After a tumultuous week in which the United States Supreme Court stood at the center of the world’s stage, it’s worth pausing today, especially here at the Brennan Center, to honor someone special we’ve lost. Anthony Lewis, a writer and journalist who transformed coverage of legal events and issues, a reporter who covered the Court better than anyone before or since and whose work often tracked the mission of this institution, died Monday in Cambridge, Massachusetts.
He will be missed in his own right, of course, but also as another link to the life and times of Justice William J. Brennan. The arc of Lewis’ career tracked the arc of the justice’s career on the Court. Lewis won his first Pulitzer Prize, for his coverage of civil rights, the year before William Brennan was appointed to the Court by President Eisenhower. And the height of Lewis’ career as a reporter coincided precisely with the height of Justice Brennan’s power and influence on the Warren Court.
The one man who loved the law reported upon the public works of the other man who loved the law, and over time, the journalist came to understand the influence the justice had upon the American scene. Upon Justice Brennan’s retirement from the Court in 1990, Lewis chose this for his lead paragraph in The New York Times: “It was only gradually, in the 1960's, that observers of the Supreme Court came to understand the influence of William J. Brennan Jr. When he retired last week, everyone knew. One student of the Court put it: ‘He is the great expositor of modern constitutional law.’''
Although he died this week, Lewis’ voice was not silenced. Terry Gross, the host of National Public Radio’s “Fresh Air” program, paid tribute to the journalist on Tuesday by re-playing on air a 1991 interview conducted with Lewis in which he described the import of Justice Brennan’s opinion in New York Times v. Sullivan, the seminal First Amendment case which Lewis wrote about in his fine book, “Make No Law.” Here is an illustrative exchange:
GROSS: Brennan’s decision is really beautifully written. I was wondering if there was any of it you’d like to read or quote from to give a sense of a specific passage that means a lot to you as a journalist and as a student of the Supreme Court.
LEWIS: The most famous passage in the opinion, Justice Brennan’s statement: We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials
Christopher Lydon, the author and radio host, also linked the two men earlier this week in a touching tribute to Lewis. Lydon wrote: “It wasn’t about dogma, much less radicalism. It was temperament as much as politics. It was about a modest optimism, a belief that institutions, even societies, could work on their flaws and get better. He was the human embodiment of the Warren Court, in that sense. He made a pair with his friend Justice William Brennan, who stood also for civility, compromise, persistence on an upward course.”
I wondered aloud this week what Lewis would have written had he been well enough to cover the same-sex marriage cases before the Court. How would he have explained the equal protection arguments shifting up against federalism concerns? What calculus of words would he have used to explain in simple terms the jurisdictional arguments that seemed to vex so many journalists and other observers? About what would he have been optimistic as he listened to the lawyers and the justices spar over fancy hypotheticals?
And I have similarly wondered to myself these past few months what precisely Justice Brennan would have decided — and written — when faced with today’s marked challenges to the Voting Rights Act (which he consistently upheld) and the Defense of Marriage Act and Proposition 8 and the wave of Sixth Amendment cases that have flooded the Court as it grapples with the meaning and effect of one of the most profound cases of Lewis’ career — Gideon v. Wainwright. No, it’s not hard to guess how he would have voted in these cases. But how would he have explained himself? And in so doing what impact would his explanations have had upon his colleagues and upon the rest of us?
Lewis anticipated this question — Lewis anticipated many questions — and offered up his answer in that Times’ piece. Of Justice Brennan, Lewis wrote: “His persuasiveness was extraordinary. What was its secret? I asked a former law clerk of his, Prof. Frank I. Michelman, and got this answer: ‘If you are personally magnetic, if you have a candor that attracts trust, if people respect your knowledge and your reasoning power, you may have influence!’''
Lewis continued his tribute to the justice: “His personal qualities are mentioned by everyone who has known him, in agreement or disagreement. He is warm, genial, unassuming. He never says anything unkind about other people. He speaks with delight about Chief Justice Rehnquist, with whose constitutional views he so often clashed. In recent years his natural place in the middle was of course largely lost to him. His increasing role as a dissenter would have tormented many judges, but he seemed serene – at ease with himself and his role on the Court.”
Like Justice Brennan near the end of his career, Lewis, too, lost his natural place in the middle and became a frequent dissenter to the course of contemporary law and politics. Like the justice, Lewis in the end was writing for posterity. Journalists come and go. So do Supreme Court justices. Even the good ones, even the brilliant ones, sparkle and shine and then fade a bit with time. That’s less likely to happen with Anthony Lewis, I think, and with Justice Brennan, too, for one simple reason: intelligence and ambition are common, grace is rare.