If you have access to The New Republic’s premium content online, or have a chance to buy the dead-tree version this week, make sure to do so. Justin Driver has written an outstanding essay on Justice William Brennan. It’s styled as a (positive) review of Seth Stern and Stephen Wermiel’s new full-length biography of Brennan (pictured right), but it’s really a fascinating essay on what Driver considers to be the myths of Brennan, and his effectiveness on the Court.
Since this is Legal Planet, I should mention that Brennan played a key role in the development of regulatory takings doctrine — and in ways that belie his reputation as a result-oriented liberal. He wrote the opinion in Penn Central Transportation v. City of New York, the Court’s touchstone regulatory takings case. More significantly, though, Brennan led the fight to ensure that the remedy for a taking was in fact monetary compensation: his dissent in San Diego Gas & Elec. v. City of San Diego made a comprehensive case for why monetary remedies are necessary in takings cases. Eight years later, Brennan had gotten four other justices to agree with him. He was also wise enough to dissent in Nollan v. California Coastal Comm’n, Justice Scalia’s right-wing activist decision that established our current, rather silly “regulatory exactions” jurisprudence.
In any event, read Driver’s piece. It’s an excellent analysis of the way that the Court works.