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by ANDREW BARBANO Updated 3-3-2017
 Justice
William J. Brennan now lies simultaneously dead and immortal. In life
and death, he sits among the fewest of the few: John Marshall, William
O. Douglas, Oliver Wendell Holmes, Louis Brandeis, Earl Warren, Benjamin
Cardozo.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 privacy—never
stated in the Constitution—emanating 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.
Equal
Rights Betrayal
Reprints
of the UNR financial
scandal newsbreaks remain available for the cost of copying at
Nevada Instant Type in Sparks and both Office Depot Reno locations. |
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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 barbano@frontpage.reno.nv.us.
The Barbwire's Silver Anniversary: 1988-2013
Barbwire by Barbano moved to Nevada's Daily Sparks Tribune on Aug. 12, 1988, and has originated in them parts ever since.
Whom to blame: How a hall-of-famer's hunch birthed the Barbwire in August of 1987Tempus fugit.
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