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Everybody knows the
dice are loaded.
Why should you care? How could the pixyesque son of a New Jersey labor union leader have affected your life? Well, if not for Brennan, you might find much more of your tax money subsidizing the corporate ranching and mining corporations which dominate rural Nevada. Before Brennan's "one man-one vote" decision, each of Nevada's counties had one state senator. The populous counties of Clark and Washoe were outgunned at the legislature by 15 to two.
Brennan made the case for representation by population, a view now ironically deemed too conservative by those who continue to be frozen out by the system. People who object to winner-take-all politics advocate proportional representation, allocating legislative seats according to percentages won at the ballot box by various parties. Should we so evolve, thank Brennan. He personally considered as his greatest work his decisions empowering voters.
Brennan's advocacy for inclusion of the excluded resulted in broadening the rights of the disfavored to seek the help of the courts. He opened courthouse doors to women, the poor, the mentally disabled and the imprisoned. He showed mercy for browns, blacks and gays. Brennan - gasp! - thought they should have equal opportunity and freedom from fear and persecution. Radical ideas to this very day.
In 1973, Brennan narrowly missed placing the Equal Rights Amendment into law. The court was tied four to four. Justice Potter Stewart would not provide the fifth and winning vote because he was sure the ERA would easily win ratification by the individual states. God, was the good justice ever wrong.
Four years later, the gambling-industrial complex killed the ERA in Nevada. I was there the night this state permanently made women second class citizens. Before the vote, I caught juice lobbyists Jim Joyce and Charlie Bell peeking through the senate chamber door, giggling to each other like teenage boys with a view of the girl's locker room. They boastfully predicted the ERA's failure and told me what the exact vote count would be.
After the cleverest use of parliamentary procedure in state history by Sen. Joe Neal (D-N. Las Vegas). Lt. Gov. Bob Rose (D) broke a tie and the ERA passed. Conservative old birds were shocked. The Nevada good ole boys club let equal rights for women slip out. We couldn't allow that in our whorehouse state. Something had to be done, but what?
The late Mr. Joyce, who brought corruption of government to the levels we suffer today, saw a business opportunity. He offered a deal to ultraconservative Mormon Sen. Jim Gibson (D-Henderson). If Joyce could get the Nevada assembly to kill the ERA, would Gibson reverse his position on some pet legislation Joyce's gamblers wanted? Jim Gibson had a reputation for honesty and hard work. but this time he sold out. After all, uppity women were on the move against traditional family values like inferior pay compared to men.
Gibson said yes and in the space of a couple of hours, Joyce turned the entire assembly Democratic leadership against the ERA. This included Joe Dini (D-Yerington), then in his first term as speaker. In all, eight lawmakers who had long committed to the cause of women's rights reversed themselves when Joyce cashed in his campaign contributions. "Remember the eight who lied" became a rallying cry for women statewide.
Oddly enough, had Justice Brennan made a simple compromise with Justice Stewart, the later Nevada skulduggery would have been unnecessary. Unlike Jim Gibson or Joe Dini, Bill Brennan made deals with no one, and equal rights for women remains an elusive promise of the fading American Dream.
Despite the great dissents and close calls, what a monument William J. Brennan built to these United States. Without the work of Justice Brennan, brilliant civil rights lawyer Terry Keyser-Cooper never could have prevailed for disfavored little people against the cities of Reno and Sparks. Justice Brennan certainly realized what a conservative, rich white guys' society we have been and remain. In many ways, the right wing backlash which began with the 1980 election of Ronald Reagan came in reaction to Brennan, Warren and Thurgood Marshall. The "Warren court" is still vilified for "judicial activism."
Oddly but truly, that description can now just as easily be applied to the justice of whom I'm most ashamed, my retro-paisano Antonino Scalia, and Clarence Thomas, who seems perpetually ashamed of himself. A few years ago, no less than Scalia ordered a survey of the country to see if circumstances had changed. The Constitution bars cruel and unusual punishment and Nino was looking for a way to bring back the death penalty. So, he set his law clerks to the task of checking the country to see how usual executions had become. (Brennan opposed the death penalty under all circumstances.)
I found the entire exercise amusing. Scalia had long said that the original intent of the framers or lawmakers should carry no weight. Just look at the actual words as written, said Nino, conveniently forgetting that definitions change over time. (Look up the origin of "gay" if you don't think so.)
More to the point, the Constitution itself mandated his check of changing circumstance. Unless you review the current practices of the states, how can you determine what's usual or un-? This seems rather clear instruction from the founding fathers that changing times should guide the court, not just reliance on dusty dictionaries. Maybe Nino's reputedly brilliant mind will one day figure that out.
The court's most recent term brought the dizzying spectacle of Scalia, et al., committing wholesale judicial activism, fabricating law from whole cloth in order to weaken the Brady handgun control act. The same criticism was leveled long ago at Justice William O. Douglas when he found the right to privacynever stated in the Constitutionemanating from "umbras and penumbras" of other rights, which eventually led to the decriminalization of abortion in Roe v. Wade. (Brennan played a key role in shaping Justice Harry Blackmun's most famous majority opinion, now largely eviscerated by Reagan-Bush appointees.)
Scalia, Thomas and Chief Justice William Rehnquist have not been nearly as creative as the late, great William O., but have largely done the same kind of thing. When they've mustered enough votes, they just concoct an opinion to get the desired result. And so it should be.
The Constitution is so wonderfully vague that it can be reinterpreted to fit the times. Failure to address current needs means governments fall. Ours has lasted because of the resiliency of that document with more bounce than cannonballs off the midships of Old Ironsides.
Notwithstanding Brennan, the Constitution today does not resemble the ship by the same name which never lost a battle. With the possible exception of the right to refuse to quarter troops in your home, no part of the Bill of Rights (the first 10 amendments to the Constitution), stands undamaged.
If not for Brennan, you might not be reading this column today. Brennan's decision in the 1964 case of New York Times v. Sullivan established a new standard of libel law, especially with respect to public figures. It came just in time for the turbulent 1960's and assaults on press freedom begun by the Kennedys and escalated by Richard Nixon and Spiro Agnew.
If you are sickened by what's available to you via the media today, imagine it without the impact of Brennan. Do you think you'd ever read about who's doing what, with which and to whom down at city hall? Would you like to see television run by those who write bulletins for the post office? Picture news reportage filtered through 48 layers of Pentagon press spokespersons or the gobbledygook of your average city manager.
You know more than you otherwise would thanks to William J. Brennan.
All his life, the little giant was able to practice what most only preach: that this country protects the rights of the individual, no matter how weak, flaky, disreputable or despicable.
Godspeed and thank you.
Be well. Raise hell.
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2017 UPDATE: Andrew Barbano is a 48-year Nevadan, editor of NevadaLabor.com and JoeNeal.org; and former chair of the City of Reno's Citizens Cable Compliance Committee, He is producer of Nevada's annual César Chávez Day celebration and serves as first vice-president, political action chair and webmaster of the Reno-Sparks NAACP. As always, his opinions are strictly his own. E-mail firstname.lastname@example.org.
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