Tuesday, October 12, 2010

Getting to FIve: New Book about Justice Brennan

The New York Times ran a book review of a book just released about Justice William Brennan, titled "Justice Brennan: Liberal Champion". The book, authored by Seth Stern and Stephen Wermiel, details the life behind the scenes of "getting to five", an expression the Justice used to explain the process of getting enough votes for some critical decisions. The authors were permitted hours of chambers interviews with Justice Brennan, who passed away in 1997, and granted exclusive access to tens of thousands of pages of materials in preparation for the book. An except from the review (full article here):
The burning question has always been whether Brennan’s influence on the Warren court — which engendered a revolution that has yet to be fully reversed all these years later — was as dramatic and outsized as we’ve been led to believe. In “The Brethren,” Bob Woodward and Scott Armstrong described Brennan glad-handing and horse-trading his way to one victory after another, a depiction Brennan resented for portraying him as the archetypal “Irish ward boss.”

In the decades since, Brennan has come to be seen as an epic strategist and deal-maker who coordinated many of the Warren court’s major decisions behind the scenes. Where this book truly soars is in its account of Brennan’s skills at — as he always described it to his clerks — getting to five: finding a way to string together five fractious votes for some new principle or doctrine, or seeding some future principle or doctrine between the lines. It’s clear from this biography that what Brennan did wasn’t alchemy, even when it wasn’t always perfectly principled. He emerges as so carefully attuned to the concerns and passions of his colleagues that he was able, time after time, to draft opinions, or help them draft opinions, in ways that could achieve five votes.

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