Brennan continues his discussion of Dorothy Riley's case and his thoughts on its origin and motivations, including a discussion on the selection process for Chief Justice

Topic 8: Justice Brennan talks about how the process and starting Cooley Law School in Lansing came about

Topic 9: Justice Brennan continues recounting the creation of Cooley Law School and issues raised by others concerning a possible conflict of interest with his occupation and his later decision to leave the court to run the law school. He then discusses its aim for practical scholarship, how it compared to other top law schools at the time, and issues with diversity

Topic 10: Justice Brennan talks about case regarding the apportionment of the legislature in the 1970s, having his portrait presented to the Supreme Court in 1980, and his activities since leaving the court in 1973


Topic 1: Justice Brennan discusses the impact of the Boykin vs. Alabama U.S. Supreme Court case on Michigan court cases


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Mr. Lane:
This is tape 5 in the series with Justice Thomas E. Brennan for the Michigan Supreme Court Historical Society. Today is January 29, 1991, and we're going to start out, Justice Brennan, I hope talking about the Boykin problem that arose on the Court during your period of service there in about 1972 or 1972, when it came to a head, and I refer, of course, to Boykin vs. Alabama, 1969 United States Supreme Court case. The gist of it was that if a judge is going to take a plea of guilty in a felony type case, there has to be demonstrated on the record the fact that his rights were safeguarded in certain respects. It had to be shown that there was counsel, that he knew he was entitled to a jury trial and that sort of thing. Now, in 1972, the Court began to have some growing problems about this and you were for sometime sort of a voice crying in the wilderness, saying, "Hey, Court, we're going down the wrong road here", and what the Court was doing was extending the Boykin doctrine quite wide to the point where a lot of persons who serving long periods of time in Jackson on guilty pleas suddenly began to sense that they could get another trial even if they'd been convicted 20 years ago. Do you remember...what do you remember about this?

Justice Brennan:
Well, I remember that the Boykin case in general, held as you state, that in order to take a guilty plea, the Court was required to ask certain questions of the defendant. You've just handed me People vs. Jaworski, and my dissent.

Mr. Lane:
You waxed a little eloquent.


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Justice Brennan:
Well, the thing about it is I am 20 years away from this stuff. I pick up things I wrote and I say to myself, "Did I write that?" This particular opinion, I remember only vaguely but I apparently had divided Boykin, what I called "Boykinism", into three categories, and the first was "Pure Boykinism" which holds that the record of a guilty plea to pass constitutional muster, must contain a statement of advise by the judge to the defendant that he has three constitution rights: trial by jury, the right to confront his accusers, the right not to be a witness against himself and then secondly, a statement by the defendant, separate and apart from his guilty plea by which the defendant expressly waives each of these rights on the record. Then I talked about "Orthodox Boykinism" which called the guilty plea itself the waiver, but insists on a judicial statement of advise, and then finally, I refer to a thing which I called "Ecumenical Boykinism", which does not require the judge to play the role of the defense attorney, merely requires a recitation of the constitutional rights, either on the record or on a piece of paper duly signed in the defendant's own hand. This particular controversy troubled me substantially because the Court was getting into a kind of formalism that almost marked the Courts of Common Law centuries ago where they were departing from substance. I mean, it may be a confusing concept, but procedural substance, that is, the substantive reason for the procedural rights that we afford defendants of criminal cases. When a person pleads guilty, they voluntarily place themselves within the jurisdiction of the court and the power of the court to send them to prison or deal with them as a person who is convicted of a crime, and it is obvious that we don't want people pleading guilty who aren't guilty or whose decision to plead guilty has been affected by fraud or duress or anything other than a free and voluntary choice on their part. But of course, all human beings who had their faculties, are made with the faculty of free will, and they all have the capacity to make free choices. Some people make much more intelligent, informed, careful, prudent choices than other people, and in most instances, the people who are defendants in criminal cases are not among that category. In those cases, the people who are accused of crime and who are pleading guilty in criminal cases are people whose intellect is not among the top, who are certainly free individuals and sui generis in the sense that they are responsible for their own actions, but in the eyes of an educated jurist, they may have an extremely simplistic view of life and simplistic view of their own dilemma as they stand before the court, but I'm not prepared to say that that simplistic understanding of their predicament isn't adequate for a human being to make a free and voluntary judgment, so what I'm saying is you could stand there all day long and lecture some of these defendants about the constitution and their rights, but communication is a two way street. It is not just what is said, it is what is understood, what is received. A sender and a receiver, and anybody who has taught in a school or a college or addressed a jury has to know that what you say isn't always understood by the people you're talking to in the same sense in which you say it. Now, I think a lot of this Boykin controversy was an attempt on the part of some of our judges to have this kind of perfect understanding of the defendant's predicament from which he would have this full and totally informed capacity to make a judgment and his judgment about being guilty or not guilty was made in that context. In my opinion, it was an attempt to achieve some perfection of human nature that doesn't exist. The constitution provided that people are entitled to counsel, in the VI amendment, I guess it is, and these people all had lawyers. Well, what is the function of the lawyer? The function of the lawyer is to advise the client. That's what he is paid for. That's what he is educated to do, and presumably, he advises these clients in the language that they can understand. He dialogues with the client in the jail and if the man speaks in broken English or if he speaks in ethnic patois, maybe the lawyer dialogues with him in street talk, in the same way that he understands things, but it is the responsibility of the lawyer and the thing he is trained to do to make sure that he conveys the information to his client about what his rights are and what his choices are. It used to be in the old days that the lawyer stood before the judge and said, "Your Honor, I have advised the defendant of his constitutional rights. He fully understands them and he wishes to enter a plea of guilty". That statement was given weight. It was regarded as a significant statement on the record proving, in fact, that the defendant was advised of his constitutional rights. Well, Boykin said "We don't trust the lawyer and we're not going to accept the lawyer's representation that he has informed the defendant of his constitutional rights. We're going to inform him of his constitutional rights from the bench and put the process of informing him on the record". Well, the process of informing him on the record is a formal juristic statement of rights, maybe completely accurate within the constitution. I assume it assuredly completely accurate within the meaning of the constitution, but always done with the pomp and sterility of judicial discourse, and done in open court in front of a crowd of people, on the big day when a man is in court before the judge, and his heart is pounding in his throat, and the idea that he is going to understand what he is being told or that that is a circumstance in which you were going to be able to give him information and have him exercise intelligent choice on the basis of it is ludicrous, absolutely ludicrous. But we went through this whole charade, and we're still going through the whole charade. We do it for whatever reason. In my opinion, what we were doing then, and none of the judges would admit it, none of the justices on our Court would admit it, and the justices of the United States Supreme Court wouldn't admit it, but what we were doing, as far as I'm concerned, was we were trying to find a way to get involved in sentencing, in sentence review. When a person was sent to Jackson prison for 20 years on his guilty plea, and he had been up there for 15 - 18 years, the only way he could get out was to attack his conviction and since he pled guilty, how were you going to attack the conviction. The only way you'd get anybody to resentence him or to review it is time in prison, and there was a feeling on the part of many of our judges that some of the sentences were too severe. They had no track to get to that other than to order re- trials and guilty pleas. In my personal opinion, that's what they were doing.


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Mr. Lane:
You know, it's fair to assume that you were explaining your attitude to your fellow justices on the Supreme Court somewhat in this manner.

Justice Brennan:
In this manner and in stronger words.

Mr. Lane:
All right, now Jaworski you were just reading from. That's 387. Now, in 389, what happens on one day here? Do you remember this particular day?

Justice Brennan:
There was a whole raft of guilty plea reversals, and it was done as part of the administrative work of the Court. They were not all formal appeals, so it appears in the back of the book, just among the miscellaneous matters attended to, and I made a point in my dissenting from the decision of the Court to say that I dissented from this of second guilty plea reversal, the third, the fourth, the fifth, and in fact, there were seven on one day.

Mr. Lane:
These were all Boykin cases?

Justice Brennan:
They were all Boykin-style cases, and I was making the argument that the Supreme Court of the state was swinging wide the doors of the prison.

Mr. Lane:
Now, that was on January 29th. On February 28th, something had happened by then, and is it not true that Justice Levin who had just come on the Court, through some chemistry that maybe you can explain, was given the job at some point of saying, "Hey, this is...we're going diametrically in the opposite direction of where we should be going and we're going to do...", what you just said..."that we're going to turn all the prisoners in Jackson or most of them, out of jail and give them new trials". Do you remember how it happened that once these two new members came on the Court...you'll notice that on January 29th, Justice Coleman had just come on and she joined you in a couple of these. Prior to that, I take it you dissented by yourself without bringing any of the other members of the Court along.

Justice Brennan:
During 1971...

Mr. Lane:
1972.

Justice Brennan:
...and 1972, I was definitely a voice crying in the wilderness. In 1973, I guess Mary had come on.

Mr. Lane:
In January, that's the first month she was on the Court...in the second month, two new members were on. Levin is assigned a job apparently from what I was able to determine, inquiring as a reporter, there were these orders issued on February 28th that said to those who were affected by the January 29th new trial orders that, "Hey, wait a minute. Don't do anything. Those orders we issued four weeks ago...we don't want you to act because we're going to do something else". Then on the 28th, four weeks later, they were all quashed. "Quashed" was the word.

Justice Brennan:
In those seven dissents that I made? You mean they turned them around? I'd forgotten...

Mr. Lane:
On February 28th, four weeks later...

Justice Brennan:
All seven of them were turned around?

Mr. Lane:
Well, four of them in one batch. Now, I don't think probably any of them survived as orders for new trials, but I wondered if you recalled what was going on inside the Court at this time? You had been shouting from the steeple rooftop or whatever, saying, "Hey, stop, stop stop. This is all wrong", and then, having done that for quite a long time, several months or a couple years, suddenly your colleagues seemed to hear you or accept your argument where they had ignored it before and they reversed field, just like football players.

Justice Brennan:
I would say that my good friend, Roger Lane, who was at that time a distinguished reporter for the Detroit Free Press, probably hit the nail on the head when he wrote in this article, "A highly qualified neutral observer...

Mr. Lane:
I think it was Ron Dzierbicki.


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Justice Brennan:
I don't know. You could have been the neutral observer yourself...

Mr. Lane:
No, no.

Justice Brennan:
"...saw political rivalry as figuring importantly in the Court democratic majorities studied, disregard of Brennan's protests. They tend to turn off on Brennan. He opposed the rule of law that the majority expressed in the leading cases in this area and they probably felt that 'he was just against us from the beginning and simply ignored him', the observer said". My recollection of the matter is very skinny. I can't tell you exactly why the Court turned around, but I would be fairly confident in saying to you that I would not party to it, that whatever persuaded the majority to back off, it wasn't the fact that I dissented. That would have been a reason for them not to back off because if they backed off after I had dissented and then said, as I did, and you quoted it in the story, that "the Court has this day fallen out of its tree". I mean, I criticized them. For them to back off after my criticism would appear to make my criticism justified, and give me an "I told you so", and they didn't want to do that, so I would say that if they backed off, it would have been not because of my objections but in spite of them and because they probably were pushed by public story, newspaper stories.

Mr. Lane:
You know, my knowledge of this, I think, started with Jim Ramsey. You remember Jim? He was a former Assistant Attorney General, and then he retired and he went over to the Ingham County Prosecutor's Office and started handling appeals, and one day, he said, "My God, what's going on over there?", and then he started telling me about this. He had discovered, and he transmitted to the Court...he was the attorney, he was the prosecutor in one of these cases, represented the prosecutor, Mauch, and he said, "If you people go down this road that you're going down ever more rapidly, you're going to turn 1,000 or 1,200 people out of Jackson and the other prisons. My authority for that is the Director of Corrections who has run a count of this". Now do you suppose that is what sort of awakened or, you know, caused...

Justice Brennan:
It could be. I think the Court was certainly sensitive to bad press. It's always been sensitive to bad press, and either bad press or the prospect of bad press, more than anything I would say, in a conference, would change their minds.

Mr. Lane:
But the...some of us...I was a layman at that time. I now could claim to be a lawyer, but the idea that by sitting around in a room in the capital and four or five people get a certain notion and start to put their signature on orders can have an effect almost boggles the mind, if this is a proper representation of what actually was being done, and I think the ordinary layman wonders, "My goodness, what is going on in the minds of these eminent jurists as they go about this sort of a process?"

Justice Brennan:
And I think again, your statement is so true, your quotation from whoever it was you were quoting, that "the Supreme Court, being far removed just are insensitive to the guilty plea situation and trial court procedures generally. They just don't see these things. Their lofty isolation takes away perspective. They're up on Mount Olympus and when they look down, all the people look like ants". That's a very interesting and I thing cogent observation.

Mr. Lane:
I think I'm quoting Ron Dzierbicki, who was an extremely well qualified person to make a judgment in this.

Justice Brennan:
Whoever it was.

Mr. Lane:
And he was to one side, he was clerk at the Court of Appeals at that time.

Justice Brennan:
Whoever it was knew what they were talking about, because that is quite true, and you had people who were able to debate the niceties of legal procedure in a vacuum with almost no realization or ability to project into real life how that would work, how that would be once you put it into effect, and...

Mr. Lane:
Is this an argument, then, for trial lawyer and trial judge experience as a qualification to sit on the Supreme Court, or doesn't it...?

Justice Brennan:
Well, I certainly think trial work as a lawyer or a judge is helpful.

Mr. Lane:
Okay.


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Justice Brennan:
It's also helpful to have people who have just lived a little in terms of had some experience out there. I don't know. It's endemic to the human condition, I guess. People get the God complex when they go on these courts.

Mr. Lane:
Well, I didn't want to beat this to death. Maybe we've gone on too long on this thing. I wanted, on another possibly related subject, to ask you about something that was said during the portrait presentation ceremony and this was done in 1980 after you'd left the Court, and your former assistant, Mike Devine came over and talked as one of those who took part in the ceremony, and he referred to a time when there was a problem down in Oakland County that had to do with a grand jury. Do you remember that? He said that you decided, you were then Chief Justice, to reconstitute the Court. What the heck...do you remember what that was about?

Justice Brennan:
Yes, not a lot of the details, but Mike talks about it in this speech, and as I recall, it was a hot potato grand jury. The Attorney General was asking for a grand jury in Oakland County, and I forget who was being investigated or why exactly, as I recall. I seemed to me that it involved a man by the name of Lazaros.

Mr. Lane:
Yes.

Justice Brennan:
And he was a...

Mr. Lane:
Slippery guy.

Justice Brennan:
...very slippery character with a very shady background who was capable of lying about anything, and one of the things he did every time he would get in trouble with the law was he would start telling stories about judges, and people in high places, and how he knew this one was corrupt and that one was on the take and whatever else, and he'd make the most bizarre allegations but for some reason or other, he had the ear of some people in the State Police, and they tended to believe him, at least to the point of wanting to investigate and in fact, there was a request for a grand jury in Oakland County. I think in that case, Lazaros had probably pointed the finger at some people in Oakland County. Curiously enough, something makes me think that one of the people whose name was mentioned at that time was Jerry Bronson, but I'm not sure. It could very well have been that his name was...

Mr. Lane:
He had come through Oakland County. He had been prosecutor.

Justice Brennan:
Prosecutor out there, and whether or not it was something he did or was alleged to have done when he was prosecutor or a judge, I can't remember. I don't think Jerry was a Circuit judge. I think he went right from being prosecutor to being on the Court of Appeals, but anyway, for whatever reason, the Oakland Circuit judges, one after another, began disqualifying themselves from hearing this petition, and I got the message as Chief Justice that there wasn't anybody in Oakland County that would accept this grand jury. There wasn't any one of them who would be the grand juror, and I became very concerned that the justice system was going to break down in Oakland County, and we, the Courts, were going to get a very bad black eye for simply not acting on the Attorney General's petition. Since it was local stuff that was being alleged and so forth, I felt that maybe some outsiders would be better off handling it, so I conceived of the idea of completely reconstituting the Court which meant taking all of the Oakland County circuit judges and assigning them for one day into other counties...Lapeer, Wayne County, Washtenaw, Monroe...just sending them off to do a day's work someplace else, and bringing in a whole bench of outsiders who would then pass on, make judgement on the petition for the grand jury and appoint a grand juror being one of themselves, because, as I recall, the statutes said that the bench was to appoint one of their own members to be the grand juror and since nobody in Oakland County wanted to do it, we had to have a new Oakland County Circuit Court. That's just what we did. That bench...I forget who all was on it, but there were a lot of judges from Detroit, as I recall, and one of them was Judge Bob Colombo, and he was appointed the grand juror. I guess the newspapers, as Mike Devine recalls, were making a lot of noise about this and demanding this grand jury be empaneled.

Mr. Lane:
This Lazaros, he had a great appeal for the newspaper and some of the reporters, I guess.

Justice Brennan:
Well, because it was very scurrilous, what he would be claiming. It was almost tabloid stuff, but that was an interesting little episode.


Topic 2: He then gives a description of a court case that led to the reconstitution of the Oakland County Circuit Court and the case of Governor vs. State Treasurer in 1972, regarding the financing of education


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Mr. Lane:
Here's another thing that I wanted to bring to your attention. This is the case of Governor vs. State Treasurer. Why don't you describe a little about what this represents? That was 1972. Do you remember this case?

Justice Brennan:
Yes. Let me just take a moment...

Mr. Lane:
My guess is that it is pretty well summarized in what is labeled "Addendum" which is a couple pages that preceded what you filed as an opinion.

Justice Brennan:
Yes, I'm just kind of reviewing this, because I remembered it but some of the details I didn't recall. This was a very unhappy thing. First of all, I didn't think the lawsuit was really an adversarial proceedings. It was, in my opinion, a "sweetheart law suit". Milliken vs. Green. Milliken was the governor. Green was the State Treasurer appointed by Milliken. They weren't mad at each other. They weren't fighting with each other over anything, but it was a vehicle whereby the governor could place before the Court the question of the constitutionality under Federal constitutional standards of the Michigan constitutional scheme for the financing of education. By the luck of the draw, I was assigned to write the opinion in the case.

Mr. Lane:
Excuse me, before you go on, do you have...did you have then or do you have now a pretty good notion of the behind-the-scenes origin of why Milliken was moved to do this? Who...did somebody have a bayonet in his back or did he do this for philosophical reasons? This is ordinarily something...

Justice Brennan:
No, this...of course, the whole process of state financing of education and the financing of education in the state of Michigan and elsewhere had been a reasonably hot political potato for a long time. There was a case out in California, I believe, called Serrano in which the California Supreme Court declared that the California educational financing system was unconstitutional under the Federal constitution and so they threw it out and mandated that the legislature enact a different method of financing the schools. That successful effort in the courts, I suppose, emboldened our governor to try here. He had certainly tried for a long time to get the legislature to adopt various changes in the way in which schools were financed, and the School Financing Formula, that is, the formula by which the states would pay money to the school districts, it tinkered with every term, every term of the legislature. It's always designed to try to get the local bodies to tax themselves to a maximum, to reward them for taxing themselves, to equalize the effect of their taxation on education since in some so-called poor districts, people might pay a high tax and yet generate very little money for the schools because there isn't that much property in the area, so the whole idea of the state formula was always to try to equalize and make up for these variances. I think Milliken started the lawsuit because he was frustrated. He couldn't accomplish things in the legislature and he thought a quicker, easier, more effective way would be to go to the courts, emboldened, as I say, by a success in California and other places. Remember, this was 1972 and it was a time of judicial ascendancy and extreme judicial activism, both at the federal and state level.

Mr. Lane:
There are some people, by the way, who may not remember at this late date, that when Milliken became governor in 1968, he did it with the flourish to become the education governor. Do you remember that? He created a commission that met up in Leland and all that sort of thing?

Justice Brennan:

Mr. Lane:
There still may have been some aura, now long hardened, that...

Justice Brennan:
I think you're quite right. I think that he...Bill Milliken was interested in education and he made an effort to try to identify himself and his administration with it. In any case, here we had this lawsuit which at least in form, was a controversy between the governor and the state treasurer, in effect saying to the state treasurer...I don't know what...wanted the Court to say to him, "Thou shalt not pay out money under the current statutes because everything is unconstitutional". The case was assigned to me, and I proceeded to write an opinion which I circulated among the members of the Court in July of that year. I received the assignment on June 6th, the case was argued on June 6th. My opinion was circulated about a month later, six weeks later, July 27th. I held in my opinion that the constitutional method of financing schools in Michigan was not unconstitutional under the federal law, that the Michigan constitution established a method for financing public schools which was essentially through a system of school districts, each one being autonomous in some respects and responsible, largely responsible for its own financing and given the power to tax, real property taxes. In December of that year, after nearly five months after I had written my opinion, Justice G. Mennen Williams circulated what he called a discussion draft which was in effect, a opposed opinion holding that the Michigan method of financing the public schools was unconstitutional under the federal constitution. We didn't have a meeting of the Court scheduled between then and the end of the year. Justice Paul Adams was going off of the Court. Mary Coleman was coming on. That had all been decided in the election and so on. There was almost no internal procedure with respect to the Williams opinion.


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Mr. Lane:
Discussion draft.

Justice Brennan:
We never had a meeting to discuss it. It was called a discussion draft, but we never had a meeting to discuss it, and then all of a sudden on December 26th, the Chief Justice informed me and other members of the Court that there were four people on the Court ready to decide, to sign the Williams opinion. So it was signed, and it was issued.

Mr. Lane:
Do you remember the date, probably the 29th or 30th?

Justice Brennan:
It was right at the end of the year. I can't recall exactly the date on which it went down, but it would be in the books. I was stuck with this formal so-called majority opinion that I had written that didn't address the Williams opinion at all, didn't dissent from it. It simply presented an entirely different point of view. I filed that as my dissenting opinion, mostly because I had done the work and I thought whatever scholarship was involved there should be given the light of day and let the profession use it or not use it, as they chose, but then I wrote and added to my opinion a so-called addendum in which I attempted to address the Williams opinion as best I could on very short notice. I ended up pointing out that in my opinion, the majority opinion was not good law. It was not even law. It was a position paper, a political position paper, really, and I felt the whole issue was political to begin with. Obviously, it is still before us, 20 years later, debating about how to finance public education.

Mr. Lane:
Do you remember what the sequel was to the filing of that opinion on December 30th?

Justice Brennan:
Yes, the sequel was that after the new year, January, 1973 when Mary Coleman came on the Court, there then was a quick shift, and I believe at the behest of Justice Levin who made the motion, the Court sua sponte, reconsidered the opinion in the case of Milliken vs. Green and reversed its opinion, in effect...

Mr. Lane:
That happened in January, what you just recited, but it's interesting...if you go through the reports, I believe you find this -that in August or September or somewhere later in the year, there is...without any title or headnotes or anything, there is a one paragraph thing that is in the form of a order of the Supreme Court. What that said, as I recall, was that such and such things, having happened, including the opinion of the United States Supreme Court in a Texas case, Rodriguez, that we now expunge...it think that word was used...from our records the opinion filed in December. If it didn't use the word "expunge", it was something equivalent to that, that we said it naught vacate, and attached to that little order, as I recall, was something that bore Levin's signature that was quite a broad and thorough analysis from his viewpoint, somewhat along the lines of yours, that this was kind of an opinion in a vacuum that didn't do anything and didn't decide anything. It said what the legislature had ordained one and a half years before was out of order, but that now there is a new year, and a new school aid law and that if...it invited the Court or invited anybody to come back to the Court...Do you recall that part of it?

Justice Brennan:
In just sort of general terms, but you see, that whole process...I don't know...I think the Court is still doing it because people are still on the Court who believe that it's the proper function of the Court do to these things and I think the principle, one of them, is Justice Charles Levin. I think Justice Levin sees the Court as a kind of body with a constitutional mandate to make decisions, make decisions about anything, about government, about life, about people, about the way we live and the way we are, the way we finance things, the way we pay for things, whatever. I don't think he has the same sense of a limited role of decision maker between litigants that I have. I mean, I think a judge in a Court decide cases, cases and controversies, and that they decide them in accordance with some traditional limitation of what kinds of decisions that they can make. I think Justice Levin is probably what I might call of the Solomonic view, that is, you can be inventive. You can make things up when people come before you and if a case is presented that sort of highlights a problem in society, you can directly address the problem in society, and in effect, issue orders to the world which you hand...pin on the door of the courthouse and make everybody come and see.

Mr. Lane:
Do not the rules or does not the constitution limit the Court, circumscribe what it can do?

Justice Brennan:
Oh, yes, but can you conceive of a judge saying to people, "Bring us a case. We invite you to bring a case to our Court". Why? Why in the world would a court ever say to the world "We invite you to bring us a case?". I mean, the reason they say that...what we want is an excuse to make some law here. We have an idea about how the world should be and how things should be run but unfortunately, we have...

(End of side 1, tape 5)


Topic 3: Reconstructing lost footage because of a mechanical malfunction, Justice Brennan talks about judicial activism and the prospective vs. retroactive changing of Common Law in relation to a court case concerning immunity for negligence committed by eleemonsynary (or charitable) hospitals


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Mr. Lane:
Here we are again.

Justice Brennan:
All right, now Roger, I understand we are reconstructing side B because we had a little mechanical failure, and we'll do the best we can with the help of your notes and what we've been able to glean from the side B that was lost. This is tape #5, right?

Mr. Lane:
Right, #5B.

Justice Brennan:
You said that at the end of #5A, we were talking about...had we gotten into Governor vs. Green?

Mr. Lane:
Yes, we had pretty well finished with that, and as I recall, right at the end, you were saying is what this adds up to is that the Court was begging litigants to come on in and bring us a case so we can make some more law.

Justice Brennan:
Okay, good. Well, and I think that that sort of led me into a discussion about the judicial activism, about prospectivity of decisions.

Mr. Lane:
Exactly, and I think I mentioned Shavers, although Shavers actually was decided finally, somewhat, some years after you left the Court in 1978, but you had already got a taste of it, I think, in the advisory opinion, and if you remember, in Shavers, the court said, "Well, this thing is not quite right, but we'll let it sit there for one and a half years. The legislature will fix it up and then we'll apply the constitution on it".


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Justice Brennan:
The case that I remember, and I wish I could bring to mind all the facts - one of the cases by name, I believe was Meyers. I don't think the Meyers case was the one I participated in. I think that was the one that had occurred before I came on the Court, but there was a series of cases having to do, if I'm not mistaken, with the principle of the liability of eleemosynary institutions for their torts of negligence. The old common law rule having been that eleemosynary institutions were immune for liability for negligent actions. Apparently the thought was that it was a way to encourage the good nuns and other groups of people to establish in hospitals and other facilities for the poor, and you didn't want to visit on them civil liability for having failed to do their good works in a completely non-negligent fashion. It would be similar, I suppose, to legislation that we have enacted recently, the so- called Good Samaritan laws, the policy being that you want to encourage people to be the good samaritan, to assist someone they find to be in trouble without worrying about being sued. So that was the old common law rationale for the immunity of eleemosynary institutions in end of late 50's and 60's here in the state of Michigan, that if you came up in connection with hospital liability and malpractice and so forth. There were some decisions by our Court which, as I recall, established the rule...changed the common law rule and established the rule that these institution were, in fact, liable for their negligent torts. Again, I'm doing this from memory. It seems to me that this was the principle of law involved. One of the debates among the judges was if you're going to change the common law by a Court decision, should you do it prospectively or retroactively? There was always the argument that a great many people relied on the law as it then existed, that insurance contracts were written based on the law as it had previously existed, and that there was a certain amount of equity or fairness on the side of those who relied on old court decisions and so forth for making their business judgments. You really had about...you really had three different ways in which the courts talked about changing the common law. One was simply to decide the case in favor of the plaintiff and say, "We're changing the common law. You can now sue a hospital", and because the old law doesn't apply because times have changed or because the old law was a mistake in the first place or whatever, but "we're going to do that", and simply not say about what cases it applies to at all, which would basically mean that anyone who had a claim against the hospital that wasn't barred by the statute of limitations, that is, anyone who had a claim against the hospital that was no more than two to three years old could come in and start their lawsuit and the courts, if they followed that precedent, would listen to them. The argument there would be, for the defendant, would be, "Hey, we bought an insurance policy based on the old law, and we didn't cover our negligence because we weren't liable in the old days. Now you're going to make us pay for these torts of malpractice out of our own pockets because we're not insured. Had we known you were going to do this to us, we would have insured ourselves". In the face of that argument, the courts did two other things. One was to say, "All right, we will decide this case before us, this case of Jones or Smith or whoever it was that was the lead actor, the ground breaker who brought the case and who made the argument for overturning the common law rule and making a new common law rule, and in his case, we would let the plaintiff win, but we would say to the world that we're not going to do this except for other cases that occur or the case itself, the injury itself occurs after today's date", so all those cases that would be in the pipeline of three years, the last three years, those people are out of luck but anybody who has the good fortune or misfortune of being the victim of malpractice from today forward will have a lawsuit. That was another approach that they took. Of course, the logical problem with that was that the plaintiff in this case did not have a claim that arose after this date, so the plaintiff in this case, his claim is two to three years old. In effect, you are holding in favor of the plaintiff on a case that is two or three years old in one case and then saying to the world that everybody else who was injured the same day this guy was isn't going to be able to collect. By definition, you're creating an unfair and inequitably and discriminatory application of the common law rule. Well, among the arguments that some may have made about that was, "Well, that's true. It is discriminatory. You're treating this man different than everybody else who was injured the same day in the same place or whatever, but it is a reward we're extending to this particular plaintiff for having taken the trouble to come all the way to the Supreme Court and he is sort of...the prize he gets is that he gets to win his case whereas everybody else injured the day he was injured cannot win". I always thought that was a ludicrous argument and it had nothing to do with the justice of the cause, you know, to say that somehow you're going to reward this person for having overturned the law. So with that logical difficulty, there were a group of people who took a different view and they said, "Yes, that's true. It would be unfair to reward this particular plaintiff, and let's be logical. Let's say this: From this day forward, everybody who is injured by the malpractice of hospital has a claim, but this plaintiff doesn't have a claim and anybody whose claim arose before this date doesn't have a claim, so we're going to hold in favor of the defendant hospital in this case. We're going to deny this plaintiff's claim, but we're going to announce that from today forward, the rule will be different". That was the so-called true prospectivity type of a decision. Now, think about that. Here's a court of seven elected justices deciding this case in favor of the defendant. You ask "What was their decision?". Their decision was that the eleemosynary institution is immune from liability as it has always been under the common law. That's the rule of law which they applied to the facts in this case, and that's how they arrived at their decision, but now, having done so and having carried out what they're paid to do as judges and having done it in the great tradition of the common law by using precedent, they now say as an addendum or whatever, "But the next time a case like this comes in, if the injury occurred after today, we'll make a different decision". Think about that. I mean, they are telling the world what they're going to do in the future in a different case, that is, if dicta means anything, that's dicta, okay? They might as well right a Law Review article.


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Justice Brennan:
They might as well go to a banquet someplace and all seven of them stand up and say, "Next time we get a case like this, we're going to make this decision". It's improper for them to announce their decision in classes of cases that aren't before the Court. If a judge got out and made that statement on the stump when he was running for election, the Bar Association would be all over him for being unethical. He has no business announcing to the public what kinds of decisions he is going to make in what classes of cases in the future. I mean, that's pandering for votes based on how you're going to decide your cases, and yet the Court does it and has done it many times in the books where they do this so-called true prospectivity. It's an absolute abomination. It is an absolute perversion of the judicial process, okay, and it was in that context that I said...oh, George Edwards wrote such an opinion, a true prospective opinion in which he said...he began the opinion, "From this day forward" were his words, okay? It was a pronunciation, it was an edict. It wasn't a damned decision. It was an edict that attempted to change the law prospectively. Now, after the Edwards edict, and whether that was the Meyers case or what, but on this subject, along came another case, some other plaintiff, through ingenuity or perseverance or whatever, worked his way up to the Supreme Court, and his injury had occurred prior to the day that Brother Edwards had announced was the effective date of this new rule, and what did the Court do? They decided the case in accordance with the new rule, so despite George Edwards' announcement that as of today, the rule is going to be different for all future cases, in due course of time, when a case came up that was, had begun prior to that date, the Court decided in favor of the plaintiff, in effect ignoring Edwards' prospectivity pronouncement. Now, I cited that to show that when Edwards announced that the rule was being changed today from this day forward, that it was sheer nonsense or poppycock, and that was the basis. I called it that in my opinion. I said, "This is sheer poppycock. The Court cannot announce future decisions. They can't bind future Courts, and so it is sheer poppycock". Hiram Bond who was for many years the reporter of the Michigan Supreme Court decisions, the person responsible for the editorial clean- up work and the management of the printing and publishing of the opinions, was a wonderful kindly old and scholarly old gentleman with the Court for many, many years before I came, and Hiram was a stickler on grammar, pronunciation and so forth. After you wrote your opinion and circulated it to the other justices your draft, a copy would go to Hiram and he would read it and you'd get a memorandum from Hiram about corrections that he was suggesting you make, always very polite, always very deferential but always very firm that it was improper for you to do this or whatever. He recommended highly that you don't use this phrase or that, whatever. In this case, Hiram's memorandum said that, challenged the use of the word "poppycock", and I think, as a matter of fact, he phoned me. I don't think it was in a memorandum. He phoned me because I remember him telling me that the way in which words were used in Supreme Court opinions was one of the sources that lexographers go to get the information for dictionaries and are able to say "This word has found acceptance in the language" and so on and so forth. If it is being used in Supreme Court opinions, that is very good evidence that it is accepted in the language. He said, "You don't want to use this word because the word 'poppycock' means soft dung". He sort of suggested it was crass and perhaps inappropriate word for a Supreme Court opinion. I said, "Hiram, that's exactly what I meant to say" and I left it in. If poppycock or soft dung becomes in the next edition of Webster's dictionary as a common usage to indicate, to mean nonsense or foolishness, maybe I had some contribution to that cause. Anyway, where were we? Does that cover that whole thing?

Mr. Lane:
Well, but remember, you had some other observations to make about this kind of...I remember the City of Detroit vs. Jaxon. Is that...?

Justice Brennan:
I don't know how we strayed from the poppycock story into Jaxon. Possibly it had to do with...there was a stream of consciousness in our discussions on the tape previously. It may have been that we were talking about opinions and words that you use in opinions and that might have brought me to talk about the City of Detroit vs. Jaxon because the City of Detroit vs. Jaxon is an opinion which I can even give you citation for because I happen to have pulled it down off the shelf. It appears in 379Mich405, and I'm glad I got it down because my recollection of the case was not accurate, and having refreshed my recollection, I can give a better statement of what the case was, but I had referred to Detroit vs. Jaxon on a number of occasions because it was my one excursion during my service on the Supreme Court into the area of judicial humor, and my one attempt to be funny which I'll tell you what the result of it was.

Mr. Lane:
This was the case about the woman that stepped off the streetcar?

Justice Brennan:
It's the lady that stepped off the bus. The bus driver stopped, and instead of stopping where she could step onto the curb, she stepped down into the street so instead of having perhaps 10 or 12" to step off of the last step of the bus to the ground, she had to go about 16 - 18" down to the street level. I tell the story of her fall very matter of factly in my opinion until I reach the bottom of page 409 and I said, "She apparently expected to step onto the curb but alas, there was no curb underfoot and the plaintiff went a'tumbling". Then I say, "Mrs. Jackson fell victim to Fetridge's Law". There's a footnote there, and then...I don't know if you want me to read this footnote onto the tape, but the footnote refers to Claud Fetridge, an employee of NBC who conceived the idea of broadcasting the whir and flutter of the eager wings of the swallows departing the mission of San Juan Capistrano in Southern California on October 23rd which is St. Johns Day, and that was traditionally supposed to be the case except that when they got all set up with their equipment to record it and broadcast it, they discovered that the birds had left the day before, so Fetridge's Law came to be known in the circle of humorists where they had these so-called laws of probability to be stated as follows: The principle of Fetridge's Law - "That important things which are supposed to happen do not happen, especially when people are looking", all of which can be found in a book by H. Allan Smith called "A Short History of Fingers".

(interruption in taping)

Justice Brennan:
I won't belabor it. Elsewhere in that opinion, I made reference to Gumperson's Law which is generally stated that "the contradictory of a welcomed probability will assert itself whenever such an eventuality is likely to be most frustrating". Anyway, I played around with these two humorous rules of probability, and fortunately or unfortunately, I managed to get a majority of the Court to agree with the result of my decision, at least, though not the words of my opinion, except that I got a lesson taught to me by Justice O'Hara who dissented in these words: He said, "I am uninstructed in Fetridge's Law and Gumperson's Law. Insofar as negligence law is concerned, I accept the statement of the Court of Appeals..." and he goes on from there, so the embarrassment of having attempted to be humorous stuck with me for a long time, and I have occasionally used that to admonish young judges not to try to be funny in their opinions. That was that reference to H. Allen Smith.


Topic 4: Mr. Brennan and Mr. Lane discuss if Catholicism is an issue in performing his public duties and the role of conscience in government


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Mr. Lane:
I think I had asked you...

Justice Brennan:
Was that on this side?

Mr. Lane:
Yes. I had asked you, and we're switching subjects now...about whether you found any problems in connection with your Roman Catholic faith in discharging your public duties, and I had averted to the issue that was raised in 1960 against Jack Kennedy when he was running for President, and the gist of it seemed to be people who opposed him because of his Catholicism and said, in effect, "Well, if he gets in a jam, he'll call the Pope and the Pope will tell him what to do, and this isn't the way the country ought to be run". You have confronted in your service issues like abortion or obscenity, parochiad things that have a great interest for the church, whose faith you profess. What do you have to say about this? Does this ever inhibit you or cause you...do you think it affected your service?

Justice Brennan:
Well, I think among non-Catholics, there is a perception that the Catholic church is a very authoritarian organization and that somehow or another, persons who, Christians who profess allegiance to the Roman Catholic tradition are subservient to ecclesiastical authority in all things, and I think to a degree, we probably bring that on ourselves, oftentimes by talking about what it was like to go to parochial school and be reared by nuns and priests who rapped your knuckles and kept you after school and did a lot of things of that kind. I think at some point in these tapes, I talked at some length about the priests at Catholic Central High School and Father Sheedy knocking Gus Sonnenberg out and things like that, and I think that among non-Catholics, there is a sense that Catholics are...they march to the beat of the papal drum and in fact, that the Pope or ecclesiastical authority speaking for the church could, in fact call up a Catholic politician, judge and tell him how to decide his cases. I think that the action of the Cardinal out in California recently who...what's the word for...kicking somebody out of the church...

Mr. Lane:
Excommunicated?

Justice Brennan:
Excommunicated or threatened to excommunicate a state legislator who was vocally pro- abortion and deny her the sacraments of the church or him or whoever it was, that that is taken by non-Catholic Americans to be an interference with that politician's ability to represent his or her constituents. My sense of it is that I am a Catholic, not because I have Catholic blood in me or that I am a subject of ecclesiastical authority in the sense that I may be a subject of the government of the United States or as someone is the subject of the king of England. I am a Catholic because I believe in the teaching of the Catholic church, and when I go to mass on Sunday, I recite the Nicene Creed as part of the statement of my beliefs, and I really believe those things, so if I decide a case or if I act consistent with the teaching of the Church in some area, it is not because the Church tells me I have to do that. It is because I believe that I have to do that. That's my conscience telling me. You get into a kind of semantic problem of the difference between being instructed in one way or the other and being informed. It is my view that not only Catholics but all rationale human beings have a responsibility to have an informed conscience. We are not...we have in our make-up, the Lord gave us the responsibility to act in accordance for the right reason, to do what is right as opposed to what is wrong in all of our actions. This is fundamental tort law, you know. Act as a reasonably prudent person would under the same or similar circumstances. We all have that built into our rationality, but part of that rationality says you can't blind yourself to information and then pretend that you're exercising rationale judgment. If I have a shot gun or a 30/30 and I'm out in the woods, and I hear some movement back there among the trees, I can't just fire my gun assuming or hoping that it might be a deer that is in there. I have some responsibility to take a look and see if that is another hunter, and my conscience can only be guided, can only guide me if I am faithful to my responsibility to inform my conscience about the facts and about the principle. So the same thing is true with respect to a Catholic's relationship to his church. We have, as individuals, responsibility to inform our consciences. The church is in the business of teaching about right and wrong, and it is a resource, a source that a person of good conscience, has an obligation to explore, just as you have the obligation to read books, to consult, whatever, and there are many Catholics, I'm sure, whose consciences tell them something different that what the Church teaches, but they've read Thomas Acquinas, and they read Augustine, and they've read other philosophers and theologians and so forth, and they've come to some sort of a conclusion that they're happy with, that they believe is correct and true, and they don't think that they're out of the teaching, the mainstream teaching of the church, so they go about their way and they do what they do. What's important is that they have instructed, informed their conscience about these things. For most of us, day to day Christians, we haven't got the time to go to the library and dig out theological books. We basically have to have a ready source of counsel and information, so you know, you read some literature, maybe the weekly Catholic magazine or newspaper, and you listen to the sermons on Sunday, and you inform your conscience. That's not the same thing as taking orders. It's not the same thing as taking orders. An adult, mature Christian has that responsibility and it wouldn't make any difference whether you are Catholic or what you are. You have a responsibility to inform your conscience and make up your mind about what is right and wrong. I think that is something that may not be well understood by non-Catholics.


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Mr. Lane:
In an adjudicative context, this can also be distinguished from the policy-making role of an executive, can it...or much more confined public duty, so to speak?

Justice Brennan:
Yes, and I think an executive role, it may not be very far from such things as the duty of a military officer, for example, to carry out the orders of your superior. I think you have less running room to substitute your personal judgment for the judgment of your superiors in the executive department than you do in the judicial department. A kind of folksy analogy that I frequently use about the three branches of government, executive, legislative and judicial - I have often compared with three aspects of human personality, that the executive is like the physical aspect...human nature...man is a rationale animal. He shares with the animal kingdom his animal aspects, but his rationality exists because he has a soul, and the soul is really two things, free intellect and free will, so the nature of human life is physical, intellectual and free will, those three concepts and I compare those three to executive, legislative and judicial. The executive is like the physical life, it's your hands, your feet, the way you carry out things, the way you do things, the way you interact with the outside world. The judiciary is parallel to the intellectual function of human life. It is the function of judgment, of thinking, of deciding, of judging, not necessarily deciding, and then finally, the free will is parallel to the legislative function in government. We often hear the phrase that "the Congress will work its will". It's a different thing from making its judgment or making a decision about something based on intellectual principles or right reason. A legislator can always vote his conscience. I mean, if he wants to hang onto his job politically, he probably votes the conscience of his constituents or what his constituents generally want, but when a legislator votes aye or nay on a bill or resolution in the House or the Senate, that person has absolutely no constraints. He is not constrained by the constitution. He is not constrained by his church or by anything or anybody. He literally does what he wants to do, whatever he wants to do. It's the Latin, voluntas. It's free will that he exercises, and it's a matter of choice, and frequently, that's exactly what the legislator has to deal with. He has the better of two evils to select from. "Do you want green or do you want blue?" It doesn't make any different. They're just two colors. Which do you prefer, so very frequently that's what the legislator does, and that's the concept. If you think of this parallel and you think in terms of a human being working for the government or being involved in the process of government, either executive, legislative or judicial, you can see that the role, the conflict between personal preference or personal conscience may be quite different whether you're in executive, legislative or judicial department of government. In the executive department, there is the least tension between...there should be the least tension....no, the least or the most...maybe I want to say it this way: The executive department tolerates the greatest tension between personal conscience and duty in the sense that if you're the hangman and you're paid to be the hangman, you've taken the job, then you hang everybody that they bring you, you know. If your duty as a public officer is to sign this check, then you sign this check, irrespective of what the money is being spent for. It is not your decision. Your job as the treasurer is to sign the check, make sure the accounts are proper, make sure the accounting is made to the public authority, whatever that may be. Thinking in terms of the Registrar of Deeds. He must record every document that is brought to him. He doesn't make any judgment of what is in those documents or whether it is good for society or whether it is what God wants him to do. He just does what he is paid to do, so the preference to do the public duty over private conscience is enormous in the executive department. As I say, in the legislative department, it is almost non- existent. You pretty much do whatever you feel like doing when you're voting as a legislator. But in the judicial department, there is the greatest need or desire, or logic to meld the two, to meld your public duty and your private conscience because basically, the public duty and the private conscience both flow from the same thing. They flow from reason, from human reason and Thomas Acquinas said "the law is a rule of reason ordained by proper authority and promulgated for the common good", and if you are following that law by that definition, you're following your reason, and if you're following your reason, you're following your conscience, so there's a great melding of the two in the judicial department, and what is important and necessary for an Appellate judge is that he express his views on the law rationally and logically and in a way that relates to public policy, never says, "I got to vote this way because I'm a Catholic. My Church tells me that this is what I must believe". That may be good enough for him to inform his conscience in his private affairs. You know, "I do not speak ill of my neighbors because my pastor tells me that's a sin. I don't personally see anything wrong with bad mouthing a few of my neighbors. They deserve it, but because the pastor says I shouldn't do it, I won't do it". You can't have that kind of logic as a judge. You can't bring your church or your religious discipline in in that way. You must say, "We should not speak ill of our neighbors because it is not good for society and..." and whatever law or whatever you're dealing with if that's the principle involved in it, you have to have a reason for it which is unrelated to religious discipline. Anyway, I guess I've talked enough on that subject.


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Mr. Lane:
As sort of a back light, as I would phrase it or describe it, to this whole discussion of principles that we've been talking about, you raised the question, sort of antidotally about what happens at the end of a dinner where you have a bunch of people sitting around disposed to chew the fat a little bit and what is the proposition that you put before them?

Justice Brennan:
Oh, yes. I don't know whether that goes onto to this next tape. If it does, maybe we started it here, so I'll...we'll continue. The issue that I like to pose around the dinner table after supper with good people who are intellectually astute and articulate and so on is to put this proposition out: "Resolve that no persons should be elected President of the United States unless that person is capable of committing murder". When you state the proposition in that fashion, there is a certain shock- wave that goes through the group, but then the discussion starts to get lively. The first general reaction is that we don't want a murderer as a president. That would be terrible. Then you begin to put certain specific hypothetical situations before them, and they begin to back off and start to have doubts as to whether their first reaction was correct. For example, if I were to say..."If George Bush were a murderer, would you want him to continue as President?" They say, "No. We'd want him out of there. We don't want a murderer in there as President". "Suppose he doesn't commit the murder himself but orders somebody to be murdered?" "Well, I don't want that either. That's the same as murder. You're talking about a mafia don who orders people killed". "Well, suppose he ordered Saddam Hussein killed?" "Oh, that's good. That would be wonderful if he did that. That would get this war over with and there would be less loss of life and ...", etc., etc. Then people realize that the question of whether they want their president to be a murderer or not really depends on who it is he is going to murder which sort of reminds me of the rule of law that John Dethmers, God rest his soul, gave me one time with respect to murder cases. He said the first rule in every murder case is "should the deceased have went". That's the first question in every murder case - should the deceased have went, and when you stop and think about it, that probably is the single consistent strain through most murder trials. But in any case, that whole idea of whether a President of the United States, whether the people of this country want a President of the United States who will violate the law in their behalf is a very interesting concept. After all, public opinion is outside of the constitution. Public opinion is not controlled by the constitution. The constitution says that every person is presumed innocent until proven guilty. Public opinion doesn't have to presume them innocent, and rarely does. The constitution says that every person is entitled to freedom of speech, but the public opinion is that some people shouldn't be allowed to talk at all because what they say is unpopular and undesirable, so while the constitution may say that people cannot have their property taken away from them without just compensation, the public opinion might be that the president could seize the steel mill and not give those rich steel mill owners anything at all if it was in...was for the benefit of the common good.

Mr. Lane:
Some kind of a war time emergency or that sort of thing.

Justice Brennan:
As far as the public is concerned, they wouldn't even need an emergency. I mean, all they really need is some sense that it is to their benefit to have this thing done, and they're happy to do...

(End of side 2, tape 5)


Topic 5: Justice Brennan discusses making decisions by law or by conscience in a judicial context, the UAW's role as an active litigant in court cases, and adopting opinions from lower court decisions


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Mr. Lane:
Here, now we're on again, Justice Brennan.

Justice Brennan:
Anyway, let me just conclude the thought which was do we want a President of the United States who is capable of killing, committing murder, and it's interesting to find that many, many people that that is what they want. When you get right down to discussing it, they don't want a president who is too squeamish to commit crimes in the service of the nation. Every president has to deal with the question of when his or her conscience says "no" and what do you do when either your official public duty or what the people expect or desire of you are in conflict, and frankly, I think Kennedy's reaction was very correct and so would anybody. Any president worthy of being elected to that office should say "When my conscience offends against my so-called public duty, I am going to follow my conscience, and I'm going to either do what my conscience says, and if I can't do it and be consistent with my public duty, I will resign from public office".

Mr. Lane:
Well, in an adjudicative context, though, are you...is it the same thing or in an adjudicative context, you have a controversy before you and it's come up in the right way and it has to be decided. It goes against your conscience if it is decided one way. Do you then decide it on the law or on conscience? Am I saying it right?

Justice Brennan:
I think...you raise an interesting question. Had I been on the Court after Wade vs. Roe...I may have had a case like this. I don't recall. Had I been on the Court and confronted with literally a Roe vs. Wade situation, where somebody was making the exact same argument about the Michigan statute as Mrs. Roe had made about the Texas statute that led to the U.S. Supreme Court decision, now the case is before me or us on the Supreme Court, and I am one out of seven people to vote on this issue. What is my public duty and what is my conscience duty with respect to the thing? My first reaction is my conscience duty has no bearing at all on the thing because if I can't...if I don't have an argument on the basis of public policy and my role, my proper role as a judge to make, then I can't decide. I can't say...I can't vote to overturn this statute because my church...because I belong to a church that is against abortion, so I am going to recuse myself from sitting on the case. I can't do that, and I don't have to do that because I could say very easily, regardless of what my church says, I'm sworn to do my duty, and this is the law of the land, and I am sworn to uphold it, so I'm going to uphold it and be done with it. But there's a third thing that a person can do and in my judgment, should do. I would, anyway, and that is this: the decision of the Supreme Court of the United States in the Texas case, while it is precedential, while it is guiding in the sense that it is something we should pay some attention to, it does not bind the Supreme Court of Michigan in another case. It's not res judicata, stare decisis, yes, but not res judicata, and stare decisis, the difference between those two things is very important as you well know. They haven't decided the Michigan case yet. The Michigan statute may be different or the Court may want to review its decision in Roe vs. Wade for one reason or another, so I'm sitting there and I'm saying I'm going to decide this case according to what I think the law is under the circumstances, and I have as much right to interpret the Federal constitution as the federal judges do. I was sworn to interpret the constitution of the United States as well as the constitution of the State of Michigan, so I could very well write an opinion saying I think the Michigan statute written in 1946 is valid, and say, "There you are gentlemen. There's my decision, and if you want to take it to the United States Supreme and if they want to reverse me just like they reversed the Texas judge, let them do it". I think that is not an invalid thing for a judge to do. I think it may be somewhat controversial in the sense that a lot of people would say, "Well, you've got an obligation to follow the United States Supreme Court". I don't think it's a legal obligation. I think it's kind of a traditional obligation.

Mr. Lane:
A judicial officer sitting on an Appellate Court in a state is in a different position than, say, from an executive officer who is given the order of marshall or somebody to do this thing, and the guy either does it or not, and he is sworn to do what marshall tells him or...?

Justice Brennan:
Yes, I think that's a good distinction.


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Mr. Lane:
Let's get onto...do you remember...were you sitting on the Court when the four year registration case came up for decision, UAW Community Action Council...

Justice Brennan:
I don't remember it.

Mr. Lane:
Well, that was the four year registration, 387...that would have been your time, wouldn't it?

Justice Brennan:
Yes.

Mr. Lane:
Well, if you don't remember it, why should we go into it?

Justice Brennan:
Well, maybe if you've got a question about it, you can raise it.

Mr. Lane:
Well, this was again, I thought, the sort of block voting that seemed to be evident, let's say in the Governor vs. the State Treasurer.

Justice Brennan:
Yes, the four year registration case...using the Secretary of State as the registrar as well as the driver's licenses?

Mr. Lane:
Well, that's right. He administers the election laws and so the form of the case, the style of the case was UAW Community Action Counsel and NAACP and various other people against the...whoever was...Austin or whoever, Secretary of State.

Justice Brennan:
1972?

Justice Brennan:
Right, and said it is contrary to...it is an unconstitutional burden on the right to vote to require people to renew their registration every two years even though, and there are various provisions in the statute...now does that bring to mind?

Justice Brennan:
And they concluded that certain people had voting patterns, and they voted in the presidential election every four years, and that that was a valid voting pattern, and therefore, you had to keep people on the rolls. I would guess that I dissented from that.

Mr. Lane:
You sure did.

Justice Brennan:
Just as I dissented in the case that Swainson wrote in which they concluded that all the kids at Michigan State University had to vote in East Lansing and all the university kids had to vote in the towns where they were going to school which was, in my opinion, those were just pure political decisions where the Court was using its power to enhance the political position of their fellows.


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Mr. Lane:
Okay, well, then you would agree...Black just tore his hair out on this one, and he, in the most emotionally charged passionate terms told his colleagues on the Court that they were paying political debts rather than performing a proper function as a justice of the Michigan Supreme Court, and he recalled who has been owed his nomination and who would, the next time around, owe his nomination to the people who were trying to get the election laws...

Justice Brennan:
Well, the UAW's role as a litigant, and of course, you had Gus Scholle's case back years ago on the question of apportionment and so on, but the UAW...I mean, was an active litigant, and they were an active litigant in the sense that litigation was deemed to be a means of affecting public policy, so to the same extent that the UAW was active as a lobbyist, it then became active as a litigant whenever someone concluded that the courts could be importuned to achieve what they couldn't get in the legislature. One of the things that began happening after Soapy Williams and John Swainson came on the Court that I had never seen before and which I found troubling was the manner in which the UAW communicated with the Court. For a long time, as long as I could remember, the pleadings filed by litigants would go to the clerk, and the clerk would make copies and distribute them and when they were distributed, they would go to each Justice, and each Justice's secretary knew what to do with them. Typically, she would turn them over to the law clerk for some processing and eventually, they'd get on the judge's desk. The UAW took to sending copies of the pleadings directly to the Justices. They would file their statutorily or court-ruled required eight or ten or twelve copies with the clerk as they were required to do but in addition to that, they sent copies directly to all the Justices through the mail, and your mail was processed differently than the inter-office distribution of opinions. Your mail, today's mail got in today's mailbox, so if the UAW was the litigant, you got...you read their pleadings a week or two before you otherwise would have. I had my reasons to suspect why that was happening. I can only say that they were the only litigant that did it.

Mr. Lane:
I was talking to former Chief Justice Coleman not so long ago, and she said she was astonished one day in conference when she hadn't been there very long, and somebody knocked on the door and it was a message for one of the members of the Court sitting there urging the support of a piece of legislation that was apparently at some jeopardy over at the legislature. She took some umbrage that this was a way of communicating. I hadn't heard of that, by the way, for people who may be listening to or reading this in the future, the conference room on the Court is sort of a quasi-sacred place, and the Court usually met there without the presence of anybody else, and if there was somebody else there, it was a clerk or somebody that was invited expressly for some, had some connection with what the Court was arguing and considering at that moment. Well, so much for that. This was...the reason I thought you might recall this was that Gene Black reacted in a way that...you know, he could get his histrionics up pretty fast, and in this case, it was the most strident, ferocious kind of discussion that I ever saw come from him and wind up in the reports. So much for that, though. One little thing to maybe...I wanted to ask you about and could be disposed of, perhaps, very quickly - there was a case in 387 that you drew to write the opinion in something like somebody's plumbing and heating vs. Cadillac Sands which is a hotel up in Cadillac, and it was a two-bit sort of a contract case. I don't really remember why it wound up on the Supreme Court. You wrote...this is a contract case come to us through such and so...this case was decided in such and such a manner by the Wexford County Court and here is what Judge Peterson had to say about this - "this is an excellent discussion of the case. I adopt this as my opinion for Michigan Supreme Court in reviewing it" and then I think everybody else signed it, too. Do you remember that? Was there any particular reason why you...?

Justice Brennan:
I don't specifically, but I do remember having done something very similar to it in another case, but I couldn't tell you what case it was. I vaguely recall that. Bill Peterson is a man for whom I had great respect. He was a very good judge, and he wrote good stuff, and I think it was one of those things where his opinion simply said it all, and there wasn't any point in our trying to embellish on it and frankly, I had been a trial judge, and I think I had some concept of how a trial judge would feel to see his opinion in the books, and Bill was certainly somebody who was every bit as bright as the people on the Michigan Supreme Court and had the chips fallen differently in his life, he might very well have been a member of the Supreme Court and a good one, so I kind of thought if there wasn't any reason to try to improve on it, why not give Bill the byline. I did the same thing one time in an argument by a lawyer. I think his name was Nelson. I think it was Roy Nelson who made an argument in court one day, and whether it was a dissent or...I think it was a dissenting opinion. I simply said that I could not make a better, give a better reason for dissenting in this opinion than to state the argument of counsel, and I simply stated it verbatim. On another occasion, I wrote a very short opinion, dissenting opinion in which I said I dissent from the majority opinion for the reasons given in the majority opinion.

Mr. Lane:
What was that case? Do you remember?

Justice Brennan:
I can't recall it, but I know I said it. I mean, it was a situation where they gave so many good reasons for going the opposite direction than they did, I couldn't have said it better, so I just said I dissent for the reasons given in the majority opinion.

Mr. Lane:
Bill Peterson was mentioned from time to time as a very possible appointee when a couple of these vacancies, I think maybe when your vacancy occurred.

Justice Brennan:
Possibly.

Mr. Lane:
Because he was a Republican judge, and...

Justice Brennan:
From Wexford, Cadillac, Michigan.

(interruption in taping)


Topic 6: Mr. Brennan and Mr. Lane discuss the case of Dorothy Riley, a Michigan Supreme Court Justice, and his attempts to prevent her removal from the court


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Mr. Lane:
Now, Justice Brennan, I would like to have you discuss your activity on the Dorothy Riley case, and I refer, of course, to the litigation that occurred after her appointment in 1982 in November.

Justice Brennan:
All right, now, you understand that I had left the Court at the end of 1973, so I was, at that point in time, some nine years off of the bench. The Riley case came up when Justice Dorothy Comstock Riley was appointed by Governor Milliken to the vacancy created by the death of Blair Moody, Jr. Blair Moody, Jr. died the day or two days after Thanksgiving

Justice Brennan:
He had just been elected to a full term of office which would have commenced the following January 1st. Governor Milliken had not run for re-election and was, of course, no longer going to be governor after the first of the year. James Blanchard had been elected governor, would take office on the first of January, 1983. Apparently, the Blanchard administration and some others concluded that Dorothy Comstock Riley's appointment should only last until the 31st of December. The paper that Dorothy Riley received from Governor Milliken said that she was appointed until the first of January, 1975 which would have been the...

Mr. Lane:
Excuse me, sir, not 1975 in any event...

Justice Brennan:
In 1985.

Mr. Lane:
Could have been until the election next succeeding the start of 1983?

Justice Brennan:
Yes, the next regular election at which justices of the Court were to be elected, was the November, 1984 election, and I may be mis-stating this, but I don't think I am. It was my recollection...it is my recollection that the appointment specified January 1, 1985 though it may have said the first of January next succeeding the next election. That's what the statute says. Maybe it's the constitution, I don't know, but anyway, there is language that specifies how long the appointment lasts, and it does say it lasts until the first day of January next succeeding the next general election at which the successor is to be elected. In any case, a lawsuit was commenced by the Attorney General of the state which is known as a quo warranto action. Quo warranto is an old legal writ which is used for the purpose of questioning the authority by which a person presumes to exercise a public office, and traditionally, at the common law, the quo warranto proceeding, if successful, results in an ouster or a writ or whatever, ousting someone from a public office, removing them from the public office. And the purpose of this lawsuit was to remove Dorothy Riley from her office as a Justice of the Michigan Supreme Court. I was very, very unhappy with the Attorney General's lawsuit. I felt it was very political. I felt it demeaned the Court. It certainly did a tremendous injustice to a lady who was a distinguished jurist and who had been appointed, in my opinion, quite properly under the law and should have served until the next election. It was, I felt, a very political move in an effort to get an appointment to the Court by a friend of the new governor, someone that the governor would want to appoint based on whatever reasons he may have had, and the claim was made that this should have been Jim Blanchard's appointment because, in fact, if I'm not mistaken,...had Moody defeated Dorothy Riley in the election?

Mr. Lane:
She ran third to Moody, Mike Cavanagh, and then she ran about 11,000 or 12,000 behind Mike, I think.


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Justice Brennan:
Yes, so she had been defeated by Moody and Cavanagh, but in any case, she had not been elected. I think there was still the kind of partisan sense or feeling around and about over that, and the concept that well, the Democrats had run the election. A Democratic nominee to the Court had been elected, therefore, putting the Republican nominee in and having that person serve for two years was wrong. It didn't feel good. It didn't seem appropriate, at least to the Democrats. I read the constitution, the statutes very clearly that she was to serve until after the next election, and moreover, when this lawsuit was started, I seemed to recall that there was a constitutional provision prohibiting the Court from removing a judge, and I looked it up and sure enough, there it was in so many words: "The Supreme Court shall not have the power to remove a judge". Now, it seems to me that that language means what it says. If the people of the state of Michigan wrote that into our constitution, we wrote it in for a purpose, and whatever the purpose is, clearly the intent of the people was that the Court could not remove a judge. Now, this lawsuit then continued. Dorothy Riley was to her everlasting credit, very quiet about the thing, didn't take a public position, tried to continue doing her job. I learned later through a number of sources that she was treated very poorly on the Court, very disrespectfully by some members of the Court who did not keep her posted on things that were happening within the Court and so forth, though no one really challenged her right to sit on the Court. The other members of the Court didn't say "you don't belong here. Get out", but she disqualified herself from participation, obviously, in the case that involved her. I can't remember whether she recused herself from participation in all cases or not. She may have for a while though I'm not sure. In any case, that's of no consequence. I can't tell you what triggered my decision to become involved, but something inside of me said "you've got to do something about this. This is a travesty of justice. The Court is embarrassing itself". The Court was getting bad publicity and ink and so forth. I'm not sure now exactly of the sequence of events, but it came...there came a time when the Court heard this quo warranto petition by Kelly, the Attorney General and decided by a split vote to deny the petition, and this occurred on a Thursday or Friday and the following Monday, the Court reversed itself and decided to grant the petition and issued an order ousting Dorothy Riley from membership on the Court. I am going to guess that this is probably well into February if not March or later.

Mr. Lane:
February.

Justice Brennan:
...of that year in 1983. I can't tell you again exactly where, at what point I became involved but I remember that that episode of the switch, change of decision on its own motion, was just another straw that breaks the camel's back as far as I was concerned. I embarked upon a public relations campaign or a public effort to try to generate popular opinion in support of Dorothy Riley and to create a public demand that the Court reconsider what it was doing or had done.

Mr. Lane:
Prior to that, you had appeared before the Court and made a legal argument, did you not?

Justice Brennan:
No.

Mr. Lane:
You had not?

Justice Brennan:
No. I don't think so. I think I thought of that as...you know, I could be wrong about the sequence of things. Let's see. Why don't you give me some hint here...I remember holding a press conference over in the state capital in which I said the Court was wrong in attempting to kick her off, or that the lawsuit was wrong. I can't recall exactly.

(interruption in taping)


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Justice Brennan:
It was, as I believe, before the decision was made in the lawsuit, that I began to mount this public relations campaign and I remember that I put together a rather extensive book called "Supreme Court vs. Dorothy Riley" or "The Matter of Dorothy Riley" or whatever it was called, and it was copies of all the litigation papers, etc., etc. One of the things that I accused the Attorney General of doing was deliberately hiding from the Court the particular constitutional provision that I quoted that says the Supreme Court shall not remove a judge. This whole case went to and through the entire Supreme Court. The decision was made to take her off the Court, and yet, nobody in the Court had ever argued that constitutional provision. It was never mentioned in the briefs or anything, and I pointed out that in the brief of the Attorney General, they had come right down to it. It even dealt with the same section or the section right before it, and had come right down to that language that said the Supreme Court should not have the power to remove a judge, and they stopped quoting the statute or the constitution, almost as though they were deliberately trying to keep these words away from the Supreme Court by hoping they wouldn't find them in the constitution, and apparently, nobody did because there isn't any evidence at all, no record whatsoever, in the oral arguments or the briefs or in the opinions of the Court or anything that anyone ever dealt with that language. Had the Supreme Court said, "Yes, we know that the constitution says the Supreme Court shall not have the power to remove a judge, but we don't think it applies in this case for this reason and that reason and that reason", at least they would have created a little film or veneer of judicial interpretation, but there was no effort to do that at all. The only conclusion you can come to looking at this whole thing was that nobody...either nobody saw that language or if they did, they didn't want to talk about it. So in any case, I went out to the law schools around. I went to the University of Michigan Law School, Wayne State, Detroit College of Law, and here at Cooley and every place I went, we put up notices around that ex-Justice Brennan was going to be here talking about the Dorothy Riley case which was big news at that time. So we got good turn outs among the various students and the press covered us. It was like a teach-in. I was going around lecturing about the constitution, what it said, how this whole thing had come to pass, what a travesty it was and what should be done, hoping that I would generate some popular support for Dorothy Riley and some public opinion that the Court was making a mistake to back them off. Whatever I did, I didn't do enough of it. It wasn't that successful. My sense was as I went along that the press basically treated the matter as Republicans vs. Democrats, and all of my nice arguments about ignoring the constitution and not being faithful to oaths of office and all the rest of it was just rhetoric, that all had to be understood in the context that I was a Republican and so was Dorothy Riley, and that the Democrats had won the election, and this is what Kelly, the Democrat and Blanchard, the Democrat and Soapy Williams and Mike Cavanagh and all the other Democrats on the Court wanted to do, and you could talk until you were blue in the face and you couldn't persuade the newspapers that in fact, there were high principles at stake than just that to the winner goes the spoils. Nonetheless, after this attempt at revving up public opinion, I finally concluded that my only shot and my last hope was to try to lay a guilt trip on the Court and see if maybe the justices themselves would back off, if they could appreciate the enormity of what they had done. I announced at a press conference that I was going to be at Court at the opening of Court in the March session. In the meantime, I concocted a writ, an application for a writ which is probably not been seen in the courts of this land in several centuries, but it was a legitimate writ from the old common law called an Application for Writ of Coram Vobis, and coram vobis means "our hearts", Whether it is coram vobis or ad coram vobis, I forget. I think it is coram vobis, and it was a writ that was sort of used in the old days as a last resort. You could call it the St. Jude writ, you know, the case of the hopeless case, the patron saint of the hopeless cases, but it was a writ that addressed itself to our hearts, that's where the...the word coram means heart and vobis means us or our, so it was a writ that appeals to our hearts, and it was an attempt to get the Court to review this matter down deep in their own guts and re-think it. I filed it with the clerk, and I don't know if I paid a fee or they didn't know what kind of a fee you'd pay for such a writ. I think the clerk just accepted the writ and made copies and delivered them to the justices, and so there I was asking the Court for this writ, and of course, there was no procedure for me to appear to anything like that, no Court rule that covered this situation, so just went and sat in the courtroom as I had said publicly I would do, and somebody in the press asked me...can that machine hear me if I talk loud as I walk?

Mr. Lane:
Sure.


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Justice Brennan:
Somebody in the press asked me what I would do if the Court did not recognize me when I showed up and I said, "Well, I think what I will do is simply sit underneath the clock and stay there until they see me". Well, I didn't have to do that. When I got to Court that day, the first case was a case in which George Bushnell, former president of the American Bar Association, was counsel, so it was his case, and he was the first speaker, and I asked him if he would allow me to take the podium, and he said yes. In the meantime, the Court had met and talked about my writ and apparently had decided they were going to listen to me, so Justice Williams who was then Chief Justice called on me and I proceeded to speak. I'm now looking through some of my speeches to see if I have my remarks on that occasion. I thought it might be here, but maybe it isn't. I might be among my Dorothy Riley files. I had quite an extensive file on this whole business. No, I'm afraid I don't have it here. It must be with some other files.

Mr. Lane:
Was that kind of a last salute, you might say, in this campaign?

Justice Brennan:
Yes, I didn't...at that point in time, I realized that the public campaign was not likely to succeed, that basically what I had to do was make my pitch to the Court to try to persuade them to undo what they had done, and if I was unsuccessful in that, I really didn't have much recourse.

Mr. Lane:
The vote stood, after the Court settled its mind, stood 4:2, didn't it? You remember, it had been 3:3 and Levin who had taken sort of a straddle, through in with what became the majority.

Justice Brennan:
Of course, it was 3:3 because Dorothy had recused herself from acting in the cast, so there were only six justices acting, and you had Brickley...

Mr. Lane:
Brickley and Ryan on the one side.

Justice Brennan:
Ryan, and who was the third.

Mr. Lane:
It would have been Levin because Levin took the position that was very different...

Justice Brennan:
Yes, Levin had voted with Brickley and Ryan the first time around to deny the writ or at least, not to grant the writ, so there being only three votes to grant the writ and three votes not to grant the writ, the writ was not granted.

Mr. Lane:
Correct.

Justice Brennan:
And then over the weekend, Levin changed his mind.

Mr. Lane:
How do you explain that or doesn't that require an explanation? A person can change his mind in any kind of a legal proceeding, I suppose, or was there something about this? His explanation, as I recall, was that is intolerable to have this situation that then existed, and "so I decided to break the tie and settle the issue into a clear-cut conclusion".

Justice Brennan:
Of course, it was brought to a clear-cut conclusion the previous Friday.


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Mr. Lane:
Okay, that certainly...

Justice Brennan:
Even though it was a 3:3 vote, the conclusion was clear-cut because the law is that you have to have four votes to issue the writ and since there were three votes to issue the writ and three votes not to issue the writ, the issue did not writ. The matter was settled, and the case was over. As a matter of fact, Dorothy Riley was in Mike Cavanagh's office on that following Monday, and they had been colleagues together on the Court of Appeals. They were now colleagues on the Supreme Court. They had just gone through this traumatic experience in which Mike had voted against Dorothy to stay on the Court. She was apparently conceding to him the sincerity of his position, and he was trying to make her understand that it was not something he had against her personally that caused him to vote as he thought he was obliged to do, and they were sort of mending fences, and then Dorothy left and returned to her hotel room. Within an hour, the clerk of the Court arrived with a piece of paper and handed it to her saying that she was ousted from the Court. What had happened in the meantime between the time that Dorothy left Mike Cavanagh and the time she was ousted was that Cavanagh was summoned to Chief Justice Williams' office and told that Levin had changed his mind and they now had the votes to oust her, and of course, this meeting of the Court occurred at a time when Justice Ryan was teaching at Cooley Law School that evening. There was no scheduled meeting of the Court. He called, apparently, just to touch base to see what was happening after he got out of class, were there any messages for him or whatever, and then he was informed that this meeting was taking place, and he promptly raced over to the Supreme Court chambers and burst into the Chief Justice's offices where the others were sitting, and gave him an earful of his opinion as to what the...the impropriety of what they were doing. The whole story of the Dorothy Riley thing was so political and so filled with those kinds of pure power plays with no procedure and no propriety, not even an attempt to appear to be proper, just raw power. You've got the votes, shove it down everybody's throat type of thing. It was an embarrassing chapter in the history of the Supreme Court. No doubt about it.

Mr. Lane:
The irony of it is, of course, two years later she ran again and was elected, and defeated one of those that...

Justice Brennan:
And defeated an incumbent justice who had voted against her.

Mr. Lane:
And I think the public perception was that that was a big part of what the whole campaign was all about, the political race on that occasion.

(End of side 1, tape 6)


Topic 7: Justice Brennan continues his discussion of Dorothy Riley's case and his thoughts on its origin and motivations, including a discussion on the selection process for Chief Justice


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Mr. Lane:
Excuse me...

Justice Brennan:
I think Dorothy's decision to be quiet throughout that whole thing was well taken.

Mr. Lane:
Oh, yes.

Justice Brennan:
And it certainly helped her in the election. At the time, I wasn't that sure that it was well taken.

Mr. Lane:
I think every where she went, people would bring it up, and that was the better way for it to be brought up by somebody saying, "Well, now, would you please tell us what this was all about?"

Justice Brennan:
But she wouldn't. She wouldn't talk about it, and her view was that she was going to be above the fray and as I say, it may have worked out well for her. I recall, however, having had been very annoyed, for example...I was annoyed at her counsel. She had Fred Buesser's office representing her in the quo warranto matter, and I remember talking to Fred, Jr. or Fred, III about it and being quite upset over what I thought to be a somewhat less than aggressive attitude on their part about the defense. I think that was part of their strategy was to keep her appearing very lady-like and very non-aggressive and not all that assertive, but on the other hand, the argument about the Supreme Court shall not have the power to remove a judge was never raised by her lawyers, and I expressed some surprise about that. It cost me a couple years of very long-standing friendship with Fred Buesser.

Mr. Lane:
You know what struck me about this, if I may volunteer, here's a political activity going on when Kelly...you know, the day after the appointment, this was raised, and Blanchard wasn't even in office, and I'm talking the validity of the extended appointment, lasting beyond the start of the Blanchard gubernatorial period, but I thought if you're talking about political forces and political rights and all that which was bubbling right below the surface. This was not your standard lawsuit.

Justice Brennan:
No, it wasn't, and I'll say this quite frankly - I didn't have real hard evidence but I had some evidence, and I was convinced of it and I am convinced of it to this day, that the genesis of that lawsuit was in the office of the Chief Justice. The first drafts of the lawsuit were done by people working for Soapy Williams, and it was shifted from there to the Attorney General's office and from there, got massaged and came out as a lawsuit.

Mr. Lane:
That's really something.

Justice Brennan:
And the reason that Soapy was concerned about it was because Soapy wanted to be Chief Justice. He had wanted to be Chief Justice for years and in fact, had kind of stepped up to the plate on a couple of occasions and then counted noses, and Mary Coleman won it so he backed away trying to appear gracious, but he still wanted to be Chief Justice. This was his year, okay, and he had the votes lined up and was ready to go. Now, all of a sudden, Blair Moody died, and it was a new ball game. Milliken comes in and appoints a Republican, and you've got Brickley, Ryan and Riley at that point and Fitzgerald.

Mr. Lane:
Fitz would have been off in January.

Justice Brennan:
He would have been off in January, but in December, Fitz was still there and in fact, the four of them elected, because Mary Coleman had left, elected John Fitzgerald as Chief Justice, and John was Chief Justice for about a month or so. Two weeks is all?

Mr. Lane:
Two months until the end of year.

Justice Brennan:
Two months from the time of the election until the end of the year.

Mr. Lane:
Well...

Justice Brennan:
Let me just finish the thought. The concern there was that if, after January 1, it was going to be three Republicans and the four Democrats again, that the same stalemate that had existed which had caused Mary Coleman to be elected, would operate to elect some other Republican. The fly in the ointment than still being Chuck Levin who, himself, wanted to be Chief Justice, and wasn't very fond of Soapy Williams at all to begin with.


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Mr. Lane:
At one time, Black, Gene Black in his fulminations against the political reach into the Court of political forces, condemned the idea that the Chief Justice should be chosen in this fashion by other members of the Court. What observation would you make about that? He talked...he called it, I think, an evil system that every time the number came up that it's time to elect one again, that there were real serious problems. Does that make any...?

Justice Brennan:
I do recall that was Gene's attitude. Gene was a populist on some things. On other things, he wasn't in favor of self-government at all. My sense of it is that democracy is the worst form of government except for all the other forms of government. In terms of a selection process, I feel the same way about selecting the Chief Justice as I do about the election of judges in the first place. You can talk about all other kinds of systems or ways of selecting a Chief Justice, and every one of them has problems. This one has problems. The members of the Court select their own leader. Well, I guess that's pretty good unless God's going to come down and appoint a leader for them or the governor is going to appoint a leader which is certainly going to be political, or you're going to rotate the leadership which is not going to give you leadership at all, it's just a kind of interim secretariat Chief-Justiceship. You could draw the names out of a hat, but you know, what other method is there that assures that the person who is the leader of the Court or who speaks for the Court, is the recognized head of the operation...what other system is there that assures that that person has the support of the people on the Court?

Mr. Lane:
Doubling back, this business that you mentioned of the report or your knowledge or whatever it was that you had determined to your satisfaction that the original legal paperwork that resulted in the Court's decision coming through Kelly's lawsuit originated in Williams' office. Is that...I have never heard that before. Is that pretty good knowledge as far as you are concerned?

Justice Brennan:
It was out and about, and I--

(interruption in taping)

Justice Brennan:
...inside information with respect to that. If I recall correctly, and it's a little vague in my mind now, what it was was a memorandum of some sort, a legal memorandum generated by one of his staff supporting the idea that her appointment was improper or illegal.

Mr. Lane:
Maybe not the first draft of the suit?

Justice Brennan:
Oh, not necessarily the first draft of the suit but I'm saying the genesis of the suit in the sense that it was the first time that the legal arguments which ultimately became the brief filed by Kelly had been put down on paper was the theory of that lawsuit was developed at that point. I think that's probably true.

Mr. Lane:
Well, is there anything more to say on the Riley episode?

Justice Brennan:
No, that's really...


Topic 8: Justice Brennan talks about how the process and starting Cooley Law School in Lansing came about


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Mr. Lane:
Okay, well...then I would like you to talk a little bit about the origination of the idea for Cooley Law School and how this entered into your activity while you were sitting on the Court and then it caused some friction later on and all that sort of thing. Would you deal with that for a while?

Justice Brennan:
Okay. Of course, I had been Chief Justice. I went off as Chief Justice in the end of 1970 and found myself with a good deal of time on my hands. I was accustomed to working 16 - 18 hour day as Chief Justice, and suddenly all I had to do was to take care of my own opinions and do my own thing.

Mr. Lane:
File dissents.

Justice Brennan:
And file dissents. I had a lot of dissenting opinions to write, no question about that. But even there, a dissenting opinion is not nearly as much work as a majority opinion because you don't have to...you don't have to do the original scholarship. You just sort of have to take a pot shot at what the other person does, and say why his arguments or her arguments don't make sense.

Mr. Lane:
Sort of a counter-punch.

Justice Brennan:
Counter-punch, which is easier. It's shorter, generally, and there is not nearly as much discipline in the writing of dissents. Anyway, I set about to build a kitchen in my house, and for about six to eight months, I was very much involved in that. In due course of time...I can't tell you when it was, but I used to get a lot of telephone calls from people who wanted me to help get their sons or brothers or cousins into law school, and they'd usually say, "Judge, I helped you in your election campaigns, and now it is time for you to do me a favor. Have you got any connections at the university?" I would make phone calls on behalf of friends and supporters and say to the dean of the law school, "Can you do any good for this person?" or whatever. Typically, the answer came back...I remember one time being told that there were 6,000 applications for 300 seats at the University of Michigan Law School, and it was just a terrible crunch, and there wasn't a prayer of getting anybody in. One particular time, I was calling a fellow back to tell him that I couldn't help him. As a matter of fact, he is a bondsman out of Detroit by the name of Charlie Goldfarb, Chuck Goldfarb, and we were having this conversation and I said, "I can't help you". I think it was his brother he wanted to get into law school, and I said, "You know what I ought to do? I ought to start a law school up here in Lansing. We could really use one".

Mr. Lane:
Just spontaneously, off the top of your head?

Justice Brennan:
Just one of those off the cuff joking, half-joking comments, you know, and he sort of laughed, and he said, "You know, you do that judge, and I'll send you your first $1,000.00". So we both laughed and hung up the phone. I sat there thinking about it and thinking about the crush of applicants to the law school and so on, various law schools. I called in my law clerk, then a young man by the name of John Gibbons, and I said, "John, what do I have to do to start a law school?". He said, "I don't know". I said, "Find out".

Mr. Lane:
This is 1971?

Justice Brennan:
This is 1971, so he went and he came back in about an hour and he said, "If I'm correct, judge, as I read the law, all you need to do is to form a non-profit corporation". I said, "What do I need for a non-profit corporation?" He replied that I needed three citizens and a $20.00 filing fee, so I said, "Well, John, there's you and I, and I'll get a third fellow". I called my friend, Louis A. Smith who was a local attorney, and I said, "Lou, I'd like to start a law school. Would you like to be on my Board of Directors?". He said sure, and I said okay.

Mr. Lane:
What was the law clerk's name?

Justice Brennan:
John Gibbons.

Mr. Lane:
Just like it sounds?

Justice Brennan:
Yes. Lou Smith agreed. I then prepared proposed articles of incorporation for a law school to be called the State College of Law, and gave it to John Gibbons to file over in the Corporation and Securities Division, and John put up the $20.00 for the filing fee. The first thing that the lady did at the Corporation and Securities Commission when she received the articles was, seeing what had called for the creation of an educational institution was to put the application for a charter in her drawer instead of routinely stamping it and issuing the charter because she understood under the law that there were certain requirements that had to be met and that the State Department of Education would have to pass on this thing. Well, then we heard from the Department of Education. I believe at that time that John Porter was the Superintendent of Public Instruction, and the first thing they told us was that we couldn't use the name "State College of Law" because it inferred that the state had some role to play in our college, and that the word "state" was a word of art in these things and the only time you could use the word "state" in the name of a school was if, in fact, it was a state university or state college. So that was fine. I had written a letter to Stanley Beattie.


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Mr. Lane:
How do you spell his last name?

Justice Brennan:
B-e-a-t-t-i-e.

Mr. Lane:
He was the Chairman of the Board of Law Examiners, was he?

Justice Brennan:
He was at one time the Chairman of the Board of Law Examiners for maybe 17 years. He was an adjunct professor of law at the University of Detroit and had taught me. I wrote to him and the other members of the Board of Law Examiners talking about my idea that we should start a law school in Lansing. I got a lovely letter back from Stanley. All of this is in a file which I thought I could find in my drawer, but I can't. My secretary has it someplace. He wrote back and said, "It's a great idea. You need $2 million and a fine faculty". Of course, we didn't have the $2 million or anything like it. So...well, I could truncate this story, but...

Mr. Lane:
Excuse me. At this time, had you seriously began to discuss this and think about who you could get to come and teach classes, or was this still sort of a...?

Justice Brennan:
I think at this point in time, when I first filed the articles, it was my concept. If you'd have asked me what I really was thinking about, I would have said, "Well, maybe John Fitzgerald and I and maybe a couple of other judges would rent an old house in downtown Lansing". I'd put my personal law library in it in the dining room and we would have 12 students, sort of like Leland Carr, the old Circuit Judge had down here in Lansing, and if, over a period of years, after I died, it would become a real law school, what a wonderful thing to have been part of the creation of that educational embryo, but what happened was the Michigan Department of Education appointed a committee of scholars, and the committee of scholars took a very hard line with respect to the thing.

Mr. Lane:
What was the purpose of this committee? To ascertain what?

Justice Brennan:
The purpose of the committee essentially was to ascertain, I suppose, whether our objectives were legitimate. Whether in fact what we proposed to do was legitimately an educational institution, I guess. They took the position, and I think absolutely wrong, but they took the position from the get-go that they would not approve our charter for filing unless we proposed to conduct a law school that would be accredited by the American Bar Association. Now, think about that. Here is an American state, one of the fifty states of the American union in which we have all these freedoms and so forth, freedom of religion, freedom of speech, freedom of assembly. In Michigan, we specifically refer to freedom of association...and we're being told that we cannot start a college, an educational institution unless we are approved to do so by a private organization, much as though if you had wanted to start a church and you were told by the Michigan Church Commission that you can't start a church unless you get approval of the Council of Churches or something like that. Now, I can't conceive of any activity, short maybe of starting a church or a newspaper which is holy, of course. There's another example. Suppose you tried to start, incorporate a newspaper, and the Michigan Newspaper Commission told you you couldn't have a charter to start a newspaper in Michigan until you were approved by the Associated Press. That would be a perfect example. Well, that's what they told us. Well, I suppose I could have argued from then until doomsday about the propriety of their saying so, but what I did was I simply said, "Okay, you want an ABA approved school? We'll give you an ABA approved school", and I proceeded to get the ABA regulations and contact the American Bar Association and get an outline as to what we needed to do in order to operate a school that was approved by the American Bar Association. The first rule was that you have to have a full-time dean. You had to have six full-time faculty members, and you had to have so many books in your library, and those were the basic rules. There were a lot of other things, but those were the hard quantitative things that you had to meet. I said, "That's doable", so our prospectus began to grow every time the committee had a meeting and they put more and more demands on us, we built our prospectus and said, "Yes, we'll do that. We can do that. Yes, we'll do that", so pretty soon, within a period of months, the prospectus had now grown to be quite a substantial thing that we intended to do, and that was to create a law school that would be approved by the American Bar Association. During that whole period of time, Stanley Beattie had suggested after we were told that we couldn't use "State College of Law", he had suggested that we use the name Thomas Cooley, and that was a good one, and we amended the articles of incorporation, petition for charter to change the name. We finally reached a point where the Department of Education said, "Well, now you're looking pretty good here, but the statute says in order to get a charter that allows you to grant degrees over and above the Bachelor's degree, you need a university charter, and a university charter, under the statute, you must have at least $1 million in capital to start a university", and I did a little research and I came back to them and I said, "Well, that's true. That's what the statute says, but the statute also says that the State Department of Education may make rules and regulations whereby they extrapolate guaranteed annual income against the $1 million" so that if you had an income of a certain number of dollars, they would say that takes care of the $1 million requirement, and the State Board of Education had, in fact, adopted such regulations and the regulation simply was that they would treat income at a rate of 33:1. I think that was it, so that all we had to do was to prove that we had, that we would have a guaranteed annual income of $30,000 in order to meet the $1 million requirement. $30,000 x 33 would be $1 million, okay. I said, "Well, it's very simple. We're going to have...here are the names of our applicants. We're going to have a first class of 75 students in it. They're going to pay us $50.00/credit hour, so we're going to get so much dollars from each one of these. In the very first term, just by June, we will take in $42,000.00, and so we're going to have a guaranteed income of substantially more than the $30,000 from our students".


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Mr. Lane:
You jumped ahead and got 75 applicants. How did that happen?

Justice Brennan:
Okay, we'll come back then to the dollars, the dollar problem. Somewhere along the line...who was the old Lansing reporter? I can see his face...

Mr. Lane:
Howard Rugg?

Justice Brennan:
No.

Mr. Lane:
Bill Baird?

Justice Brennan:
No.

Mr. Lane:
Was he a...

Justice Brennan:
Starts with a "C".

Mr. Lane:
You don't mean Elvie...?

Justice Brennan:
Kulsea.

Mr. Lane:
Bill Kulsea.

Justice Brennan:
Bill Kulsea wrote an article "Judge Brennan to Start Law School in Lansing". I have to say that amuses me because at the same time that I was in the process of starting the law school here, Michigan State University was trying to get a law school out at the university, and every time there would be a little story in the paper, "Judge Brennan to Start Law School", "Judge Brennan Files for Charter", "Judge Brennan does this"...it would be a little tiny article and every time Michigan State University was even suggested..."Study to be Made", "Study Recommended", nothing happening, no steps, no progress, just another speculative story about somebody saying it was a good idea to have a law school at Michigan State University. They'd get a headline, and we'd get these little squibby stories, but the little squibby stories began to be noticed by people, and I would get letters from people -"When you start your law school, Judge, I want to go there". Pretty soon, I had 300 letters from people, and I had a standard form that I had my secretary send out - "The Judge thanks you very much for your interest. If and when the school is started, you will be sent an application, an opportunity to apply".

Mr. Lane:
At this time, you're still operating out of your back pocket, so to speak?

Justice Brennan:
Well, I'm operating out of my office as a Justice of the Court. We have no letterhead, we have no nothing. It's just me doing this thing there, you know.

Mr. Lane:
Where are we in the course of calendar time, now? 1972?

Justice Brennan:
No, this would be 1971. In 1971, the first letter that I did...the first time anything is written on a piece of paper was my letter to the Board of Law Examiners in May, 1971, and shortly after that, I believe in the spring of 1971, I filed the Application for Charter, and the thing I'm talking about, this business with the Board of Education and the Committee of Scholars who were representatives of the other law schools in Michigan; that's who they were...two from Detroit College of Law and two from U of M and two from Wayne State plus a couple from the Board of Law Examiners...this all went through the fall and winter of 1971 and these negotiations about the $1 million and so on, and I was telling that story. We needed to prove $30,000 of income, and we satisfied them that we would have enough students to do that. Then they came back with one final necessity, and they said, "Okay, you've got the $30,000. You can prove that you've got that, but there's another regulation which says you must have at least half of your guaranteed annual income paid and in cash. Now you need $15,000 cash. No other excuses". We didn't have $15,000 in cash. I had opened a bank account at the Michigan National Bank with a $50.00 check of my own money, and I said to Bob Fisher who was then at the bank, "This is to start a law school with. If we never start the law school, any money in this account with go to Detroit College of Law", so I had, in fact, created a trust account for legal education, and my $50.00 plus $500.00 from a Detroit lawyer by the name of Hugh Ross, and I can't tell you why I got $500.00 from Huey. He was an old friend, and I probably mentioned it to him at a cocktail party or something, and he said he would send some money and he did, and $1,000 from the Clark Equipment Company in Buchanan, Michigan though Dick McCormick who was then the general counsel over there, so $1,550 was all I had in the bank, and it was these three contributions. When the Board of Education said I had to have $15,000, I called up Bud Stoddard, then the president of the Michigan National Bank, and I said, "Bud, I need $15,000 to start a law school", and he said, "Judge, you've got it. Don't worry about it", and I shortly had, from Michigan National Bank, a letter of credit for $15,000, and I filed the letter of credit with the Department of Education, and they felt that covered our situation in terms of having the $15,000. In due course, a vote was taken by the State Department, Board of Education. Jim O'Neill was on it, used to be at Ford Motor Company, a Republican. Tommy Brennan was on it.


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Mr. Lane:
Who?

Justice Brennan:
Thomas J. Brennan.

Mr. Lane:
Oh, yes. I remember him.

Justice Brennan:
Out of Detroit, a Democrat who is now on the Court of Appeals. He was on it, and I remember that night. I came up and kind of cracked open the door and gave Tom the signal and he came out and talked to me and "How's it going?" and this and that and so forth. There were a lot of speeches made. There were some people on the Board of Education who were deathly opposed to all private education. I forget her name...Marilyn Kelly who is now a judge was one of the people who was negative...Anita Miller was the one who was absolutely death on private schools and independent schools. She was absolutely opposed to the organization of a law school, but suffice it to say we got the votes. We got the thing passed, and we got the charter issued. The charter was issued on...

Mr. Lane:
Did you get five, five votes out of eight?

Justice Brennan:
Whatever it was. I forget the number. Whatever we needed. The charter was issued on 6/19/72. I went to see Bob Fisher, and I said now we can use the $15,000. He said, "Bud Stoddard didn't mean to give you $15,000. He just meant that if you go broke and you're $15,000 in the red, we'll make it up, but in the meantime, you have to make it on your own".

Justice Brennan:
We rented this building, this upstairs of this building for $100.00/month.

Mr. Lane:
Had you begun to get static from the other schools at this point?

Justice Brennan:
No, other than the static that we got from the other schools in the process of the charter being issued.

Mr. Lane:
Well, was there fierce resistant at that point or?

Justice Brennan:
Fairly fierce resistance. As a matter of fact, I seem to remember that one of the people on that committee was Roy Profit from the University of Michigan, and I remember it this way because there is a certain poetic justice or injustice to it...I was told that the committee had voted and I saw the report that the committee had voted against issuing a charter to Cooley Law School. The committee said absolutely not, and here was there reasoning. They said...

Mr. Lane:
This is the committee, not the Board, right?

Justice Brennan:
This is the committee of scholars appointed by Porter...I just used the name...Dick Porter.

Mr. Lane:
John Porter.

Justice Brennan:
John Porter...this was the committee of scholars and after much deliberation, etc., etc., they came back and said, "What Judge Brennan proposes to do is valid. If he does what he says he is going to do, it will be perfectly fine and legitimate. However, we don't think it's feasible. It won't work. I won't fly. It's a bumblebee. The wings aren't big enough. It won't work and therefore, we recommend that no charter be issued because it is not a feasible proposition". That's when I became angry, and I wrote a blistering letter which I cannot find. It's gone. It's lost in my archives, but I wrote a very strong letter to John Porter and I think, I recall that the thing was made public and in fact, there was something in the press about it, but I said, "It's nobody's damn business whether it is feasible or not except those of us who are involved in the enterprise. We are the ones risking our reputations and our time and our energy and our resources to create this institution. If it isn't feasible, if it won't work, it will be our failure and nobody's business but our own". "Moreover", I said, "this whole business of a committee of scholars appointed, representatives of the other law schools, to decide whether we should be allowed to exercise our constitutional right to form an educational organization, is ludicrous. It is a conflict of interest to have those people sitting in judgment. It would be like having to ask every dairy in town as to whether you can start a dairy or whatever." So Roy Profit blew his stack. Roy is a wonderful man with high integrity, etc., etc., and it would never occur to him that he might have a conflict of interest or that he might do anything wrong, and I'm sure in his whole career, nobody ever said publicly at least, that he did anything wrong, and he didn't take to it very kindly, and he wrote me a blistering letter. I can't find that either. I know it was written, but he insisted that there was nothing improper at all about the committee's decision or these deliberations or...anyway, it was against that background that we had this meeting with the Board of Education where Tommy Brennan went to work for us and O'Neill and the others backed us up and managed to get the thing passed, but it was a very tense and a very controversial thing at that point in time.


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Mr. Lane:
Was that the high hurdle?

Justice Brennan:
No, not by a long shot, but that was the first hurdle, and we got by that in the spring of 1972. Then things got quiet for a period of time because after we had gotten the charter...but after all, they had said it wasn't feasible. They had said it wouldn't fly. They had said we couldn't do it, so then they were stuck with their own predictions, and I'm sure they believed their own predictions and so, "All right, Brennan's got a charter, but he'll never start the law school. It will never work", so they sort of paid no attention to us, and during the rest of 1972, we did the things. We rented the building. We prepared the application. We contacted the 300 people who had written to us. We hired teachers and ordered law books and went out and got chairs and blackboards and other things to get started with. In January, 1973, we began with our first class. It was a night school class with 75 students. Still, hardly anyone paid any attention to us, but there was a little story in the paper that Cooley had opened and congratulations and that sort of thing. Then the opposition began, and I think the principle source of the beginning of it was a professor of law at Wayne State University whose name escapes me now. It's Maurice something.

Mr. Lane:
Kelman?

Justice Brennan:
Yes, K-e-l-m-a-n?

Mr. Lane:
Yes.

Justice Brennan:
Yes, that would be it.

Mr. Lane:
Had you ever crossed his path in your earlier career?

Justice Brennan:
No, except I think he may have been on the committee of scholars. I think he was one of the people on the committee of scholars, so he had some lingering annoyance over the fact that we outmaneuvered them on that, but he proceeded to write some sort of a...oh, let me back off. I don't think that happened. Still, nobody paid any attention to us in January, but in April, 1973, just three or four months after we started the school, Thomas Cooley Law School got a letter unanimously signed by all the members of the Michigan Board of Law Examiners that our school was reputable and qualified and that our graduates would be able to take the bar examination in Michigan. Now, that was a wonderful story how that came about. We had a dinner here in Lansing. We had then organized our board, and we now had a dozen or so people on the board, and we had a dinner for them at Walnut Hills Country Club, and Millard Rudd who was then the consultant to the American Bar Association who was out of the University of Texas came here to speak to us, to tell us about what we needed to do to become an ABA accredited school, and I brought in a mystery guest to speak and participate in that dinner meeting that I didn't tell my board who it was, but it was a man named Thomas M. Cooley, II, who had been dean of the University of Pittsburgh Law School and had been a faculty member there for a number of years and who was a grandson of Thomas Cooley after whom our school was named. Well, we had a wonderful evening, and we heard from Millard Rudd about all the pitfalls and the problems of getting ABA accreditation, and we heard a nice talk from Tom Cooley who told us how his grandfather would have been proud of what we were doing and all this sort of thing, and he was just generally very encouraging. That was on a Friday night, and I think early the next morning, I put Professor Cooley back on the airplane, but I remember I had breakfast the following morning at the old Jack Tar Hotel with Stanley Beattie...and oh, also our guests invited to this thing were the members of the Board of Law Examiners, so Stan was one of them, and Doug Roche, whose father was Chairman of General Motors...I forget his father's name but Doug was a young attorney at the Dickenson, Wright law firm in Detroit.


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Mr. Lane:
R-o-c-h-e?

Justice Brennan:
R-o-c-h-e, but his father was Chairman at General Motors. Doug is a nice man, but hadn't been on the Board of Law Examiners as long as Stanley was and wasn't the same...didn't have the same confidence that Stanley did in what we were doing, but I had prepared a resolution of the Board of Law Examiners, "Be it resolved that Thomas M. Cooley is reputable, qualified under the statutes"...etc., etc.,..."and their graduates can take the law exam", and I asked Stanley to sign it. "Certainly", he said, "no problem", and he signed it. I said, "Now, Stan, we're going to have breakfast with Doug Roche, and I'd like to see if we can get Doug to come in on this with us", so we had breakfast and a long chat and back and forth...or maybe Stanley signed it at breakfast after talking with Roche; I don't know, but anyway, I came away from that breakfast with two signatures, Doug Roche and Stanley Beattie. The next day, I drove...it was a Sunday...I drove to church at Jesu and went out to Leonard Hyman's home in Oakland County. Leonard Hyman was a third member of the Board of Law Examiners, and I brought him the original document and he signed it. I then came back to Lansing on the following day which was a Monday and went over to Stuart Dunnings' office here in downtown Lansing, and Stuart signed it. Then, in the meantime, I had called on the telephone Dick Spindle who was the fifth member of the Board of Law Examiners, and a young lawyer from Grand Rapids, and I sent my son, Tom to Grand Rapids with the original document to have Dick Spindle sign it and he did. By supper time on Monday, I had all five signatures on that resolution. That really was what started Kelman and company going because at that point in time, now it was no longer an unfeasible little experiment, store-front law school. We were here to stay. Our graduates were going to take the Michigan Bar examination, even if the ABA didn't approve us, we were an existing law school whose graduates could become lawyers. As far as I was concerned, that was the real assurance that we were off and running. Shortly after that, Kelman wrote his memorandum in which he accused me of a conflict of interest.

Mr. Lane:
That's your first horn sounded on that subject, right?

Justice Brennan:
Yes, other than the sort of prophetic use of the phrase "conflict of interest" coming out of my pen when I accused those people on that board of having a conflict of interest, so when the phrase came back later on and hit me in the head, well, I thought to myself, "You live by the sword, you die by the sword", so I suppose one ought to expect it. But in any case, Kelman wrote this, and this was his theory, if you remember...his theory was that I was a Justice of the Michigan Supreme Court, and that I was using the power and prestige of my office for personal gain by creating this law school and that I had used the power and prestige of my office to lean on the members of the Board of Examiners who, in effect, work for the Supreme Court to get them to approve the law school. What's amusing about that is that it is half right because yes, I was a Justice of the Supreme Court. Whatever power and prestige and respect that office carried, I did lend to the creation of a law school. I mean, I went out front. It was Judge Brennan's law school that Judge Brennan was starting. That was why people wanted to come to school, and certainly there is no question in my mind that one of the reason Stanley Beattie and the rest of those guys signed that resolution was that former Chief Justice of the Michigan Supreme Court was one of the organizers of this law school, and there were other judges and people of prestige. Anybody we got on the board had to be somebody. We wanted people with good reputations, with good standing in the community. Why? So that their respect and standing in the community would reflect favorably on the school and would help the school, so of course, my prestige was being used to help the school, but that was no conflict of interest. It was not for personal gain. It was to accomplish something for a charitable educational institution. At the very same time, I was doing this, Bill Richardson who was the Chief Justice of the State of Hawaii was using all of his influence and power to start a law school in Hawaii which later became...

(End of side 2, tape 6)


Topic 9: Justice Brennan continues recounting the creation of Cooley Law School and issues raised by others concerning a possible conflict of interest with his occupation and his later decision to leave the court to run the law school. He then discusses its aim for practical scholarship, how it compared to other top law schools at the time, and issues with diversity


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Justice Brennan:
So I was just finishing the thought that in fact, not only did Chief Justice Richardson assist in the creation of the law school at the University of Hawaii, but it is now known as the William Richardson School of Law of the University of Hawaii, so the involvement of judges in legal education is historic, it's traditional, it's very proper. It is laudatory. It is not something that is bad for a judge to do.

Mr. Lane:
Cooley and Campbell were leading professors at the infant U of M school, weren't they?

Justice Brennan:
Certainly. I am fond of saying that Cooley was the first dean of University of Michigan Law School. I don't know if that is literally true, but I think he was the first professor of the Law Department, and Kelman ought to have known better than that, but yet he made the claim.

Mr. Lane:
Was he carrying water for somebody other than himself?

Justice Brennan:
Well, I don't know. I'll say this - that there were a lot of other people to get in on the water carrying because the next thing that happened was, among other things, Stanley Beattie told me that he was one time attending a meeting of the Harvard Alumni Club in Detroit at the Detroit Athletic Club and he was there accosted by Wade McCree who later became Solicitor General of the United States and a judge of the VI Circuit Court of Appeals and all that who immediately confronted him, accosted him and wanted to know, "Stanley, how come you are approving Brennan's store front diploma mill up in Lansing?" Stanley, of course, defended what he had done. The next thing that happened was that Stanley Beattie claims that...I don't know how well you knew Stanley. He had a wonderful phony Harvard accent that he used to put on. He was just an east-side Detroit kid that grew up but he went to Harvard and learned how to talk fancy, but he would say things like, "I was summoned to Armageddon, I was summoned to Armageddon", and that was the time he was asked to come to Brighton, Michigan to lunch at the Canopy Restaurant with then Chief Justice Thomas M. Kavanagh, then dean of the University of Michigan Law School, the labor guy, St. Antoine, Ted St. Antoine and then dean of Wayne State University Law School, Don Gordon and...

Mr. Lane:
Don Gordon?

Justice Brennan:
Don Gordon, and for some reason or another, John Swainson who was then a justice of the Michigan Supreme Court, so that group of six people was gathering and had invited Stanley Beattie to meet with them to explain why he did what he did. Now, the interesting thing about all of this was from the very first moment that I even thought, even thought of starting a law school. I think it was my first letter to the Board of Law Examiners. I had shared with my colleagues on the Michigan Supreme Court. I shared with them every step of the way everything we did in terms of applying...the development of the prospectus, the application for the charter, everything we were doing, and as a matter of fact, it was very common when I would come into the conference room for a meeting of the Justices of the Court for one or more of the justices to say to me, "Well, hi, Tom, how's the law school coming?", and I would give them the latest blow-by-blow as to what was happening. I think, in fact, that some of them thought it was kind of amusing, that it was pretty hopeless and foolish and silly idea that I had and I'm sure behind my back, there was a certain amount of tongue clucking over this goofy idea of Brennan's that he was going to create a law school out of thin air, but nonetheless, there were no secrets. And to his everlasting credit, Tom Kavanagh, when this Armageddon meeting occurred, was not persuaded that he needed to anything or should do anything. He said what Brennan does on his own time is his own business. "He's not doing anything wrong and we're not going to take any position on it at all".

Mr. Lane:
With the apparent hope that he would become a lever to get your enterprise off the track?

Justice Brennan:
To get me to drop the thing, to get me out of it. To get me to leave the law school alone, you know, and just drop it, and either to stop doing it or at least, turn it over to other people and get out of it. That was the gist of it. Ted St. Antoine, the dean of the University of Michigan Law School had written me a long letter, a two page letter in which he opposed the starting of the Cooley Law School, he would always oppose it. There was a need for a paralegal institute if I wanted to train legal secretaries or legal research clerks or something like that but not a real law school, and I replied to him, and I said, "You're a nice guy, Ted, and I'm going to save your letter because some day, you'll want to eat your words and I'll serve it up with a pate foie gras at a Bar Association Meeting", or something. I forget what I said. It was some wise remark like that, so the attempt was made there to get the Court to take a position to get me to drop the enterprise. I later recall a luncheon at the Lansing City Club with Chuck Levin and Tom Kavanagh, Thomas G. Kavanagh at which Levin...


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Mr. Lane:
Would this be now in the middle of 1973 or later?

Justice Brennan:
This would be probably...we're now into 1973. We're into maybe spring of 1973 at which Levin told me and Tom Kavanagh apparently supported the concept that I really ought to get out of the law school and there was trouble abrewing and that I was going to take some hits. I didn't know what those hits were, and Levin was very vague as to what they were, and I didn't know how he had any knowledge as to what the hits would be. At that point, that day, as I remember as I look back on it, it was my understanding, it was my perception that what they were trying to do was to tell me on behalf of the Court that the Court was going to back me off, and I told them I didn't think so. I said, "I don't know what votes you guys are counting, but the way I count the Court, the Court isn't going to make me back off at all" and so maybe I missed the track because maybe they were trying to warn me about some other things, bad things that were going to happen. What I later learned, probably you know this better than I, was that Kelman went ultimately to the Detroit Free Press and was able to persuade somebody - I'm assuming Ludtke or someone there, that the Court was not doing what it should do, that in fact, Brennan was operating some kind of a store front illegitimate bad thing law school, though I don't know why an educational institution is ever a bad thing, but they seemed to think it was, and that it was the public sacred duty of the Detroit Free Press to call this matter to the public's attention and shoot this enterprise down. Ludtke calls in one of his best hatchet men, Remer Tyson and sends him up here to work me over. We have, first of all, a meeting at the Savoyard Club, I believe it was, down in Detroit, and something makes me think that Bruce Donaldson was present as a go between or a host or whatever, but nonetheless, we had a good long chat down there.

Mr. Lane:
On this subject, with...?

Justice Brennan:
With Remer Tyson in which Tyson asked me lots of questions and so on and very probing questions about the law school and my relationship with it.

Mr. Lane:
Did he set up the lunch? Did he ask you to appear down there and talk with him?

Justice Brennan:
I believe so, though I'm not sure that maybe there wasn't...that Donaldson was maybe an intermediary there because Donaldson was the only one I knew that belonged to that club unless Tyson did. I don't know why I went there. Something makes me think there was somebody else at the table.

Mr. Lane:
How do you spell that place, Savoyard?

Justice Brennan:
I don't know.

Mr. Lane:
Okay, my problem.


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Justice Brennan:
I don't know, so then...out of that luncheon, we made kind of a tentative date that he was, Tyson was going to come to Lansing. I wanted to show him what we were doing. As a matter of fact, I remember it must have been around the spring or early summer of 1973 because we had just about that time gotten a lease on the Masonic Temple building. We were leasing the basement for our library and we had an option to buy the entire building, so he came up here. I showed him everything. I showed him our books of account. I showed him our files, anything he wanted to see. I took him through the Masonic Temple building. I was so proud of that building, what a wonderful school this is going to make, and I was showing him, "Now, here, we're going to be able to have an auditorium and here, we're going to have this nice big classrooms, and over here will be this and over here will be that", and I mean, I was just reveling in the whole thing. Of course, I was, I suppose, hopeful that we'd get some positive publicity. This was a school starting. It was a nice thing, a good thing for the community and so on. Tyson began writing his articles, and it was obviously clear to me from day one that his whole thrust was to kill us, and everything he wrote was negative. Everything he wrote was an attempt to paint me as some kind of an opportunistic character who was stealing money from young people under some false pretext that they were going to become lawyers some day and that I was just using my position as a justice of the Supreme Court, to cash in, to line my pockets and this was nothing but Brennan's retirement fund or get-rich-quick scheme or something like that. Despite the fact that I received no salary for working. I had received not a dime of compensation for organizing the school, for anything that I had done. I came down here on Sunday and kept the books. I mean, I did it in long-hand myself. We put on the fundraiser with Raymond Burr that spring, came into town, and we raised money for the so-called Founder's Society, and we tried to raise some money. We didn't raise a lot but we got some. I was granted by the school, by the Board of Directors, an expense account of $10,000 just to pick up for my travel and the other things I was doing, and whatever of that I didn't spend, I would have had to pay income tax on, and in that sense, you could say I suppose, I was getting $10,000, but that was an expense account if I...I'd have to look up my income tax returns, but I guess it that I accounted for at least that much in terms of expenses that I had in connection with the law school.

Mr. Lane:
Did this figure in Tyson's article? Do you remember? I don't think I ever knew that he had been sent here until I read the paper...it was a Sunday, wasn't it?

Justice Brennan:
I don't know what day it was when it started, but it became then a series of articles, and it was one thing after another that...I mean, it was like he wouldn't let go of it. He was always coming up with a new quote from somebody or a new attempt at a revelation, etc., etc. Then, of course, he went and got a quote. He went and got a quote from Milliken in which Milliken said he thought that I should choose between either the law school or the Court, and in fact, the Detroit Free Press, I think, had written an article, an editorial demanding that I resign from the bench or from the school or something like that. I forget what it was.

Mr. Lane:
Where are we now? How far into the year?

Justice Brennan:
We're into summer of 1973, and the Detroit...the State Journal, to its everlasting credit, came to my defense and said, "Hey, what's all this about a conflict of interest. Brennan isn't doing anything wrong. We've reported every step of the way everything he did to create the law school. Nobody was complaining of the fact when he opened the law school in January. There wasn't a word about any conflict of interest or anything. We just think this is a tempest in a teapot. There is nothing to it". In some sense, in this local community, it wasn't so ill-regarded, but the Free Press kept after it. Then, at some point along the line, it became, whether because of a press conference I had or something, the fact that my son was working in my office in the Supreme Court came to light and now, not only conflict of interest but nepotism was another word that could be used against me, and that "Judge Brennan was guilty of nepotism. He had hired his son". Well, I hired myself as a gopher, at a gopher's wages, whatever it was, and candidly, that was a mistake that I was not aware of. I was not aware that there was a specific canon of ethics that judges shouldn't be guilty of nepotism, they shouldn't hire their relatives. There is. I mean, it's a no-no. You're not supposed to do that. Of course, when I realized it, I told Tom he was through, wrapped up, and so he quit. It was not anything that I was embarrassed about. I personally felt it was a good faith thing that I did but it was obviously something for which I was criticized and could be criticized.

Mr. Lane:
Which brings me to interrupt and remark that I saw you quoted somewhere as saying in this general broad context, "Around our house is the saying the a conflict of interest is better than no interest at all".

Justice Brennan:
That's right. I used that. I also used the line, "Nepotism is better than having unemployed relatives", but part of that was a certain bravado, when you're getting buffeted about by the newspapers, to, you know, laugh it off, because there isn't anything you can do about it when you're criticized in the press. Somebody said you can't fight a newspaper unless you own a newspaper and then you can fight back.


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Mr. Lane:
I think you had probably been criticized in newspapers sometime before this.

Justice Brennan:
Oh, sure. I had been many times, many times with considerable impact, but nevertheless, that was a pretty serious blow in the sense that my board began getting nervous. My board began getting nervous and one of the things, I mean, people with reputations. We went after people who had reputations and public posture and so on, and even those who weren't public people, one of the reasons they were on the board was because it was such an honor to stand alongside Justice Brennan, you know. "I'm on the board with Justice Brennan. I know him by his own first name. We drink together". I mean, there is this element of importance by association. Well, if this person, this important person with whom you're associated suddenly starts getting bad press, you want to start putting some distance between yourself and him real quick, and that began to kind of surface a little bit. "Isn't there some way you can kill all this bad press?" I began to think in terms of I had to do something to resolve this thing. Well, at that point, I was running the law school, and we began to think if we could get another dean for the law school, so that...

Mr. Lane:
Did you then have the title "dean"?

Justice Brennan:
Yes, I was the dean or acting dean. I think it was dean.

Mr. Lane:
Were you salaried as a dean?

Justice Brennan:
No, I received. As I said, the only thing I was getting was $10,000 in expenses, so we began to look around for somebody that we could put in as a dean. We had hired a man as one of the first full-time professors at the law school who had an extensive history of publication and legal books and so forth and a fairly well known name in legal circles by the name of Roger Needham, and I didn't know him all that well. I knew he had been practicing law in a small office and was quite eager to take on a teaching position with a regular salary, and so I concluded that the best quick fix was to appoint him as dean, and then I could be Chairman of the Board, and I could back down and just be a figure in the background and take some of the heat off the law school. I, in fact, asked him if he would do it, and he said yes, and the board all agreed, and we were ready to take that action, at our meeting, I believe, in September of that year, which would have probably been about the middle of September. I'm still talking now in August, early in August. About the third week in August or second week of August, I took my son, John back to the seminary outside of Columbus, Ohio. He was in the high school seminary there, and on the way down, we stopped at a little restaurant, a Country Kitchen restaurant which was kind of a cutesy place...Dutch Kitchen, I guess it was called, a cutesy place with the cutesy little accoutrements and decorations, but when we got in there, the floors were dirty, the service was bad, the food was cold. It was just a poorly run operation and we got back in the car and we were on the road for about 50 miles and finally I turned to my wife and we had talked about how awful this restaurant was and I said, "You know, there's an example of somebody with a good idea and establishes a successful restaurant, and then they try to franchise it and go national, and they don't have the same kind of management at the branches that they do at the home office, and the thing falls apart". And then I'm thinking and thinking silently, and then finally I break the silence again and I said, "You know, that's what I'm afraid is going to happen to the law school, that they're won't be somebody there who knows how to run it the way I foresee it being run and it will fail. I think my duty is clear.

Justice Brennan:
I am going to leave the Court and run the law school". She was a little concerned about it since I still had a year to go on my term and probably a pretty certain re-election as a justice of the Court, so it would be a long-term safe job that I would be giving up to throw in with a neophyte institution. Anyway, then...and you know the story from there. We called a press conference when we got back, late in August, and announced...

Mr. Lane:
Is it that early in the year, August?

Justice Brennan:
In August, yes, that I was going to leave the Court at the end of the year. I wasn't leaving the Court then, but I was going to leave the Court at the end of the year and January 1st, I would become the full time dean of the law school.

Mr. Lane:
I remember vividly how you had those tables set up and ...

Justice Brennan:
And the whole family there...


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Mr. Lane:
Yes, and played the kids in all dressed up, just had a bath, and I need to bring something up here, though. You remember how we started the recital of this whole chapter of the school and how it began. Now, you, at no point yet, really expressed in clear, firm terms the truly serious concept that you were...to my view anyway, that you came to have or that underlaid the whole business. You remember how at the start somebody called you up and "What the hell, I'll start a law school of my own".

Justice Brennan:
It sounds kind of flip, doesn't it. It sounds almost cavalier.

Mr. Lane:
Well, it sounded like a snappy comeback, like you really didn't...

Justice Brennan:
Well, a couple of things you have to understand: 1) I had wanted to teach law when I left law school. I wrote to the University of Chicago about getting a job down there, and they didn't take me seriously. I had taught at the University of Detroit, not in the law school, but in the undergraduate school, and I taught a course called the "American Constitution", and I enjoyed teaching, and really, as I said, my concept as I began to flush it out in early 1971 was not to have a great big full blown law school but really to have a little evening part-time, makeshift operation which would be, you know, a few students sitting at the feet of Socrates. Here, you're going to have some justices of the Supreme Court who were going to have a very one-on-one or one-on-five or one-on-twelve relationship with some people who wanted to study law, and frankly, I thought that was great. It was very practically oriented. They were talking to people who were in the real world of judging and practicing law and so on and they were passing the torch of knowledge to the next generation in a very practical sort of setting.

Mr. Lane:
There came to be, though, as the events unfolded, some dialogue that you had, as I recall, with St. Antoine wherein the word "elitist" figured very prominently and you were going to start a school for, as I recall your phrase, juryman lawyers, the guy that could go up about the storefront in Ironwood and carry on a law practice, if that was the way the cards fell.

Justice Brennan:
Precisely so, and I mean...but the articulation of the dream, the articulation of the mission of the school was really left for the time that be began to develop this prospectus because that was one of things they asked, "What is your mission?". Well, I said, "Isn't it enough of a mission to have a law school, a real law school?". I mean, I went to law school. Nobody told me what the mission of the law school was other than to educate people to become lawyers. Does it need more of a definition of mission than that? How much do you have to say about it? As time rolled around, the concept that it was a populist law school, that it was a law school dedicated to practical scholarship in the law; those things became the articulation of a mission which really was sort of unspoken at the outset. It was more a reflection of the kinds of people we got involved, and what their attitude about learning and education was, more that than any stated mission on which everyone signed off and said, "Yes, I agree with that statement of the purpose and that I will do". Our purposes under the corporate charter were simply to operate a law school, to be fully accredited and those kinds of words. We didn't talk about it as being populace as opposed to elitist or whatever else, and I suppose...not I suppose, I can tell you flat out, there have been people come to Cooley Law School who are as elitist as anyone in the world. I mean, we don't run a personality check on these folks, and we don't ask them whether they agree with our philosophy about whether you are a populist vs. an elitist. We had one guy in here...oh, he was maybe somewhat populist, but he was a member of the Mensa Society, okay, so he was intellectual with this big brain power, whatever kind of numbers you have to blow on the IQ to be a member of the Mensa Society, and he was one of our students. He sent me a letter. He wanted to get involved in the credit union here, wanted to be on the Board of Directors on the credit union. He gave me his background which was good. He had been a banker before he came to law school and so on, but he mentions in there that he was a former member of the Mensa Society, so when I interviewed him, I said, "Well, Brian, I see here you're a former member of the Mensa Society. What happened? Did you get dumber? Did you lose your ability..."

Mr. Lane:
Flunk out?


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Justice Brennan:
Yes, "Did you flunk out? That's hard to do." He laughed and he said, "No, as a matter of fact, I sort of gave up on those people. They're all either psychiatrists or cab drivers", so it was a curious way. No, I...the philosophy as we developed it really was, first of all a reflection of how those of us who were involved in the law school felt about legal education and it was a philosophy that grew out of the response that we had from different people. I mean, the people themselves who came here began to define the institution, and our definition of the institution drew from the people who were here, the Roger Lanes, the old Detroit newspaper, Free Press guy who goes to law school in his senior years, the gal, Jacqueline...I can't think of her last name...Jackie...one of the very first classes...lived across the street from Wayne State University's Law School, and came up here on the Greyhound Bus every day, one and a half up and one and a half back. She couldn't get into Wayne State University Law School, but this place gave her a chance to go to law school, and she was a good student, and she has done well, but basically what we were doing was to offer people a chance to go to law school who couldn't otherwise go. The reasons they couldn't otherwise go were myriad, because they were stuck in Lansing and couldn't commute all the way to Detroit was one of the main reasons in the early times. We had a lot of people with high academic credentials who were just here in Lansing and always wanted to go to law school. We also had people who had applied to every law school in the state or around the midwest who couldn't get in and came to us, and were capable of doing the work.

Mr. Lane:
Excuse me for interrupting, but did you become very acutely aware and disapproving of the practice that particularly at the University of Michigan Law School, where I think you recited some figures not so long ago where if there are three or four hundred slots for new students, there are thousands of applicants and those applicants are screened pretty much in quite a rigid way in terms of their scores on the aptitude test, or do I have it not quite right? Do you see what I mean?

Justice Brennan:
No, I think there's no question that you have it right that that's what they do.

Mr. Lane:
And so here's a person of great merit. Let's take a minority guy that was sort of held back for a while and he's bursting out into the clear in an intellectual way and he wants to go. He can't hit 800 or whatever the heck it is on that test, therefore, he is shut out. My example might not be too good, but what do you have to say about that?

Justice Brennan:
Well, your example is a good one because it is not just the University of Michigan, although the University of Michigan is a top school in the country. When they name the top law school in America, University of Michigan is generally among the top ten that are mentioned. How do you get to be top? Well, the definition of a law school generally comes from three things: your physical plant which includes library, buildings and computers and whatever else you have that is impressive, you know. That's sort of the least important prestige factor, but that is a factor. Your faculty which is in some circles regarded as a very important prestige factor. Do you have faculty who are well-known, who are well- regarded, who are the man who wrote the book type of thing. Are they being tapped all the time by Washington to go down there and be advisors and take leave of absence from your faculty to be the head honcho or whatever. Are they being drawn from former clerks of the United States Supreme Court and all that stuff, and that's probably a secondary though very important basis on which "prestige" of law schools is established, but in the law school world, to the extent that there is a pecking order of better schools, the key factor is always what are your LSAT scores.

Mr. Lane:
Is that true, still true?

Justice Brennan:
Yes, absolutely. Absolutely. As a matter of fact, the operative buzz word in educational circles is how selective are you. They don't use the word "elitist", how selective are you, and a more selective school is the harder school to get into. If a school is impossible to get into, it's a wonderful school. You know, the less chance you have of getting educated at that institution, the better that institution must be, the less chance you have of getting into is. So only the top students, only the most brilliant students, only those who least need to be taught anything are admitted to your institution. That makes you the finest educational institution in the world. Now, I don't understand that. It's like having a hospital that only takes the healthiest people. This is a wonderful hospital because nobody ever dies in it and nobody ever dies in it because nobody ever comes there who is sick. Everybody who goes there are people who are in wonderful good health and say, "I go to Mayo Clinic", but then, of course, I had to pass many physicals locally before I ever got to Mayo Clinic because they had to know that I was perfectly clear before I ever got there. I mean, that, to me, is a ludicrous measure, but it is the standard measure of excellence in educational institutions. How smart are your kids? How smart are your kids? If they're the smartest kids in the world, then you've got the best school. Now, given that, the schools, for whatever reason, I suppose for a combination of things, all aspire to be that, to be the best by that definition and therefore, what you do when you go to fill your class, you rank all of your applicants according to the academic criteria, which in this case in the LSAT score or some combination of LSAT and undergraduate grade point average, typically, that's what you're going to do creating an index score. You rank them according to that index, and then you go down the index as far as you have to go to fill up your class.


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Mr. Lane:
Maybe in the case of the University of Michigan, 11% of the way or something like that?

Justice Brennan:
It's never any further than that. In the case of the University of Michigan, let's take on LSAT scores which now are between 10 and 49, they won't take anybody less than a 40 and probably they're only just reaching down to get maybe the last few people to get a 41 or a 40. Everybody else is above that probably. Now, that's great, but one of the things that happens when you do that is you almost certainly assure that your entire class is going to be Caucasian or Oriental. I mean, there aren't going to be many Blacks in that class or very few by the numbers. There are going to be very few ethnic Italians, the children of the artisans, the children of the police officers, the people who are the first college graduate in their family, the Poles, the Lithuanians, people who are second or third generation here in the country. You're going to have a lot of Jewish people, a lot of them because they're going to be at the top of the list, so that's the kind of student body you're going to have.

Mr. Lane:
You're aware of all of this very keenly, and you were...

Justice Brennan:
I've been in this business for 20 years. I've seen it. I've read, you know...I've studied. I've seen statistics and what I'm giving you is just the assimilation of a lifetime of doing and being involved in this business, and maybe I'm just spitting out a lot of prejudices that I've developed through the years, but I think the statistics would bear out what I'm trying to tell you, so the problem, then, is that if all you're going to do is go down so far in the barrel, you're going to have a selective student body. It is not going to be a diverse student body. It's going to self-select according to these standards. So, now what are you going to do? You've got to have minorities because you're denying the opportunity for education to minorities so what do they do? They dip down into the barrel for only particular people. They're going to run down from an index of 80 to an index to 40 or 50 and it's only going to be for a Black guy. It's only going to be for a Hispanic. It's not going to be for a white guy. Now, what's happening here? You take some kid whose academic credentials don't hold up to the rest of the class, and you bring him in because he was an Eagle Scout and because he worked hard and because he was an athlete or whatever else, he showed leadership...you fuzz it all over with all of these artificial criteria that are not the criteria that you would normally use to select people, but you build a case that this person is acceptable because of all these special things, and then you bring him in. Now, he's not going to do well in school. He can't keep up, so you don't want to flunk him out because now you're only flunking out the Black kids and now your academic attrition becomes discriminatory because it's always the black kids that flunk out, so you get him a tutor. Now the Black kid comes and he sits in the dean's office and he carries a sign, and he says, "It's unfair. You make me go to tutorial classes. Nobody else has to go to tutorial classes. It's racially discriminatory that I have to go to the tutorial classes", so now you don't make him go to tutorial classes, but you don't want to flunk him, so you give him a little extra consideration on the examination. You'll let him write an extra paper. You'll let him have whatever else, you get subjective about your grading system. Now, you end up giving two kinds of diplomas on the stage at graduation, the regular diplomas which have been earned according to the standards of the school, academic standard, and the special diplomas that are being awarded to those special students that you've given a special admission and a special academic standard to as they go through school. So now, what have you got? You've got a graduate out there and everybody knows there are two kinds of diplomas. The trick is can you guess which one, which kind of a diploma this graduate of the University of Michigan who is applying for a job at your law firm, which kind of a diploma does he have, first-class or second-class? You've got only one thing to go on, the color of his skin, and that's the guess you make. This guy probably isn't as well educated as that guy because this guy has a black skin. So you perpetuate prejudice. You perpetuated discrimination and you have demeaned this individual who could easily have gone to a school with white kids who had a 50 index or a 51 index who were no smarter than he was, who would have participated in the class. He would have fought for grades and competed for grades against those other kids. He would have gotten a first class diploma, and he would have gone out and been able to do with it just like the other kid next to him. My argument is that the elitist system has created more problems that it has solved, and the problem as far as I'm concerned is the elitist system. It's the idea that educational institutions are only for the top selected people. Now, I suppose Harvard, the University of Chicago, the private schools, if they want to start a private school and only educate the Mensa Society, that's their business. It's private dollars, private time and energy - let them do it, but certainly public schools shouldn't do it, and certainly there ought to be some private schools like Cooley whose mission it is to have an open door and to teach everybody who wants to come, everybody who has got any reasonable chance of getting through. Anyway, this is not history...


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Mr. Lane:
The last thing, the last couple of sentences, though, are the affirmative statement of what you are doing with respect to Cooley against this background of what was happening elsewhere, and you, in effect, if I understand it just in a summary fashion, opened the doors, give these birds a chance that were not in the top 11% when they applied at the University of Michigan, and they're good solid law school material.

Justice Brennan:
...were journeymen, yeoman, whatever you want to call it. It is interesting, though, among the people we get who come in here, maybe without the top credentials, are people who do very, very well in law school, who pass the Bar examination on the first shot. You know, in the history of Cooley Law School, anybody who graduates from around here with a "B" average or better has like a 99.9% chance of passing the Bar examination on the first try.

Mr. Lane:
A "B" average is something to get, though, in your school.

Justice Brennan:
Okay, but that's likely that they didn't have a "B" average in undergraduate school, so what makes them think they're going to have a "B" average in law school. It's harder than undergraduate. But, here's the story I want to tell you about the elitist. I wrote a letter to Chief Justice Berger when he was Chief Justice and I said, "Mr. Chief Justice, you ought to have a national competitive examination for U.S. Supreme Court clerkships and have everybody have a chance to be a clerk in the Supreme Court, and if they do well on the examination, fine, then give them an interview, and it's an honor just to be on the list". So he writes me back and he says, "Well, I've always selected my law clerks by having a committee of my former law clerks do the screening and give me...". Well, naturally, they were getting people from their own colleges and their own law schools. I then contacted this man who was the PR man for the Supreme Court, and I said, "In the last so many years, how many clerks have you had? What schools did they go to?", and he gave me the last 15 or 20 years, and 75% of the clerks in the United States Supreme Court came from eight law schools. I wrote back to the Chief Justice, and said, "I'm sorry to bother you, Mr. Chief Justice, but these are the statistics your own people give me that 75% of the clerks came from eight law schools. It cannot be that eight out of 175 law schools in America are educating 75% of the top legal quality, and the Court is being denied the services of these top people because of the system of selection that you have, so I urge you to consider the competitive examination", and blah, blah, blah.

Mr. Lane:
Did you get a response?

Justice Brennan:
Two months, it took him, or three months to answer to me, and he finally came back with some double talk which said he was going to appoint a committee and even though it wasn't probably completely fair and logical, it was still traditional, and they were going to continue to do things the way they had done.

(End of side 1, tape 7)


Topic 10: Justice Brennan talks about case regarding the apportionment of the legislature in the 1970s, having his portrait presented to the Supreme Court in 1980, and his activities since leaving the court in 1973


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Mr. Lane:
Now, we're going to another side. This is side B of tape 7, Justice Thomas E. Brennan and Roger Lane with him in his office, and today is February 14, 1991, and we're nearing the end of the audio taping of Judge Brennan. How about apportionment. We haven't had anything to do with apportionment yet.

Justice Brennan:
Okay, I just got the case out, Roger, to sort of refresh my recollection, and the case I participated in is in 387Mich442. It was In Re the apportionment of the legislature. To set the scene, the situation was that the constitution of the state of Michigan established an eight member apportionment commission consisting of four Democrats and four Republicans. I'm not sure whether they were chosen by their respective parties or whether they were nominated by the governor...

Mr. Lane:
By the parties.

Justice Brennan:
By the parties? Well, in any case, they represented the two parties, two major political parties, and their job was to come up with a new map of the state of Michigan showing the senatorial and legislative districts for the state of Michigan. Every ten years when the census was taken, the commission met and every ten years, the commission managed to stalemate predictably because of the split between four Republicans and four Democrats in the membership of the commission. They did so in 1972. Under the constitution, if the commission was unable to agree on an apportionment plan, the members of the commission who had drafted proposed apportionment plans would take their plans to the Supreme Court and the Supreme Court, under the constitution, would decide which of those plans most nearly conformed to the constitutional requirements. What happened was that the Republicans and the Democrats both submitted plans to the Michigan Supreme Court. The Republican plan had a smaller ratio of...a small divergence within the population of each of the districts than did the Democratic plan. The way these things were presented, the ratio was spelled out as 1.003 or 1.005 or 1.007:1 so in effect, the largest district would be 3 or 5 or 9:1/10,000 larger than the smallest district or maybe the average. I forget how that was calculated, but it was a very minimal standard. We, the Court, during the course of the pendency of the litigation that came to us under the constitution, allowed the Democratic side of the apportionment commission to amend their plan and submit a new plan which had a still lower ratio of divergence among the population of the districts.

Mr. Lane:
This happened, as I understand correctly, after the formal declaration of deadlock that triggered the Court's role?

Justice Brennan:
Exactly. It happened after the case had already been brought to the Court, and if I am not mistaken, it was some sort of an order allowing or permitting additional time or holding the case in abeyance while this was accomplished. The Democrats then came in with a report that had, in fact, a smaller numerical divergence factor. The Republicans then asked for time to revise their bid, their program downward, I suppose, to see if they couldn't produce something that was even closer to dead even. The Court refused to give the Republicans time to do that. Having then done so, the Court took under consideration the case and heard the arguments of counsel and concluded that our duty as a Court to decide which plan most nearly conformed to the constitution was a very mechanical duty. It was simply to look at the divergence ratios and pick the lowest one.


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Mr. Lane:
What did you call that? I think you had a phrase for that. Doctrine of relative, was it?

Justice Brennan:
Well, I had a phrase for the concept, what I called "new-born" constitutional concept of relative constitutionality because the constitution of 1963 said that the Supreme Court shall chose the plan which most nearly complies with the constitution. The Supreme Court shall determine which plan complies most accurately with the constitutional requirements. That's what the constitution said, and I said in my dissenting opinion that "the constitution seems to contemplate that we apply some new-born standard of relative constitutionality". I went on to say, "I never heard of one law being more constitutional than another. Constitutionality is like pregnancy. Either you is or you ain't". That was the comment about relative constitutionality. But then I went on to say, "Nevertheless, that's our job. That's what the constitution tells the Court to do, so we have to try to do it", and then I conclude, "Well, if you're going to pick the lowest bidder, the lowest population ratio, that's at least an objective standard that every one can understand. It is easy to apply. It will work". I pointed out that it doesn't mean anything. It literally doesn't mean anything because the ratio is so tiny, so minuscule that either the census itself isn't that accurate or even if the census were that accurate, just the normal change in people's residences that would occur in a matter of weeks and certainly months between the taking of the census...we were dealing with the 1970 census and this law suit was in 1972, so two years had gone by. There was no question at all but that the districts as they existed out there in reality on the real estate in the state of Michigan, the people living in those districts were different from the numbers of people who were in the census in 1970, certainly by substantial numbers as opposed to these tiny, tiny fractional differences, so it had no substantive reality to it, but it was still, if you're going to play games, it was a game you could play that would be fair to everybody or it could be fair to everybody. Then I pointed out, "Okay, if what you're going to do is simply let the contract to the lowest bidder, you're going to simply allow the political party that comes in with the lowest population ratio to set the districts, then at least you ought to take sealed bids. You ought to give both sides a chance to give it their best shot and go from there". I suggested that if, in fact, they both came out with a perfect plan so that there was a ratio of 1:1, dead even, then you would then refer to the number of political units of government that were divided in the apportionment plan and use that factor to break the tie. What I was looking for, quite frankly, was a way for the Court to be an impartial arbitrar between the two divergent forces on that commission and simply to set some rules that applied to both of them that we could enforce impartially that would help them to get their job done and function on behalf of the people in the state of Michigan. Subsequent to that decision and in years since then, I developed a rather intricate...not really intricate but comprehensive approach to the apportionment problem which built on what I said in my dissenting opinion. In other words, instead of a process whereby both parties would make a complete apportionment plan and then submit them in sealed bids, I had come up with an idea that a legislative districting map could be drawn seriadim in an adversary proceeding so that you...like you play a chess game...you could have one party draw the first district, then the other party draw the next district, and pass the map back and forth between the two parties with certain time limits like you would in an international chess match, and certain parameters of legality that would be established by the Court. In other words, the Court could say that the ratio shall not be more than 1:1.009 or 1.006 or whatever you wanted to do, and that the district must be contiguous to the district already on the map, or that the district cannot leave an island that is surrounded, all various little rules that you would develop. You could even have a gerrymander rule that would prohibit a district from being too long or skinny or whatever, and ultimately achieve a map which was drawn through the adversary process where the Court's function would be to be the honest cop between the two political parties. That never caught on, and I'll tell you why, I think, in my judgment. The drive for political power and the desire to control the machinery of government is so intense and overpowering that it sweeps almost all attempts to be non-partisan out of the way. You just don't have Republicans or Democrats who want to have a fair system of apportionment. Active Republicans want the state apportioned to benefit the Republicans and active Democrats want the state apportioned to benefit the Democrats. You can talk until you're blue in the face trying to get them to come together on a system which is fair to both. They don't want fairness. They want to win, and unfortunately, that win mentality infects the way they feel about the Court, and so they conclude that the Court's role as the arbitrar or the ultimate authority in the area of apportionment, their conclusion was that the Court was thrust into the Republican vs. Democrat milieu and they went out and elected people, nominated people to run for the Supreme Court and they gave money to assist people to get elected to the Supreme Court on the basis that they wanted to have votes on the Supreme Court when it came to apportionment because that decision would establish control of the legislature for the next ten years, and you saw the Democratic nominated members of the Court vote for the Democratic plan, not only vote for the Democratic plan but in my judgment, prostitute themselves by giving the Democrats one last chance to revise their plan before they heard the case. The Republicans weren't a whole lot better in terms of their chauvinism because the sequel to this case I cited in 387Mich was that the Republicans, having lost in the State Supreme Court, then went to the Federal Court in Detroit, and I think maybe Jon Feikens got the case but it went to a Federal District Court judge in Detroit, and oh...I'm sorry...I'm getting ahead of myself...before they went to the Federal Court, they came back to our Court with a petition to throw the whole commission out, with a petition to determine that the commission was unconstitutional and you'll remember that that argument ultimately carried the day in the 1980's.


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Mr. Lane:
It had one vote in that book that you've got open in front of you, and that was from T. G. Kavanagh, and he paid dearly for it, remember, four years later.

Justice Brennan:
Well, to a degree, I think, yes, although I don't think that was the real thing that did it.

Mr. Lane:
No, but he did take the position in that case.

Justice Brennan:
Let me just review that for a moment.

Mr. Lane:
...that the commission was unconstitutional.

Justice Brennan:
Yes, he concluded...he said, "We have no proper function at all in this matter..."

Mr. Lane:
That was pretty big heresy.

Justice Brennan:
But he quoted Justice Souris who said in the 1964 case, "Having concluded that the apportionment and districting provisions for both the Senate and the House were violative of the 14th amendment, it was my conclusion that Section 6, Article IV which established the commission, likewise had to be held void. Section 6 in my view is so dependent upon the continuing validity of the preceding sections by which the commission's duties were specified and expressly limited that it could not survive alone", so Souris had written in the 1964 case that the commission should be thrown out. T.G. Kavanagh agreed with him in 1972, so that opinion had been expressed at least on a couple of different occasions and ultimately, as I say, carried the day, but after this decision was expressed and...now, let's just flip back through the opinion for a half a moment and see where we were...after that opinion was expressed...we're talking May of 1972,...let's see...T.M. Kavanagh, as Chief Justice had written the majority opinion. Adams, Swainson and Williams concurred, so he had four votes. Okay...the Republicans came in after this case and wanted a re-hearing and wanted it on the basis that the commission should be thrown out. I don't know who they thought was going to change his mind unless they felt that if it got to be 3:4 that somebody would, I don't know.

Mr. Lane:
Adams was a short-timer, then, wasn't he? He only had a few months to go in his term...

Justice Brennan:
Yes. He had the rest of the year. It was May, so he had the rest of that year. But in any case, they came back and they wanted the re-hearing and they wanted to get it on the basis that the commission ought to be thrown out. I voted to deny the re- hearing.

Mr. Lane:
You paid for that, didn't you? Didn't you...weren't you, when you ran subsequently in the primary...

Justice Brennan:
For the United States Senate in 1976...

Mr. Lane:
Weren't you denounced by some of your...?

Justice Brennan:
I was denounced, among others, by a man by the name of Keith Molin who was a functionary of Governor Milliken and it was the first time it had ever dawned on me that there were people in the Republican party who thought I had done something bad by voting my conscience and my view of the law in a case, and I was pretty naive, I guess, not to realize that as far as the politicians were concerned, there is no such thing as judicial decisions. There are only favorable and unfavorable decisions as far as their interests are concerned.

Mr. Lane:
Specifically in this subject area, right?

Justice Brennan:
Oh, yes, and this thing...this was not even regarded as a judicial matter. This was, you know, who are you and where are you coming from? So, that speck ogre was raised and talked about. I don't know that it made any difference...when you say I paid for it, I don't know that it made any difference in terms of support I got from the Republicans. It might have. That's very possible, I suppose, but in any case, I made the decision that I did. They later went to the Federal District Court, and the feds also denied their petition.


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Mr. Lane:
Was it a split vote? Do you remember? Three judge court, 2:1?

Justice Brennan:
Out of Detroit? Yes, they must have gone to Cincinnati, and it may have been a split vote down there.

Mr. Lane:
I think Ted Swift handled that, didn't he? I seem to remember something about that.

Justice Brennan:
It's possible. I don't know whether he was...but anyway, that's the story with apportionment. It's never a pleasant bit of business because it is so political and it always leaves scars in terms of the Court and the relationship among the justices and so forth. Yes, I see that the Foster Swift firm represented some of the commissioners. It doesn't say Ted Swift...Peter F. McNenly was counsel on the record, anyway, in the arguments in our Court. Anyway, that was that. What else?

Mr. Lane:
Well, just one last word on apportionment. Now, in 1982...this is getting beyond your...

Justice Brennan:
Can we turn it off just for a...

(interruption in taping)

Mr. Lane:
Well, I'm going to withdraw the suggestion about the 1982 aspects or the 1992 of apportionment...


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Justice Brennan:
Well, in I believe it was July of 1980, a portrait of me was presented to the Michigan Supreme Court, and on that occasion, there were a number of speakers. I've embarrassed the president of the State Bar of Michigan spoke on behalf of the Bar. Lieutenant Governor Brickley spoke on behalf of the State of Michigan, I guess, and brought the greetings of Governor Bill Milliken. My son, Thomas E. Brennan, Jr. spoke on behalf of the family, my family, introduced them and all. Then Judge Richard M. Maher who was then a judge of the Court of Appeals was introduced, and he spoke about the years that he and I were in law practice together with several other people, and then Mike Devine who was my administrative assistant when I was Chief Justice spoke about those years and his recollections of some of the things that we had done and accomplished, and thereafter, Louis A. Smith was introduced, and he spoke about the years that I was associated with the Thomas Cooley Law School. Finally, at the conclusion of that, the portrait was unveiled and Justice Ryan commented on behalf of the Court with respect to the portrait and my being there, and finally, I was given an opportunity to say a few words on the record. I made the comment that I had never known of an Irish wake where the corpse got up and spoke, and I also said that "I confess that I was somewhat amused to fancy myself to be the youngest ghost to haunt the bench and Bar". I had been called the youngest Chief Justice in the history of the state and so forth, so I found myself being the youngest ghost to haunt the bench and Bar. I also made the comment that it was particularly flattering to realize that I was the only living former Chief Justice whose picture was being hung in the Court chambers. I had presided at the last session of the Supreme Court in the old Capitol on the third floor, and I also presided as Chief Justice in the first session in the Supreme Court in its present quarters in the law building, so I had, as I mentioned, a special affinity for that place. I concluded my comments with a paragraph that I have read and re-read a number of times and thought so often how well it expresses by feelings about my own life. You have to remember that I was 31 when I was elected to the Common Pleas Court. I was 33 when I was appointed to the Circuit Court. I was 37 when I was elected to the Supreme Court, 39 when I was made Chief Justice, and, well, only 43, I guess or 44 when I resigned from the Court to start the law school, and when I was elected to the Supreme Court at the age of 37, my friend Dick Smith from Bay City called me up the night of the election and he said, "Well, now remember, Tommy, my boy, early ripe, early rot", and I thought about that. But anyway, against that background of having risen to what is, I suppose the top of our profession in this state, Chief Justice of the Supreme Court at the tender age of 39, I said this, "I cannot sit down without a public acknowledgement of my gratitude to almighty God for the life he has given me.


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Justice Brennan:
To have lived in the United States of America in the middle of the 20th century, of all nations and of all times, the most hospitable to freedom, progress and human happiness, to have been born and to have resided in the state of Michigan, of all places on this earth, the most beautiful and bountiful, inhabited by good and decent people, alive with activity and beaming with hope and opportunity, to have been blessed with loving parents, a devoted wife and children, caring teachers, stimulating colleagues, trusted counselors and loyal friends, to have been privileged to read the law, that jealous mistress of the intellect which teases the mind with truths half-revealed, logic tempered by experience, and the promise of touching from time to fleeting time the incomprehensible form of justice itself, to have enjoyed the incomparable gift of time in such abundance of event-filled days and hours that I can stand here today, listening to the echo of my own footsteps. These unearned blessings have come at the hand of a generous Creator, not through any merit of mine but through his grace and to suit his purpose, which it shall ever be my goal to serve as best I can". You know, I think sometimes as I re-read that, and try to give it the feeling, the sense of involvement that I had at the time I wrote it, that it would do me well to read that every day. It would do me well to remind myself of how blessed I am and how happy I ought to be, content I ought to be, but it is funny. I've gone on to do a lot of different things, started the law school. I have been busy here now for 17 - 18 years. In the process, I had lots of flirtations with different things. I was involved with a committee for constitutional reform, and I chased that butterfly for a while. I ran for the United States Senate. I ran for Lieutenant Governor which was the craziest thing I ever did, after having achieved what I had achieved, to kind of go back...I might as well have run for dog catcher if you think about it, but I've, in the last few years, gotten involved in computers, of all crazy things, and have learned a lot about the whole business of electronic communication and what those machines are capable of doing. One of the things I did with the computer just as sort of fun was I created a little program which I call mood check and the mood check is a thing that I did at first just sort of to tease my wife a little bit, but I listed a whole bunch of words, every one having either a positive or negative connotation, and I tried to set them in pairs, so I had on and off, up and down, in and out, happy and unhappy, fat and thin, pressured and relaxed...all of these different words, and then I scattered them so that the opposites did not pair up as you saw the list, and then I created this program which asks the reader and operator of the computer to punch a key representing 0 - 9 as you feel that word describes your mood at the moment, so if you see the word "unhappy" and unhappy describes exactly the way you feel, you give it a 9. If it doesn't describe the way you feel at all, you give it a 0. If you're a little unhappy, you might give it a 2 or a 3. If you're not very unhappy at all, you might give it a 7 or 8, and just do it quickly and sort of responsively as these words flash on the screen, and then I have a calculation built into the computer program which will take all of your positive responses and divide them into the difference between your positive responses and your negative responses so that if every response you make is a positive response... let's say you have...and it doesn't make any difference whether you score it 3 or 9, what really matters is whether...is the ratio of the difference to the total, so if, for example, your positive points total 180 and the difference between your negative points and your positive points is also 180, so you gave a 0 to every negative word, you would get 100%, so you're feeling, your mood is 100%. You couldn't feel better. You feel great.

Mr. Lane:
Top of the world.


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Justice Brennan:
Top of the world, but every time you shade it, every time you say you're a little unhappy or a little this or a little that, it comes down. I have run this thing with some of our employees around the school here. I've run it with members of my family, and it is fascinating to see what kind of numbers people get. The happiest people, the most positive, get the job done, do it cheerfully, agreeable, etc. sort of folks, my secretary is one for example, had a 93% or 91%. Stephanie Greg, our Director of Admissions who is a very positive, very warm, outgoing person which was one of the things that we wanted in the Admissions Office, somebody who made an excellent, friendly impression on people...she got a 93%. My daughter-in-law, 91% or 92%, Tom's wife. She is one of these bubbly people, always get the job done, can do, never too busy to run an errand for you or do whatever you ask her to do and so forth. On the other hand, some people who work here have gotten some very unhappy scores. There is a lady here whose husband is in prison, who has an elderly invalid mother living with her, dependent upon her, teenager daughter who is pregnant, a teenage son who is kind of unemployed and so forth and dependent on her. She is deeply in debt, etc. She took the test, and did so poorly on it that she didn't even leave it on the machine. She took it off the computer. Reputedly, I heard from other people because this wasn't an exercise that the employees were required to do. We were just sort of doing it for fun, but I heard from other people that her score was a -25%, so she really was unhappy, but other people - 59% here, 28% here, and different scores, and as I began to match them up, I said, "Well, yes, some of these folks aren't too happy". My score, and it doesn't seem to make any difference what my mood is or how I try to fool the machine, if I get into it and I take the thing with any sort of integrity at all, my score will invariably be between 65% and 70%. I am about 2/3's happy. Even today, I am about 2/3's happy, and I look at the other people around the office and in the family who score about as I do, and my sense of it is that there's a little antsiness, fidgetiness about us, that there is more to be done...there is something going on. Sometimes I'll be driving with my wife and tapping my hands on the steering wheel of the car, and she says, "Can't you just relax? Calm down", because my mind is going a million miles an hour and I'm thinking...I'm a person who doesn't sleep very well. Like last night, I was probably awake off and on two or three hours during the course of an eight hour period in bed, but I'll wake and sleep fitfully and then I will be thinking of things during the night, sometimes get up and write speeches or letters during the night or make "do" lists for the next day, things that I want to do to remind myself, and when I see a list of words and I see the word "unsatisfied", I know that unsatisfied is a negative word. I put it in there as a negative word. You're not supposed to be unsatisfied. You're supposed to be satisfied. If you're happy, you're satisfied. If you're unhappy, you're unsatisfied. Every time I see that word, I say to myself, "Yes, I'm unsatisfied about a lot of things, and I don't think that's so bad to be unsatisfied. I'm going to give myself a 4 or a 6, you know". I think the sense of being incomplete, unfinished, sort of antsy...there is work to be done, there is something to be accomplished, not a bad sense, and really in terms of real human happiness, I think it probably is an important factor. You know, without backing away from one whit or comma of what I said to the Court in 1980, that I am thankful to the Lord for all of the blessings I've had, and I think one of the blessings is to be a little unsatisfied

Mr. Lane:
This marks the end of the Brennan tapes, particularly tape 7B.

APPENDIX
Editor's Note: The dialogues entitled "Interview with Thomas Brennan, October 3, 1990," are appended to Volume 2 of the Historical Society transcripts, mainly for their content relating to the Thomas M. Cooley Law School. The founding and development of this institution by Brennan immediately followed his service on the Michigan Supreme Court and established Brennan as an authority in legal education, and the interview material thus is considered pertinent to his judicial service. By the state constitution and statutes, the Supreme Court, through the State Board of Law Examiners and other agencies, oversees training and discipline of the legal profession in Michigan. A predecessor of Brennan, the late Justice Leland W. Carr, had operated an informal law training program for attorneys while an Ingham County Circuit Court in Lansing. It is even considered noteworthy that former Justice Brennan, as a legal educator, finds significant influence on national economic policy resulting from the Federal government role in encouraging debt financing of professional training for lawyers.

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