How to Honor a Celebrated Justice?

Brennan who passed away in 1997, was a unique justice, known for his staunch defense of liberal values and personal charm. So after 34 years on the bench, he accumulated a large number of former law clerks along with a huge reservoir of affection.

Unlike some aloof Supreme Court justices, Brennan was “a man who would literally embrace you and wrap himself around you” recalls Clyde Szuch, Brennan’s first law clerk. “The warmth and humanity of the man just radiated from him…and the clerks responded and wanted to give it back.”

That ruled out the standard gifts marking a Supreme Court retirement. “Most of the time, what you do is have a portrait painted of the justice or have a bust made,” Szuch notes. But Brennan’s clerks wanted to do something extraordinary.

Greatly aiding that goal, Brennan’s ex-clerks during their reunions made it clear that they “absolutely adore him, would put ourselves on the railroad tracks for him,” says Joshua Rosenkranz, a former law clerk behind the establishment of the center. After Brennan retired from the court in 1990, the clerks’ reunion was marked by a “general buzz about what we should do to memorialize him,” Rosenkranz recalls. But Rosenkranz steered the conversation back to the present. “Why are we talking about doing something after he dies?” he asked Brennan’s loyal former aides. Why not do “something significant while he’s still around to see the love that gets poured into it and to be part of the conversation about what it is?”

Even that brought a spirited debate among law clerks used to professional conflict and “not shrinking violets,” Rosenkranz notes. Finally, two workable ideas emerged: a think tank or as an agent of change, a public interest law firm. Rosenkranz offered a solution to bridge the gap. “Bill Brennan never chose” to sacrifice one of his ideals, Rosenkranz declared. “Why not do …a hybrid of a think tank and activist organization?”

With both sides satisfied by this bridging solution, the project “started in concentric circles that grew larger and larger,” recalls Rosenkranz. But Justice Brennan was adamant about one thing. “You have to promise me this won’t be the Brennan Defense Fund where a bunch of brilliant lawyers go running back to my old opinions from an age long passed to figure out what I would have thought about a problem,” Brennan insisted to his former clerks. “He kept saying, ‘don’t be bound by [my] opinions. Make up your mind,’” adds former law clerk Peter Fishbein.

Another major question was not of philosophy, but practicality. Where would the new center be located? The clerks soon narrowed it down to three major law schools: Harvard, Georgetown and New York University (NYU).

In the end, what drove the decision was that then-NYU law school dean John Sexton “really did have a passion for it” and a plan, Fishbein remembers. Sexton “had a real vision about how it would be integrated as part of the law school.”

“From the beginning both NYU and I were enthusiastic about the idea and were willing to put sweat equity and energy into it,” recalls Sexton. They saw it as “a unique opportunity in that it combined a potentially powerful public interest organization and a law school in a deeply symbiotic way.”

The advantage to the university was “a tremendous fluidity between law school faculty and students…and a cadre of powerful public interest lawyers,” notes Sexton. NYU also clinched the Brennan Center deal by offering the services of law school professor Burt Neuborne, who had a national reputation in civil liberties circles. Neuborne, still legal director at Brennan, “really was the intellectual sculptor of the early projects around voting and democracy,” Sexton says.

Known for nurturing his ex-clerks, Justice Brennan cheerfully encouraged Rosenkranz on the project. But his daughter reveals that while Justice Brennan was “delighted” at the thought, privately he couldn’t believe such a living tribute would actually come to fruition.

My father was just like a reluctant debutante,” says Mary Brennan. “He’d ask for and occasionally get a progress report and he’d shake his head and change the subject…He always thought this would just poof, go away, because there wouldn’t be any funding, nobody would take an interest.”

But his former clerks were not only interested in seeing their tribute through to fruition, many had achieved wealth and power in the legal profession. The clerks raised the considerable amount of seed money to start an endowment. The tiny Brennan Center opened its doors at the end of 1995 and soon began seeking outside grants to ensure its long-term survival.

Carnegie Corporation’s Early Funding Makes a Difference

Carnegie Corporation’s influence came right at the beginning due to its role, along with the Joyce Foundation, as the new Brennan Center’s earliest funder. By all accounts, the Corporation’s backing helped the new organization grow from a staff of two to a staff of forty in eight years.

Initially, Geri Mannion, director of the U.S. Democracy Program at Carnegie Corporation, made the $25,000 grant to Brennan because “it was an intriguing idea…a great opportunity to honor someone who had an amazing legacy.”

But for the Corporation, the grant was a modest amount of funding for a promising idea, not the promise of long-term support. “We were not going to build the Brennan Center for Justice,” Mannion explained. This was an initial grant. We said, ‘let’s see where it would go.’”

Still, the grant encouraged other funders to come to the center. Major funding can bring a “lemming kind of opportunity. The thing about Corporation funding,” Mannion explains, is “if you get money from us, it [builds] confidence to get more.”

In fact, soon after the initial $25,000 came from the Corporation in 1996, a smaller foundation made a whopping $175,000 grant to the new organization.

Carnegie Corporation added another $75,000 the next year and much bigger grants would flow to the center. Brennan’s founders say the Corporation grants helped to ensure the center’s survival.

“In the early days, the Corporation grant delivered two things,” Nancy Brennan says. “One was that although it was a project grant, it wasn’t written like a straightjacket and allowed a young nonprofit to feel its way. The second was that it delivered credibility and cachet,” which was “hugely important.”

Philanthropist George Soros and others “took notice” she recalls. “Grant funding, particularly of the quality and nature of the Corporation’s support, was the key,” Justice Brennan’s daughter explains.

“Carnegie Corporation is responsible for putting the Brennan Center on the map,” adds Rosenkranz, the center’s first executive director. “The Brennan Center might not even be there had it not been for that initial bet.”

But with the Corporation money and other funders coming along behind it, the Brennan Center achieved results from the start. The Legal Times saluted the Center’s “remarkable first year success” in 1996. “As it gained a sound financial footing, Brennan began hiring lawyers and was on its way to becoming a power in the campaign reform field. Instead of spending its first year getting acclimated,” legal and Supreme Court expert Tony Mauro wrote, “the Center plunged almost immediately into a program of litigation, teaching, public-policy advocacy, and research projects that bodes well for its future.”

Yet success also brought growing pains for Joshua Rosenkranz and the Brennan Center. “Joshua was and is brilliant,” Mannion recalls, but “he had to kind of restrain himself…Because he could be perceived among the grassroots advocates in the field as the big know-it-all legal eagle from New York who would tell everyone in the field—including other national groups—what to do…Brennan had to realize that they would be more welcome if they approached the field as willing and able partners, albeit from the legal angle, all working toward a common goal of making the electoral system—and our democracy—much more efficient, responsive, and inclusionary. Brennan learned that it could advance the center’s overall objectives better in collaboration with those working on similar issues, especially at the state and local levels. And now the election reform/civic engagement field leans on Brennan as if it were their own personal legal counsel.”

The lesson took hold well enough that representatives of several organizations working with the Brennan Center say it’s actually more deferential in partnerships than other organizations.

Brennan is “very respectful,” according to Janice Thompson, executive director of Democracy Reform Oregon in Portland. “They recognize that it’s up to the local players who have on-the-ground expertise to make the policy calls. Their goal is just to make sure…the policy is as legally defensible as humanly possible.”

“With the Brennan Center,” she adds, “they’re just about as far away as I could imagine a national group being from taking a big-footed approach. That dynamic really doesn’t exist,” she declares. “They treat us like clients and they treat us well. It’s like having a democracy public interest reform law firm at my fingertips…and they don’t bill us, which is a huge help for our strapped local budgets.”

The unrestricted nature of most recent Corporation grants is credited by the Brennan Center as a major factor in allowing its Democracy Program to assist local organizations and file legal challenges quickly if necessary. “Its general support allows us the flexibility to deal with problems as they come up,” explains the center’s Justin Levitt.

That’s exactly what Geri Mannion intended for the Corporation grants. “I’m a big believer in general support,” she says, since it allows groups to be quick and nimble in their response. One example is Brennan’s effort to spotlight the “dysfunctional” nature of the New York state legislature.

The campaign “reaped a huge amount of publicity” and movement toward reform. “We would not normally fund New York-based groups or organizations,” Mannion says. “If I had only funded Brennan on a project-by-project basis, they might not have been able to take on this issue. Because it is so hard to constantly be fundraising, especially for project grants, groups end up missing important opportunities to respond to breaking issues.”

Mannion’s grantmaking philosophy is based on rewarding successful grantees by providing general support when appropriate and getting out of the way. “Our money facilitates good work. We don’t do the work,” she points out. “We select good organizations. We bet on smart people, who are strategic and visionary, effective in what they do, and who prove it by showing results. Brennan has a track record in succeeding.”

“That’s everybody’s hope,” remarks David Udell of the Brennan Center. “Some foundations are more enlightened than others when it comes to trusting good organizations to do good things with their money.”

That trust extended to additional funding for Udell’s Justice Program to help battle what he calls “grossly unjust” restrictions on federal legal services funding on behalf of poor individuals. Udell points to a small success with the Brennan Center winning a 2001 Supreme Court case striking down one of the funding restrictions.

Recently, Corporation support also allowed the Justice Program to publish the results of a conference on the controversial issue of civil liberties and national security. Carnegie Corporation’s support “made a difference at a critical time. I’m sure it was helpful in encouraging other foundations to support the work,” Udell says. Another intriguing tie comes through Aziz Huq, deputy director of Brennan’s Justice Program and a 2006 recipient of a Carnegie Scholars award from the Corporation. “There’s a congruence between the scholarship that is fostered by Carnegie Corporation and the substantive work at the Brennan Center,” Huq remarks. “There’s still really an unfortunate dearth of clear and critical policy thinking on what we should be doing to strengthen national security.” His concern points to an issue that the Corporation continues to work toward on many fronts: forging stronger and more direct connections between scholarship and policy, so that policymaking is informed by data, analytical thinking and objective information.

Copyright information | Masthead | Carnegie Corporation of New York web site