SCOTUS for law students: Justice William Brennan and Supreme Court avoidance

Even before Justice Brett Kavanaugh replaced Justice Anthony Kennedy this fall, some commentators were suggesting that liberals might want to avoid appealing cases to the increasingly conservative Supreme Court.

“If you are liberal,” wrote Ian Millhiser of the Center for American Progress in 2014, “you should probably try to keep your case away from the justices.”

With the appointment of Kavanaugh and the expectation that the majority will be more conservative, the idea of Supreme Court avoidance may take on even more currency.

Supreme Court avoidance could mean different things. It might mean seeking legislative solutions to issues in lieu of litigation or pursuing rulemaking approaches. In the context of this column, Supreme Court avoidance means turning to state courts and state constitutions to vindicate individual rights instead of relying on federal courts and the Supreme Court.

What kind of currency has this idea had in the past? To answer that question, it is helpful to turn the clock back more than 40 years to a little-noticed speech by the late Justice William J. Brennan Jr., which subsequently became hugely influential when it appeared in the Harvard Law Review.

In May 1976, Brennan was scheduled to be the featured speaker at the annual convention of the New Jersey Bar Association. Brennan hailed from New Jersey and was being honored by his home state bar for his 70th birthday and for the milestone of 20 years on the court. The location of the event was just one of the strange aspects of the occasion. The bar convention was held at the Playboy Great Gorge Resort in Vernon, New Jersey, once a luxury facility and now long since defunct. There was so much partying and there were so many speakers that Saturday night that when Brennan began to deliver his speech, few in the audience were listening. Brennan decided to cut short the talk so that the revelers could continue their festivities.

What the audience missed that night was a call to arms for lawyers to make more use of state court systems and state constitutions to protect civil rights and civil liberties. The reason for this clarion call was that, in Brennan’s view, the Supreme Court was becoming less sympathetic to claims of rights and would grow more reluctant to protect, let alone expand, rights.

When you have a hard time getting the attention of a live audience, it helps to be a Supreme Court justice with law clerks who previously served as editors of the Harvard Law Review. Brennan’s truncated speech appeared in full length some six months later in the January 1977 issue of the Harvard Law Review, entitled “State Constitutions and the Protection of Individual Rights.”

Noting that Supreme Court interpretation of the U.S. Constitution had expanded protection for individual rights in both federal and state courts, Brennan said that “state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution.” He continued, “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”