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Excerpt: 'Justice Brennan'

Justice Brennan: Liberal Champion

In December 1972 a young attorney named Ann Torregrossa, just a couple years out of Villanova Law School -- and just a few weeks from giving birth -- stood up to argue her first case before the Supreme Court. The novice public interest attorney and her lawyer husband, Joe Torregrossa, represented a group of Philadelphia prisoners seeking a way to vote in the city's mayoral election. The two had alternated argument duty at every step of the appeal. Now, as the case reached the nation's highest court and Torregrossa entered the ninth month of her pregnancy, it was her turn. Torregrossa later stated that she became so nervous as she waited to present her case, she started to have contractions, causing the baby to kick so hard, she could see the front of her maternity dress move up and down.

Brennan looked at the pregnant Torregrossa, not much older than his own daughter, and worried she might go into labor right there in the courtroom. He had by now a well-developed habit of jumping in on behalf of attorneys arguing his side of a case with helpfully leading questions. Here, he tried deflecting another justice's tough query. When Torregrossa answered the next question with ease, Brennan patted the shoulder of one his neighbors on the bench with satisfaction. "He was so in my corner, I can't tell you," recalled Torregrossa, who named her son Brennan in appreciation when he was born in January. Days later, Brennan announced a 9-0 decision in Torregrossa's favor.

Many other women would express their gratitude to Brennan in the years to come, as he authored several landmark gender-equality decisions, beginning the same term as Torregrossa's appearance. Ruth Bader Ginsburg, the attorney who led the legal attack for gender equality and later became a Supreme Court justice herself, would hail Brennan as "the Court's clearest, most constant speaker for women's equality." Nina Totenberg, National Public Radio's Supreme Court reporter, marveled, "When it comes to sex discrimination, well, he 'gets it.'"

Yet, in the early 1970s, another recent female law school graduate had a very different view of Brennan's attitudes toward women, particularly in his own workplace. Alison Grey was one of the top recent graduates from the University of California at Berkeley's Boalt Hall Law School when two Brennan clerks turned professors there, Stephen Barnett and Robert O'Neil, called in late 1970 to tell her they intended to recommend her for a clerkship in Brennan's chambers. The opportunity excited Grey, then working as an associate at a prestigious Washington, D.C., law firm, Covington & Burling, but she asked for a couple of days to think it over.

Although she had been first in her class, Grey had given up on the idea of a Supreme Court clerkship after a professor told her that the faculty would not waste a nomination on a woman. She had already clerked for a Fourth Circuit judge and liked her law firm job. Yet she knew that a coveted Supreme Court clerkship would improve her chances of achieving her ultimate goal of becoming a law professor, a career track few women had penetrated. So she called Barnett back and accepted the nomination. But when one of the professors called Brennan to offer their recommendation, he did not get much beyond saying Grey's first name before Brennan cut him off. "Send me someone else," Brennan said, making it perfectly clear that he meant a male clerk.

A quarter century had passed since Douglas had hired the Court's first female clerk; that was during World War II, when male law students were in scarce supply. Black and Fortas hired the second and third in 1966 and 1968. Brennan showed no inclination at the time to follow his allies' lead. When Yale Law School dean Louis Pollak wrote him in September 1966 to say that he would begin looking for "the appropriate young man (or woman)" as his clerk, Brennan replied, "While I am for equal rights for women, I think my prejudices are still for the male." His refusal to consider women had consequences. At that time, women accounted for less than 4 percent of lawyers overall and 1 percent of federal judges. A Supreme Court clerkship could provide a young woman lawyer rare entrée to the profession's most elite jobs, particularly in academia, where a Court clerkship was then often a prerequisite at top schools. It was just the sort of disparity that angered women joining the burgeoning women's rights movement. A month after Brennan wrote Pollak, the National Organization for Women was launched in Washington, D.C., demanding the government stop discriminating against women in all areas of public life.

Brennan, who was so attuned to the civil rights struggle a decade earlier, seemed slow to grasp the connection between his actions and the feminist movement pushing for equality. By 1970, he could not have avoided newspaper and magazine stories detailing protests by increasingly vocal feminists of his daughter's generation, many disillusioned with the sexism they encountered in both the civil rights and antiwar movements. Behind closed doors, women around the country gathered in small consciousness-raising sessions to discuss their common experience with sexism.

Since Nancy had begun to educate him about women's rising expectations during their car rides home together while she interned in Washington in the summer of 1968, Brennan had slowly begun to come to accept her professional aspirations. By the fall of 1970, when women accounted for 10 percent of law school students, he still had great difficulty accepting the idea of any of these young female attorneys sharing his workplace.

Even Warren, fifteen years his senior, had employed women attorneys in senior positions when he was a district attorney and governor. But Brennan, who turned sixty-four in 1970, had little or no experience working alongside any women other than secretaries. His Newark law firm did not employ any female attorneys during his tenure there. None served alongside him as judges on New Jersey's courts. Brennan had not entirely adjusted to the presence of women acting as advocates at the Court, either, as suggested by his excessive solicitousness of the pregnant Torregrossa. A decade earlier, Brennan and Harlan liked to joke about Beatrice Rosenberg, one of the few female attorneys who argued before the Court. The two justices both viewed Rosenberg, who argued more than thirty cases before the Court, as a gifted litigator and physically unattractive. She also happened to have graduated Barringer High School in Newark with Brennan. After she showed Brennan a copy of their yearbook, Harlan used to tease him about her being his high school sweetheart, the sort of juvenile jokes they did not make about male attorneys who argued before the Court.

Brennan simply felt more comfortable around men. He liked to joke -- sometimes crassly -- with his friends and fellow judges in the private-club atmosphere of Kronheim's liquor distributorship over lunch. In the summer, he found similar all-male camaraderie at the Wharf Rat Club on Nantucket. At the Court, he salted his stories with the occasional profanity. Brennan confided to his clerks over coffee during the 1968-69 term that he worried about having to watch what he said if a woman clerk worked in his chambers. He did not feel he could have the same sort of relaxed rapport with a female clerk or colleague. If a woman ever got nominated to the Court, Brennan predicted, he might have to resign. "It's a strange kind of sexism," his friend Abner Mikva later observed. "He had [women] on such a pedestal he couldn't have their ears sullied by four-letter words." Ironically, this is one thing about which Brennan and Burger agreed entirely. In 1971 Burger warned President Nixon he would resign if a woman was named to the Court.

Excerpted from Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermiel. Copyright 2010 by Seth Stern, Stephen Wermiel. Excerpted by permission of Houghton Mifflin Harcourt Publishing Co.

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Seth Stern and Stephen Wermiel