Friday, May 14, 2021
A recent exchange on Twitter provides another fitting occasion to re-up this illuminating exposition of Justice William Brennan's "shadow theology" from a few decades ago: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Pa. L. Rev. 1049 (1992).
Friedlander situates Brennan as rejecting classical natural law jurisprudence even while invoking its "spirit":
Justice Brennan offers a distinctive approach to modern constitutional problems. To confront the necessities of the present he dispenses with the positivist tradition and looks further back into history. Rather than resuscitating the classical natural law tradition, he invokes its spirit. This approach creates its own difficult questions. Is any aspect of the law fixed or must all laws bend to conform to the given world? Can the "new jurisprudence" find answers in the social sciences as the old natural law jurisprudence found them in theology and philosophy? There is the new danger that Justice Brennan's jurisprudence masks itself in a tradition that is not its own, and that its principles are merely empty abstractions that hide a deep skepticism about the binding character of law.
Friedlander's exposition is an extended exploration of "a vacuum in [Brennan's] sociology." In particular, Friedlander studies Brennan's "precept of progress in the service of unity." Departing from the classical natural law tradition, Brennan's outlook was shaped by his perception of "the constitutional ideal of libertarian dignity protected through law." This dignity, to be sure, is the dignity of the individual, not one that reflects a classical natural law conception of the common good.
Friedlander notes Brennan's regular reliance on a 1964 ABA committee report: Miriam T. Rooney, Report of Committee on Comparative Jurisprudence and Legal Philosophy, 1964 A.B.A. Sec. Int'l & Comp. L. 195. In describing his own judicial outlook, Brennan ambiguously situates the "new jurisprudence" discussed in this 1964 report vis-a-vis "the philosophy of St. Thomas Aquinas." Here's Friedlander:
Justice Brennan confronts three distinct jurisprudential problems: a changing society, the legacy of positivism, and the inadequacy of positivist jurisprudence when confronted by social change. He is both attracted to and repelled by the model of law prior to the nineteenth century, when natural law theory was dominant. At that time "law was merged, perhaps too thoroughly, with the other disciplines and sources of human value." "Custom," says Justice Brennan, "was the cherished source of the common law."
Justice Brennan does not specify why custom is an inadequate grounding for law today. Is it because discontinuities in legal theorizing have left us with a legal inheritance in which precedent is uninformed by the value of custom, or because a changing society cannot rely upon custom even if it were contained in our constitutional law? Justice Brennan suggests the latter: "Just as we have learned that what our constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time; similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time."
Seeking wisdom and dismissing custom, Justice Brennan is not without other "sources of human value" upon which to draw. In both speeches, he quotes approvingly from a bar association report that traces the historical development of legal thought from positivism to sociological jurisprudence to the "New Realism" school and, finally, to a "new jurisprudence," which "[i]n a scientific age... asks, in effect, what is the nature of man, and what is the nature of the universe with which he is confronted .... Why is a human being important; what gives him dignity; what limits his freedom to do whatever he likes; what are his essential needs; whence comes his sense of injustice?"
Most interesting about this interrogative mode of jurisprudence is Justice Brennan's reaction to it. In two sentences remarkable in their tentativeness, he notes, "[p]erhaps some of you may detect, as I think I do, a return to the philosophy of St. Thomas Aquinas in the new jurisprudence. Call it a resurgence, if you will, of concepts of natural law-but no matter." This "new jurisprudence," like that of St. Thomas, is also in agreement with the Aristotelian and Platonic traditions.' In its concern for "seeing things whole ... [it] draws its validity from its position in the entire scheme of things." The answers to the posited questions are not discussed by Justice Brennan. The bar report from which Justice Brennan quotes does continue, however. It discusses two books based on a "Document... of the Holy Office ... , which underlines 'among the possible areas of harmonious cooperation with non-Catholic Christians, the joint vindication of ideas based on the natural law and the heritage common to all Christians.' "
Brennan's continued use of this report evidences one way in which important strands in American constitutional law—those represented by Brennan and Scalia, respectively—emerge out of the American Catholic experience of two New Jersey natives as filtered through post-WWII Catholicism and various camps surrounding Vatican II, Humanae Vitae, and so on. through the 60s, 70s, and 80s.
Another New Jersey Catholic perspective at work in the report came from the report's author, Miriam Theresa Rooney. Born in Charlestown and educated at Girls' Latin High School in Boston, Rooney was one of the first women law professors in the United States and the founding Dean of Seton Hall Law School. "An American Catholic original," as a Seton Hall biographical sketch describes Rooney, calls to mind now the first words of the title of Joan Biskupic's biography of Scalia, "American Original." At the time of Rooney's 1964 committee report, Brennan was captaining important Warren Court decisions and Scalia was practicing law in Ohio; Brennan was putting together a coalition for Griswold v. Connecticut while Scalia was starting a family.