Interview with Thomas E. Brennan (part 2)
Sponsored by Michigan Supreme Court Historical
Conducted by Roger F. Lane
January 29 - February 14, 1991
1. Justice Brennan discusses the impact of the Boykin vs. Alabama
U.S. Supreme Court case on Michigan court cases.
This is tape 5 in the series with Justice Thomas E. Brennan for
the Michigan Supreme Court Historical Society. Today is January 29, 1991, and
we're going to start out, Justice Brennan, I hope talking about the Boykin
problem that arose on the Court during your period of service there in about
1972 or 1972, when it came to a head, and I refer, of course, to Boykin vs.
Alabama, 1969 United States Supreme Court case. The gist of it was that if a
judge is going to take a plea of guilty in a felony type case, there has to be
demonstrated on the record the fact that his rights were safeguarded in certain
respects. It had to be shown that there was counsel, that he knew he was
entitled to a jury trial and that sort of thing. Now, in 1972, the Court began
to have some growing problems about this and you were for sometime sort of a
voice crying in the wilderness, saying, "Hey, Court, we're going down the wrong
road here", and what the Court was doing was extending the Boykin doctrine
quite wide to the point where a lot of persons who serving long periods of time
in Jackson on guilty pleas suddenly began to sense that they could get another
trial even if they'd been convicted 20 years ago. Do you remember...what do you
remember about this?
Well, I remember that the Boykin case in general, held as you
state, that in order to take a guilty plea, the Court was required to ask
certain questions of the defendant. You've just handed me People vs. Jaworski,
and my dissent.
You waxed a little eloquent.
Well, the thing about it is I am 20 years away from this stuff.
I pick up things I wrote and I say to myself, "Did I write that?" This
particular opinion, I remember only vaguely but I apparently had divided
Boykin, what I called "Boykinism", into three categories, and the first was
"Pure Boykinism" which holds that the record of a guilty plea to pass
constitutional muster, must contain a statement of advise by the judge to the
defendant that he has three constitution rights: trial by jury, the right to
confront his accusers, the right not to be a witness against himself and then
secondly, a statement by the defendant, separate and apart from his guilty plea
by which the defendant expressly waives each of these rights on the record.
Then I talked about "Orthodox Boykinism" which called the guilty plea itself
the waiver, but insists on a judicial statement of advise, and then finally, I
refer to a thing which I called "Ecumenical Boykinism", which does not require
the judge to play the role of the defense attorney, merely requires a
recitation of the constitutional rights, either on the record or on a piece of
paper duly signed in the defendant's own hand. This particular controversy
troubled me substantially because the Court was getting into a kind of
formalism that almost marked the Courts of Common Law centuries ago where they
were departing from substance. I mean, it may be a confusing concept, but
procedural substance, that is, the substantive reason for the procedural rights
that we afford defendants of criminal cases. When a person pleads guilty, they
voluntarily place themselves within the jurisdiction of the court and the power
of the court to send them to prison or deal with them as a person who is
convicted of a crime, and it is obvious that we don't want people pleading
guilty who aren't guilty or whose decision to plead guilty has been affected by
fraud or duress or anything other than a free and voluntary choice on their
part. But of course, all human beings who had their faculties, are made with
the faculty of free will, and they all have the capacity to make free choices.
Some people make much more intelligent, informed, careful, prudent choices than
other people, and in most instances, the people who are defendants in criminal
cases are not among that category. In those cases, the people who are accused
of crime and who are pleading guilty in criminal cases are people whose
intellect is not among the top, who are certainly free individuals and sui
generis in the sense that they are responsible for their own actions, but in
the eyes of an educated jurist, they may have an extremely simplistic view of
life and simplistic view of their own dilemma as they stand before the court,
but I'm not prepared to say that that simplistic understanding of their
predicament isn't adequate for a human being to make a free and voluntary
judgment, so what I'm saying is you could stand there all day long and lecture
some of these defendants about the constitution and their rights, but
communication is a two way street. It is not just what is said, it is what is
understood, what is received. A sender and a receiver, and anybody who has
taught in a school or a college or addressed a jury has to know that what you
say isn't always understood by the people you're talking to in the same sense
in which you say it. Now, I think a lot of this Boykin controversy was an
attempt on the part of some of our judges to have this kind of perfect
understanding of the defendant's predicament from which he would have this full
and totally informed capacity to make a judgment and his judgment about being
guilty or not guilty was made in that context. In my opinion, it was an attempt
to achieve some perfection of human nature that doesn't exist. The constitution
provided that people are entitled to counsel, in the VI amendment, I guess it
is, and these people all had lawyers. Well, what is the function of the lawyer?
The function of the lawyer is to advise the client. That's what he is paid for.
That's what he is educated to do, and presumably, he advises these clients in
the language that they can understand. He dialogues with the client in the jail
and if the man speaks in broken English or if he speaks in ethnic patois, maybe
the lawyer dialogues with him in street talk, in the same way that he
understands things, but it is the responsibility of the lawyer and the thing he
is trained to do to make sure that he conveys the information to his client
about what his rights are and what his choices are. It used to be in the old
days that the lawyer stood before the judge and said, "Your Honor, I have
advised the defendant of his constitutional rights. He fully understands them
and he wishes to enter a plea of guilty". That statement was given weight. It
was regarded as a significant statement on the record proving, in fact, that
the defendant was advised of his constitutional rights. Well, Boykin said "We
don't trust the lawyer and we're not going to accept the lawyer's
representation that he has informed the defendant of his constitutional rights.
We're going to inform him of his constitutional rights from the bench and put
the process of informing him on the record". Well, the process of informing him
on the record is a formal juristic statement of rights, maybe completely
accurate within the constitution. I assume it assuredly completely accurate
within the meaning of the constitution, but always done with the pomp and
sterility of judicial discourse, and done in open court in front of a crowd of
people, on the big day when a man is in court before the judge, and his heart
is pounding in his throat, and the idea that he is going to understand what he
is being told or that that is a circumstance in which you were going to be able
to give him information and have him exercise intelligent choice on the basis
of it is ludicrous, absolutely ludicrous. But we went through this whole
charade, and we're still going through the whole charade. We do it for whatever
reason. In my opinion, what we were doing then, and none of the judges would
admit it, none of the justices on our Court would admit it, and the justices of
the United States Supreme Court wouldn't admit it, but what we were doing, as
far as I'm concerned, was we were trying to find a way to get involved in
sentencing, in sentence review. When a person was sent to Jackson prison for 20
years on his guilty plea, and he had been up there for 15 - 18 years, the only
way he could get out was to attack his conviction and since he pled guilty, how
were you going to attack the conviction. The only way you'd get anybody to
resentence him or to review it is time in prison, and there was a feeling on
the part of many of our judges that some of the sentences were too severe. They
had no track to get to that other than to order re- trials and guilty pleas. In
my personal opinion, that's what they were doing.
You know, it's fair to assume that you were explaining your
attitude to your fellow justices on the Supreme Court somewhat in this
In this manner and in stronger words.
All right, now Jaworski you were just reading from. That's 387.
Now, in 389, what happens on one day here? Do you remember this particular
There was a whole raft of guilty plea reversals, and it was
done as part of the administrative work of the Court. They were not all formal
appeals, so it appears in the back of the book, just among the miscellaneous
matters attended to, and I made a point in my dissenting from the decision of
the Court to say that I dissented from this of second guilty plea reversal, the
third, the fourth, the fifth, and in fact, there were seven on one day.
These were all Boykin cases?
They were all Boykin-style cases, and I was making the argument
that the Supreme Court of the state was swinging wide the doors of the
Now, that was on January 29th. On February 28th, something had
happened by then, and is it not true that Justice Levin who had just come on
the Court, through some chemistry that maybe you can explain, was given the job
at some point of saying, "Hey, this is...we're going diametrically in the
opposite direction of where we should be going and we're going to do...", what
you just said..."that we're going to turn all the prisoners in Jackson or most
of them, out of jail and give them new trials". Do you remember how it happened
that once these two new members came on the Court...you'll notice that on
January 29th, Justice Coleman had just come on and she joined you in a couple
of these. Prior to that, I take it you dissented by yourself without bringing
any of the other members of the Court along.
...and 1972, I was definitely a voice crying in the wilderness.
In 1973, I guess Mary had come on.
In January, that's the first month she was on the Court...in
the second month, two new members were on. Levin is assigned a job apparently
from what I was able to determine, inquiring as a reporter, there were these
orders issued on February 28th that said to those who were affected by the
January 29th new trial orders that, "Hey, wait a minute. Don't do anything.
Those orders we issued four weeks ago...we don't want you to act because we're
going to do something else". Then on the 28th, four weeks later, they were all
quashed. "Quashed" was the word.
In those seven dissents that I made? You mean they turned them
around? I'd forgotten...
On February 28th, four weeks later...
All seven of them were turned around?
Well, four of them in one batch. Now, I don't think probably
any of them survived as orders for new trials, but I wondered if you recalled
what was going on inside the Court at this time? You had been shouting from the
steeple rooftop or whatever, saying, "Hey, stop, stop stop. This is all wrong",
and then, having done that for quite a long time, several months or a couple
years, suddenly your colleagues seemed to hear you or accept your argument
where they had ignored it before and they reversed field, just like football
I would say that my good friend, Roger Lane, who was at that
time a distinguished reporter for the Detroit Free Press, probably hit the nail
on the head when he wrote in this article, "A highly qualified neutral
I think it was Ron Dzierbicki.
I don't know. You could have been the neutral observer
"...saw political rivalry as figuring importantly in the Court
democratic majorities studied, disregard of Brennan's protests. They tend to
turn off on Brennan. He opposed the rule of law that the majority expressed in
the leading cases in this area and they probably felt that 'he was just against
us from the beginning and simply ignored him', the observer said". My
recollection of the matter is very skinny. I can't tell you exactly why the
Court turned around, but I would be fairly confident in saying to you that I
would not party to it, that whatever persuaded the majority to back off, it
wasn't the fact that I dissented. That would have been a reason for them not to
back off because if they backed off after I had dissented and then said, as I
did, and you quoted it in the story, that "the Court has this day fallen out of
its tree". I mean, I criticized them. For them to back off after my criticism
would appear to make my criticism justified, and give me an "I told you so",
and they didn't want to do that, so I would say that if they backed off, it
would have been not because of my objections but in spite of them and because
they probably were pushed by public story, newspaper stories.
You know, my knowledge of this, I think, started with Jim
Ramsey. You remember Jim? He was a former Assistant Attorney General, and then
he retired and he went over to the Ingham County Prosecutor's Office and
started handling appeals, and one day, he said, "My God, what's going on over
there?", and then he started telling me about this. He had discovered, and he
transmitted to the Court...he was the attorney, he was the prosecutor in one of
these cases, represented the prosecutor, Mauch, and he said, "If you people go
down this road that you're going down ever more rapidly, you're going to turn
1,000 or 1,200 people out of Jackson and the other prisons. My authority for
that is the Director of Corrections who has run a count of this". Now do you
suppose that is what sort of awakened or, you know, caused...
It could be. I think the Court was certainly sensitive to bad
press. It's always been sensitive to bad press, and either bad press or the
prospect of bad press, more than anything I would say, in a conference, would
change their minds.
But the...some of us...I was a layman at that time. I now could
claim to be a lawyer, but the idea that by sitting around in a room in the
capital and four or five people get a certain notion and start to put their
signature on orders can have an effect almost boggles the mind, if this is a
proper representation of what actually was being done, and I think the ordinary
layman wonders, "My goodness, what is going on in the minds of these eminent
jurists as they go about this sort of a process?"
And I think again, your statement is so true, your quotation
from whoever it was you were quoting, that "the Supreme Court, being far
removed just are insensitive to the guilty plea situation and trial court
procedures generally. They just don't see these things. Their lofty isolation
takes away perspective. They're up on Mount Olympus and when they look down,
all the people look like ants". That's a very interesting and I thing cogent
I think I'm quoting Ron Dzierbicki, who was an extremely well
qualified person to make a judgment in this.
Whoever it was.
And he was to one side, he was clerk at the Court of Appeals at
Whoever it was knew what they were talking about, because that
is quite true, and you had people who were able to debate the niceties of legal
procedure in a vacuum with almost no realization or ability to project into
real life how that would work, how that would be once you put it into effect,
Is this an argument, then, for trial lawyer and trial judge
experience as a qualification to sit on the Supreme Court, or doesn't
Well, I certainly think trial work as a lawyer or a judge is
It's also helpful to have people who have just lived a little
in terms of had some experience out there. I don't know. It's endemic to the
human condition, I guess. People get the God complex when they go on these
Well, I didn't want to beat this to death. Maybe we've gone on
too long on this thing. I wanted, on another possibly related subject, to ask
you about something that was said during the portrait presentation ceremony and
this was done in 1980 after you'd left the Court, and your former assistant,
Mike Devine came over and talked as one of those who took part in the ceremony,
and he referred to a time when there was a problem down in Oakland County that
had to do with a grand jury. Do you remember that? He said that you decided,
you were then Chief Justice, to reconstitute the Court. What the heck...do you
remember what that was about?
Yes, not a lot of the details, but Mike talks about it in this
speech, and as I recall, it was a hot potato grand jury. The Attorney General
was asking for a grand jury in Oakland County, and I forget who was being
investigated or why exactly, as I recall. I seemed to me that it involved a man
by the name of Lazaros.
And he was a...
...very slippery character with a very shady background who was
capable of lying about anything, and one of the things he did every time he
would get in trouble with the law was he would start telling stories about
judges, and people in high places, and how he knew this one was corrupt and
that one was on the take and whatever else, and he'd make the most bizarre
allegations but for some reason or other, he had the ear of some people in the
State Police, and they tended to believe him, at least to the point of wanting
to investigate and in fact, there was a request for a grand jury in Oakland
County. I think in that case, Lazaros had probably pointed the finger at some
people in Oakland County. Curiously enough, something makes me think that one
of the people whose name was mentioned at that time was Jerry Bronson, but I'm
not sure. It could very well have been that his name was...
He had come through Oakland County. He had been prosecutor.
Prosecutor out there, and whether or not it was something he
did or was alleged to have done when he was prosecutor or a judge, I can't
remember. I don't think Jerry was a Circuit judge. I think he went right from
being prosecutor to being on the Court of Appeals, but anyway, for whatever
reason, the Oakland Circuit judges, one after another, began disqualifying
themselves from hearing this petition, and I got the message as Chief Justice
that there wasn't anybody in Oakland County that would accept this grand jury.
There wasn't any one of them who would be the grand juror, and I became very
concerned that the justice system was going to break down in Oakland County,
and we, the Courts, were going to get a very bad black eye for simply not
acting on the Attorney General's petition. Since it was local stuff that was
being alleged and so forth, I felt that maybe some outsiders would be better
off handling it, so I conceived of the idea of completely reconstituting the
Court which meant taking all of the Oakland County circuit judges and assigning
them for one day into other counties...Lapeer, Wayne County, Washtenaw,
Monroe...just sending them off to do a day's work someplace else, and bringing
in a whole bench of outsiders who would then pass on, make judgement on the
petition for the grand jury and appoint a grand juror being one of themselves,
because, as I recall, the statutes said that the bench was to appoint one of
their own members to be the grand juror and since nobody in Oakland County
wanted to do it, we had to have a new Oakland County Circuit Court. That's just
what we did. That bench...I forget who all was on it, but there were a lot of
judges from Detroit, as I recall, and one of them was Judge Bob Colombo, and he
was appointed the grand juror. I guess the newspapers, as Mike Devine recalls,
were making a lot of noise about this and demanding this grand jury be
This Lazaros, he had a great appeal for the newspaper and some
of the reporters, I guess.
Well, because it was very scurrilous, what he would be
claiming. It was almost tabloid stuff, but that was an interesting little
2. He then gives a description of a court case that led to the
reconstitution of the Oakland County Circuit Court and the case of Governor vs.
State Treasurer in 1972, regarding the financing of education.
Here's another thing that I wanted to bring to your attention.
This is the case of Governor vs. State Treasurer. Why don't you describe a
little about what this represents? That was 1972. Do you remember this
Yes. Let me just take a moment...
My guess is that it is pretty well summarized in what is
labeled "Addendum" which is a couple pages that preceded what you filed as an
Yes, I'm just kind of reviewing this, because I remembered it
but some of the details I didn't recall. This was a very unhappy thing. First
of all, I didn't think the lawsuit was really an adversarial proceedings. It
was, in my opinion, a "sweetheart law suit". Milliken vs. Green. Milliken was
the governor. Green was the State Treasurer appointed by Milliken. They weren't
mad at each other. They weren't fighting with each other over anything, but it
was a vehicle whereby the governor could place before the Court the question of
the constitutionality under Federal constitutional standards of the Michigan
constitutional scheme for the financing of education. By the luck of the draw,
I was assigned to write the opinion in the case.
Excuse me, before you go on, do you have...did you have then or
do you have now a pretty good notion of the behind-the-scenes origin of why
Milliken was moved to do this? Who...did somebody have a bayonet in his back or
did he do this for philosophical reasons? This is ordinarily something...
No, this...of course, the whole process of state financing of
education and the financing of education in the state of Michigan and elsewhere
had been a reasonably hot political potato for a long time. There was a case
out in California, I believe, called Serrano in which the California Supreme
Court declared that the California educational financing system was
unconstitutional under the Federal constitution and so they threw it out and
mandated that the legislature enact a different method of financing the
schools. That successful effort in the courts, I suppose, emboldened our
governor to try here. He had certainly tried for a long time to get the
legislature to adopt various changes in the way in which schools were financed,
and the School Financing Formula, that is, the formula by which the states
would pay money to the school districts, it tinkered with every term, every
term of the legislature. It's always designed to try to get the local bodies to
tax themselves to a maximum, to reward them for taxing themselves, to equalize
the effect of their taxation on education since in some so-called poor
districts, people might pay a high tax and yet generate very little money for
the schools because there isn't that much property in the area, so the whole
idea of the state formula was always to try to equalize and make up for these
variances. I think Milliken started the lawsuit because he was frustrated. He
couldn't accomplish things in the legislature and he thought a quicker, easier,
more effective way would be to go to the courts, emboldened, as I say, by a
success in California and other places. Remember, this was 1972 and it was a
time of judicial ascendancy and extreme judicial activism, both at the federal
and state level.
There are some people, by the way, who may not remember at this
late date, that when Milliken became governor in 1968, he did it with the
flourish to become the education governor. Do you remember that? He created a
commission that met up in Leland and all that sort of thing?
There still may have been some aura, now long hardened,
I think you're quite right. I think that he...Bill Milliken was
interested in education and he made an effort to try to identify himself and
his administration with it. In any case, here we had this lawsuit which at
least in form, was a controversy between the governor and the state treasurer,
in effect saying to the state treasurer...I don't know what...wanted the Court
to say to him, "Thou shalt not pay out money under the current statutes because
everything is unconstitutional". The case was assigned to me, and I proceeded
to write an opinion which I circulated among the members of the Court in July
of that year. I received the assignment on June 6th, the case was argued on
June 6th. My opinion was circulated about a month later, six weeks later, July
27th. I held in my opinion that the constitutional method of financing schools
in Michigan was not unconstitutional under the federal law, that the Michigan
constitution established a method for financing public schools which was
essentially through a system of school districts, each one being autonomous in
some respects and responsible, largely responsible for its own financing and
given the power to tax, real property taxes. In December of that year, after
nearly five months after I had written my opinion, Justice G. Mennen Williams
circulated what he called a discussion draft which was in effect, a opposed
opinion holding that the Michigan method of financing the public schools was
unconstitutional under the federal constitution. We didn't have a meeting of
the Court scheduled between then and the end of the year. Justice Paul Adams
was going off of the Court. Mary Coleman was coming on. That had all been
decided in the election and so on. There was almost no internal procedure with
respect to the Williams opinion.
We never had a meeting to discuss it. It was called a
discussion draft, but we never had a meeting to discuss it, and then all of a
sudden on December 26th, the Chief Justice informed me and other members of the
Court that there were four people on the Court ready to decide, to sign the
Williams opinion. So it was signed, and it was issued.
Do you remember the date, probably the 29th or 30th?
It was right at the end of the year. I can't recall exactly the
date on which it went down, but it would be in the books. I was stuck with this
formal so-called majority opinion that I had written that didn't address the
Williams opinion at all, didn't dissent from it. It simply presented an
entirely different point of view. I filed that as my dissenting opinion, mostly
because I had done the work and I thought whatever scholarship was involved
there should be given the light of day and let the profession use it or not use
it, as they chose, but then I wrote and added to my opinion a so-called
addendum in which I attempted to address the Williams opinion as best I could
on very short notice. I ended up pointing out that in my opinion, the majority
opinion was not good law. It was not even law. It was a position paper, a
political position paper, really, and I felt the whole issue was political to
begin with. Obviously, it is still before us, 20 years later, debating about
how to finance public education.
Do you remember what the sequel was to the filing of that
opinion on December 30th?
Yes, the sequel was that after the new year, January, 1973 when
Mary Coleman came on the Court, there then was a quick shift, and I believe at
the behest of Justice Levin who made the motion, the Court sua sponte,
reconsidered the opinion in the case of Milliken vs. Green and reversed its
opinion, in effect...
That happened in January, what you just recited, but it's
interesting...if you go through the reports, I believe you find this -that in
August or September or somewhere later in the year, there is...without any
title or headnotes or anything, there is a one paragraph thing that is in the
form of a order of the Supreme Court. What that said, as I recall, was that
such and such things, having happened, including the opinion of the United
States Supreme Court in a Texas case, Rodriguez, that we now expunge...it think
that word was used...from our records the opinion filed in December. If it
didn't use the word "expunge", it was something equivalent to that, that we
said it naught vacate, and attached to that little order, as I recall, was
something that bore Levin's signature that was quite a broad and thorough
analysis from his viewpoint, somewhat along the lines of yours, that this was
kind of an opinion in a vacuum that didn't do anything and didn't decide
anything. It said what the legislature had ordained one and a half years before was
out of order, but that now there is a new year, and a new school aid law and
that if...it invited the Court or invited anybody to come back to the
Court...Do you recall that part of it?
In just sort of general terms, but you see, that whole
process...I don't know...I think the Court is still doing it because people are
still on the Court who believe that it's the proper function of the Court do to
these things and I think the principle, one of them, is Justice Charles Levin.
I think Justice Levin sees the Court as a kind of body with a constitutional
mandate to make decisions, make decisions about anything, about government,
about life, about people, about the way we live and the way we are, the way we
finance things, the way we pay for things, whatever. I don't think he has the
same sense of a limited role of decision maker between litigants that I have. I
mean, I think a judge in a Court decide cases, cases and controversies, and
that they decide them in accordance with some traditional limitation of what
kinds of decisions that they can make. I think Justice Levin is probably what I
might call of the Solomonic view, that is, you can be inventive. You can make
things up when people come before you and if a case is presented that sort of
highlights a problem in society, you can directly address the problem in
society, and in effect, issue orders to the world which you hand...pin on the
door of the courthouse and make everybody come and see.
Do not the rules or does not the constitution limit the Court,
circumscribe what it can do?
(End of side 1, tape 5)
Oh, yes, but can you conceive of a judge saying to people,
"Bring us a case. We invite you to bring a case to our Court". Why? Why in the
world would a court ever say to the world "We invite you to bring us a case?".
I mean, the reason they say that...what we want is an excuse to make some law
here. We have an idea about how the world should be and how things should be
run but unfortunately, we have...
3. Reconstructing lost footage because of a mechanical
malfunction, Justice Brennan talks about judicial activism and the prospective
vs. retroactive changing of Common Law in relation to a court case concerning
immunity for negligence committed by eleemonsynary (or charitable)
Here we are again.
All right, now Roger, I understand we are reconstructing side B
because we had a little mechanical failure, and we'll do the best we can with
the help of your notes and what we've been able to glean from the side B that
was lost. This is tape #5, right?
You said that at the end of #5A, we were talking about...had we
gotten into Governor vs. Green?
Yes, we had pretty well finished with that, and as I recall,
right at the end, you were saying is what this adds up to is that the Court was
begging litigants to come on in and bring us a case so we can make some more
Okay, good. Well, and I think that that sort of led me into a
discussion about the judicial activism, about prospectivity of decisions.
Exactly, and I think I mentioned Shavers, although Shavers
actually was decided finally, somewhat, some years after you left the Court in
1978, but you had already got a taste of it, I think, in the advisory opinion,
and if you remember, in Shavers, the court said, "Well, this thing is not quite
right, but we'll let it sit there for one and a half years. The legislature will fix
it up and then we'll apply the constitution on it".
The case that I remember, and I wish I could bring to mind all
the facts - one of the cases by name, I believe was Meyers. I don't think the
Meyers case was the one I participated in. I think that was the one that had
occurred before I came on the Court, but there was a series of cases having to
do, if I'm not mistaken, with the principle of the liability of eleemosynary
institutions for their torts of negligence. The old common law rule having been
that eleemosynary institutions were immune for liability for negligent actions.
Apparently the thought was that it was a way to encourage the good nuns and
other groups of people to establish in hospitals and other facilities for the
poor, and you didn't want to visit on them civil liability for having failed to
do their good works in a completely non-negligent fashion. It would be similar,
I suppose, to legislation that we have enacted recently, the so- called Good
Samaritan laws, the policy being that you want to encourage people to be the
good samaritan, to assist someone they find to be in trouble without worrying
about being sued. So that was the old common law rationale for the immunity of
eleemosynary institutions in end of late 50's and 60's here in the state of
Michigan, that if you came up in connection with hospital liability and
malpractice and so forth. There were some decisions by our Court which, as I
recall, established the rule...changed the common law rule and established the
rule that these institution were, in fact, liable for their negligent torts.
Again, I'm doing this from memory. It seems to me that this was the principle
of law involved. One of the debates among the judges was if you're going to
change the common law by a Court decision, should you do it prospectively or
retroactively? There was always the argument that a great many people relied on
the law as it then existed, that insurance contracts were written based on the
law as it had previously existed, and that there was a certain amount of equity
or fairness on the side of those who relied on old court decisions and so forth
for making their business judgments. You really had about...you really had
three different ways in which the courts talked about changing the common law.
One was simply to decide the case in favor of the plaintiff and say, "We're
changing the common law. You can now sue a hospital", and because the old law
doesn't apply because times have changed or because the old law was a mistake
in the first place or whatever, but "we're going to do that", and simply not
say about what cases it applies to at all, which would basically mean that
anyone who had a claim against the hospital that wasn't barred by the statute
of limitations, that is, anyone who had a claim against the hospital that was
no more than two to three years old could come in and start their lawsuit and
the courts, if they followed that precedent, would listen to them. The argument
there would be, for the defendant, would be, "Hey, we bought an insurance
policy based on the old law, and we didn't cover our negligence because we
weren't liable in the old days. Now you're going to make us pay for these torts
of malpractice out of our own pockets because we're not insured. Had we known
you were going to do this to us, we would have insured ourselves". In the face
of that argument, the courts did two other things. One was to say, "All right,
we will decide this case before us, this case of Jones or Smith or whoever it
was that was the lead actor, the ground breaker who brought the case and who
made the argument for overturning the common law rule and making a new common
law rule, and in his case, we would let the plaintiff win, but we would say to
the world that we're not going to do this except for other cases that occur or
the case itself, the injury itself occurs after today's date", so all those
cases that would be in the pipeline of three years, the last three years, those
people are out of luck but anybody who has the good fortune or misfortune of
being the victim of malpractice from today forward will have a lawsuit. That
was another approach that they took. Of course, the logical problem with that
was that the plaintiff in this case did not have a claim that arose after this
date, so the plaintiff in this case, his claim is two to three years old. In
effect, you are holding in favor of the plaintiff on a case that is two or
three years old in one case and then saying to the world that everybody else
who was injured the same day this guy was isn't going to be able to collect. By
definition, you're creating an unfair and inequitably and discriminatory
application of the common law rule. Well, among the arguments that some may
have made about that was, "Well, that's true. It is discriminatory. You're
treating this man different than everybody else who was injured the same day in
the same place or whatever, but it is a reward we're extending to this
particular plaintiff for having taken the trouble to come all the way to the
Supreme Court and he is sort of...the prize he gets is that he gets to win his
case whereas everybody else injured the day he was injured cannot win". I
always thought that was a ludicrous argument and it had nothing to do with the
justice of the cause, you know, to say that somehow you're going to reward this
person for having overturned the law. So with that logical difficulty, there
were a group of people who took a different view and they said, "Yes, that's
true. It would be unfair to reward this particular plaintiff, and let's be
logical. Let's say this: From this day forward, everybody who is injured by the
malpractice of hospital has a claim, but this plaintiff doesn't have a claim
and anybody whose claim arose before this date doesn't have a claim, so we're
going to hold in favor of the defendant hospital in this case. We're going to
deny this plaintiff's claim, but we're going to announce that from today
forward, the rule will be different". That was the so-called true prospectivity
type of a decision. Now, think about that. Here's a court of seven elected
justices deciding this case in favor of the defendant. You ask "What was their
decision?". Their decision was that the eleemosynary institution is immune from
liability as it has always been under the common law. That's the rule of law
which they applied to the facts in this case, and that's how they arrived at
their decision, but now, having done so and having carried out what they're
paid to do as judges and having done it in the great tradition of the common
law by using precedent, they now say as an addendum or whatever, "But the next
time a case like this comes in, if the injury occurred after today, we'll make
a different decision". Think about that. I mean, they are telling the world
what they're going to do in the future in a different case, that is, if dicta
means anything, that's dicta, okay? They might as well right a Law Review
They might as well go to a banquet someplace and all seven of them
stand up and say, "Next time we get a case like this, we're going to make this
decision". It's improper for them to announce their decision in classes of
cases that aren't before the Court. If a judge got out and made that statement
on the stump when he was running for election, the Bar Association would be all
over him for being unethical. He has no business announcing to the public what
kinds of decisions he is going to make in what classes of cases in the future.
I mean, that's pandering for votes based on how you're going to decide your
cases, and yet the Court does it and has done it many times in the books where
they do this so-called true prospectivity. It's an absolute abomination. It is
an absolute perversion of the judicial process, okay, and it was in that
context that I said...oh, George Edwards wrote such an opinion, a true
prospective opinion in which he said...he began the opinion, "From this day
forward" were his words, okay? It was a pronunciation, it was an edict. It
wasn't a damned decision. It was an edict that attempted to change the law
prospectively. Now, after the Edwards edict, and whether that was the Meyers
case or what, but on this subject, along came another case, some other
plaintiff, through ingenuity or perseverance or whatever, worked his way up to
the Supreme Court, and his injury had occurred prior to the day that Brother
Edwards had announced was the effective date of this new rule, and what did the
Court do? They decided the case in accordance with the new rule, so despite
George Edwards' announcement that as of today, the rule is going to be
different for all future cases, in due course of time, when a case came up that
was, had begun prior to that date, the Court decided in favor of the plaintiff,
in effect ignoring Edwards' prospectivity pronouncement. Now, I cited that to
show that when Edwards announced that the rule was being changed today from
this day forward, that it was sheer nonsense or poppycock, and that was the
basis. I called it that in my opinion. I said, "This is sheer
poppycock. The Court cannot announce future decisions. They can't bind future
Courts, and so it is sheer poppycock". Hiram Bond who was for many years the
reporter of the Michigan Supreme Court decisions, the person responsible for
the editorial clean- up work and the management of the printing and publishing
of the opinions, was a wonderful kindly old and scholarly old gentleman with
the Court for many, many years before I came, and Hiram was a stickler on
grammar, pronunciation and so forth. After you wrote your opinion and
circulated it to the other justices your draft, a copy would go to Hiram and he
would read it and you'd get a memorandum from Hiram about corrections that he
was suggesting you make, always very polite, always very deferential but always
very firm that it was improper for you to do this or whatever. He recommended
highly that you don't use this phrase or that, whatever. In this case, Hiram's
memorandum said that, challenged the use of the word "poppycock", and I think,
as a matter of fact, he phoned me. I don't think it was in a memorandum. He
phoned me because I remember him telling me that the way in which words were
used in Supreme Court opinions was one of the sources that lexographers go to
get the information for dictionaries and are able to say "This word has found
acceptance in the language" and so on and so forth. If it is being used in
Supreme Court opinions, that is very good evidence that it is accepted in the
language. He said, "You don't want to use this word because the word
'poppycock' means soft dung". He sort of suggested it was crass and perhaps
inappropriate word for a Supreme Court opinion. I said, "Hiram, that's exactly
what I meant to say" and I left it in. If poppycock or soft dung becomes in the
next edition of Webster's dictionary as a common usage to indicate, to mean
nonsense or foolishness, maybe I had some contribution to that cause. Anyway,
where were we? Does that cover that whole thing?
Well, but remember, you had some other observations to make
about this kind of...I remember the City of Detroit vs. Jaxon. Is that...?
I don't know how we strayed from the poppycock story into
Jaxon. Possibly it had to do with...there was a stream of consciousness in our
discussions on the tape previously. It may have been that we were talking about
opinions and words that you use in opinions and that might have brought me to
talk about the City of Detroit vs. Jaxon because the City of Detroit vs. Jaxon
is an opinion which I can even give you citation for because I happen to have
pulled it down off the shelf. It appears in 379Mich405, and I'm glad I got it
down because my recollection of the case was not accurate, and having refreshed
my recollection, I can give a better statement of what the case was, but I had
referred to Detroit vs. Jaxon on a number of occasions because it was my one
excursion during my service on the Supreme Court into the area of judicial
humor, and my one attempt to be funny which I'll tell you what the result of it
This was the case about the woman that stepped off the
(interruption in taping)
It's the lady that stepped off the bus. The bus driver stopped,
and instead of stopping where she could step onto the curb, she stepped down
into the street so instead of having perhaps 10 or 12" to step off of the last
step of the bus to the ground, she had to go about 16 - 18" down to the street
level. I tell the story of her fall very matter of factly in my opinion until I
reach the bottom of page 409 and I said, "She apparently expected to step onto
the curb but alas, there was no curb underfoot and the plaintiff went
a'tumbling". Then I say, "Mrs. Jackson fell victim to Fetridge's Law". There's
a footnote there, and then...I don't know if you want me to read this footnote
onto the tape, but the footnote refers to Claud Fetridge, an employee of NBC
who conceived the idea of broadcasting the whir and flutter of the eager wings
of the swallows departing the mission of San Juan Capistrano in Southern
California on October 23rd which is St. Johns Day, and that was traditionally
supposed to be the case except that when they got all set up with their
equipment to record it and broadcast it, they discovered that the birds had
left the day before, so Fetridge's Law came to be known in the circle of
humorists where they had these so-called laws of probability to be stated as
follows: The principle of Fetridge's Law - "That important things which are
supposed to happen do not happen, especially when people are looking", all of
which can be found in a book by H. Allan Smith called "A Short History of
I won't belabor it. Elsewhere in that opinion, I made reference
to Gumperson's Law which is generally stated that "the contradictory of a
welcomed probability will assert itself whenever such an eventuality is likely
to be most frustrating". Anyway, I played around with these two humorous rules
of probability, and fortunately or unfortunately, I managed to get a majority
of the Court to agree with the result of my decision, at least, though not the
words of my opinion, except that I got a lesson taught to me by Justice O'Hara
who dissented in these words: He said, "I am uninstructed in Fetridge's Law and
Gumperson's Law. Insofar as negligence law is concerned, I accept the statement
of the Court of Appeals..." and he goes on from there, so the embarrassment of
having attempted to be humorous stuck with me for a long time, and I have
occasionally used that to admonish young judges not to try to be funny in their
opinions. That was that reference to H. Allen Smith.
4. Mr. Brennan and Mr. Lane discuss if Catholicism is an issue in
performing his public duties and the role of conscience in government.
I think I had asked you...
Was that on this side?
Yes. I had asked you, and we're switching subjects now...about
whether you found any problems in connection with your Roman Catholic faith in
discharging your public duties, and I had averted to the issue that was raised
in 1960 against Jack Kennedy when he was running for President, and the gist of
it seemed to be people who opposed him because of his Catholicism and said, in
effect, "Well, if he gets in a jam, he'll call the Pope and the Pope will tell
him what to do, and this isn't the way the country ought to be run". You have
confronted in your service issues like abortion or obscenity, parochiad things
that have a great interest for the church, whose faith you profess. What do you
have to say about this? Does this ever inhibit you or cause you...do you think
it affected your service?
Well, I think among non-Catholics, there is a perception that
the Catholic church is a very authoritarian organization and that somehow or
another, persons who, Christians who profess allegiance to the Roman Catholic
tradition are subservient to ecclesiastical authority in all things, and I
think to a degree, we probably bring that on ourselves, oftentimes by talking
about what it was like to go to parochial school and be reared by nuns and
priests who rapped your knuckles and kept you after school and did a lot of
things of that kind. I think at some point in these tapes, I talked at some
length about the priests at Catholic Central High School and Father Sheedy
knocking Gus Sonnenberg out and things like that, and I think that among
non-Catholics, there is a sense that Catholics are...they march to the beat of
the papal drum and in fact, that the Pope or ecclesiastical authority speaking
for the church could, in fact call up a Catholic politician, judge and tell him
how to decide his cases. I think that the action of the Cardinal out in
California recently who...what's the word for...kicking somebody out of the
Excommunicated or threatened to excommunicate a state
legislator who was vocally pro- abortion and deny her the sacraments of the
church or him or whoever it was, that that is taken by non-Catholic Americans
to be an interference with that politician's ability to represent his or her
constituents. My sense of it is that I am a Catholic, not because I have
Catholic blood in me or that I am a subject of ecclesiastical authority in the
sense that I may be a subject of the government of the United States or as
someone is the subject of the king of England. I am a Catholic because I
believe in the teaching of the Catholic church, and when I go to mass on
Sunday, I recite the Nicene Creed as part of the statement of my beliefs, and I
really believe those things, so if I decide a case or if I act consistent with
the teaching of the Church in some area, it is not because the Church tells me
I have to do that. It is because I believe that I have to do that. That's my
conscience telling me. You get into a kind of semantic problem of the
difference between being instructed in one way or the other and being informed.
It is my view that not only Catholics but all rationale human beings have a
responsibility to have an informed conscience. We are not...we have in our
make-up, the Lord gave us the responsibility to act in accordance for the right
reason, to do what is right as opposed to what is wrong in all of our actions.
This is fundamental tort law, you know. Act as a reasonably prudent person
would under the same or similar circumstances. We all have that built into our
rationality, but part of that rationality says you can't blind yourself to
information and then pretend that you're exercising rationale judgment. If I
have a shot gun or a 30/30 and I'm out in the woods, and I hear some movement
back there among the trees, I can't just fire my gun assuming or hoping that it
might be a deer that is in there. I have some responsibility to take a look and
see if that is another hunter, and my conscience can only be guided, can only
guide me if I am faithful to my responsibility to inform my conscience about
the facts and about the principle. So the same thing is true with respect to a
Catholic's relationship to his church. We have, as individuals, responsibility
to inform our consciences. The church is in the business of teaching about
right and wrong, and it is a resource, a source that a person of good
conscience, has an obligation to explore, just as you have the obligation to
read books, to consult, whatever, and there are many Catholics, I'm sure, whose
consciences tell them something different that what the Church teaches, but
they've read Thomas Acquinas, and they read Augustine, and they've read other
philosophers and theologians and so forth, and they've come to some sort of a
conclusion that they're happy with, that they believe is correct and true, and
they don't think that they're out of the teaching, the mainstream teaching of
the church, so they go about their way and they do what they do. What's
important is that they have instructed, informed their conscience about these
things. For most of us, day to day Christians, we haven't got the time to go to
the library and dig out theological books. We basically have to have a ready
source of counsel and information, so you know, you read some literature, maybe
the weekly Catholic magazine or newspaper, and you listen to the sermons on
Sunday, and you inform your conscience. That's not the same thing as taking
orders. It's not the same thing as taking orders. An adult, mature Christian
has that responsibility and it wouldn't make any difference whether you are
Catholic or what you are. You have a responsibility to inform your conscience
and make up your mind about what is right and wrong. I think that is something
that may not be well understood by non-Catholics.
In an adjudicative context, this can also be distinguished from
the policy-making role of an executive, can it...or much more confined public
duty, so to speak?
Yes, and I think an executive role, it may not be very far from
such things as the duty of a military officer, for example, to carry out the
orders of your superior. I think you have less running room to substitute your
personal judgment for the judgment of your superiors in the executive
department than you do in the judicial department. A kind of folksy analogy
that I frequently use about the three branches of government, executive,
legislative and judicial - I have often compared with three aspects of human
personality, that the executive is like the physical aspect...human
nature...man is a rationale animal. He shares with the animal kingdom his
animal aspects, but his rationality exists because he has a soul, and the soul
is really two things, free intellect and free will, so the nature of human life
is physical, intellectual and free will, those three concepts and I compare
those three to executive, legislative and judicial. The executive is like the
physical life, it's your hands, your feet, the way you carry out things, the
way you do things, the way you interact with the outside world. The judiciary
is parallel to the intellectual function of human life. It is the function of
judgment, of thinking, of deciding, of judging, not necessarily deciding, and
then finally, the free will is parallel to the legislative function in
government. We often hear the phrase that "the Congress will work its will".
It's a different thing from making its judgment or making a decision about
something based on intellectual principles or right reason. A legislator can
always vote his conscience. I mean, if he wants to hang onto his job
politically, he probably votes the conscience of his constituents or what his
constituents generally want, but when a legislator votes aye or nay on a bill
or resolution in the House or the Senate, that person has absolutely no
constraints. He is not constrained by the constitution. He is not constrained
by his church or by anything or anybody. He literally does what he wants to do,
whatever he wants to do. It's the Latin, voluntas. It's free will that he
exercises, and it's a matter of choice, and frequently, that's exactly what the
legislator has to deal with. He has the better of two evils to select from. "Do
you want green or do you want blue?" It doesn't make any different. They're
just two colors. Which do you prefer, so very frequently that's what the
legislator does, and that's the concept. If you think of this parallel and you
think in terms of a human being working for the government or being involved in
the process of government, either executive, legislative or judicial, you can
see that the role, the conflict between personal preference or personal
conscience may be quite different whether you're in executive, legislative or
judicial department of government. In the executive department, there is the
least tension between...there should be the least tension....no, the least or
the most...maybe I want to say it this way: The executive department tolerates
the greatest tension between personal conscience and duty in the sense that if
you're the hangman and you're paid to be the hangman, you've taken the job,
then you hang everybody that they bring you, you know. If your duty as a public
officer is to sign this check, then you sign this check, irrespective of what
the money is being spent for. It is not your decision. Your job as the
treasurer is to sign the check, make sure the accounts are proper, make sure
the accounting is made to the public authority, whatever that may be. Thinking
in terms of the Registrar of Deeds. He must record every document that is
brought to him. He doesn't make any judgment of what is in those documents or
whether it is good for society or whether it is what God wants him to do. He
just does what he is paid to do, so the preference to do the public duty over
private conscience is enormous in the executive department. As I say, in the
legislative department, it is almost non- existent. You pretty much do whatever
you feel like doing when you're voting as a legislator. But in the judicial
department, there is the greatest need or desire, or logic to meld the two, to
meld your public duty and your private conscience because basically, the public
duty and the private conscience both flow from the same thing. They flow from
reason, from human reason and Thomas Acquinas said "the law is a rule of reason
ordained by proper authority and promulgated for the common good", and if you
are following that law by that definition, you're following your reason, and if
you're following your reason, you're following your conscience, so there's a
great melding of the two in the judicial department, and what is important and
necessary for an Appellate judge is that he express his views on the law
rationally and logically and in a way that relates to public policy, never
says, "I got to vote this way because I'm a Catholic. My Church tells me that
this is what I must believe". That may be good enough for him to inform his
conscience in his private affairs. You know, "I do not speak ill of my
neighbors because my pastor tells me that's a sin. I don't personally see
anything wrong with bad mouthing a few of my neighbors. They deserve it, but
because the pastor says I shouldn't do it, I won't do it". You can't have that
kind of logic as a judge. You can't bring your church or your religious
discipline in in that way. You must say, "We should not speak ill of our
neighbors because it is not good for society and..." and whatever law or
whatever you're dealing with if that's the principle involved in it, you have
to have a reason for it which is unrelated to religious discipline. Anyway, I
guess I've talked enough on that subject.
As sort of a back light, as I would phrase it or describe it,
to this whole discussion of principles that we've been talking about, you
raised the question, sort of antidotally about what happens at the end of a
dinner where you have a bunch of people sitting around disposed to chew the fat
a little bit and what is the proposition that you put before them?
Oh, yes. I don't know whether that goes onto to this next tape.
If it does, maybe we started it here, so I'll...we'll continue. The issue that
I like to pose around the dinner table after supper with good people who are
intellectually astute and articulate and so on is to put this proposition out:
"Resolve that no persons should be elected President of the United States
unless that person is capable of committing murder". When you state the
proposition in that fashion, there is a certain shock- wave that goes through
the group, but then the discussion starts to get lively. The first general
reaction is that we don't want a murderer as a president. That would be
terrible. Then you begin to put certain specific hypothetical situations before
them, and they begin to back off and start to have doubts as to whether their
first reaction was correct. For example, if I were to say..."If George Bush
were a murderer, would you want him to continue as President?" They say, "No.
We'd want him out of there. We don't want a murderer in there as President".
"Suppose he doesn't commit the murder himself but orders somebody to be
murdered?" "Well, I don't want that either. That's the same as murder. You're
talking about a mafia don who orders people killed". "Well, suppose he ordered
Saddam Hussein killed?" "Oh, that's good. That would be wonderful if he did
that. That would get this war over with and there would be less loss of life
and ...", etc., etc. Then people realize that the question of whether they want
their president to be a murderer or not really depends on who it is he is going
to murder which sort of reminds me of the rule of law that John Dethmers, God
rest his soul, gave me one time with respect to murder cases. He said the first
rule in every murder case is "should the deceased have went". That's the first
question in every murder case - should the deceased have went, and when you
stop and think about it, that probably is the single consistent strain through
most murder trials. But in any case, that whole idea of whether a President of
the United States, whether the people of this country want a President of the
United States who will violate the law in their behalf is a very interesting
concept. After all, public opinion is outside of the constitution. Public
opinion is not controlled by the constitution. The constitution says that every
person is presumed innocent until proven guilty. Public opinion doesn't have to
presume them innocent, and rarely does. The constitution says that every person
is entitled to freedom of speech, but the public opinion is that some people
shouldn't be allowed to talk at all because what they say is unpopular and
undesirable, so while the constitution may say that people cannot have their
property taken away from them without just compensation, the public opinion
might be that the president could seize the steel mill and not give those rich
steel mill owners anything at all if it was in...was for the benefit of the
Some kind of a war time emergency or that sort of thing.
(End of side 2, tape 5)
As far as the public is concerned, they wouldn't even need an
emergency. I mean, all they really need is some sense that it is to their
benefit to have this thing done, and they're happy to do...
Justice Brennan discusses making decisions by law or by
conscience in a judicial context, the UAW's role as an active litigant in court
cases, and adopting opinions from lower court decisions.
Here, now we're on again, Justice Brennan.
Anyway, let me just conclude the thought which was do we want a
President of the United States who is capable of killing, committing murder,
and it's interesting to find that many, many people that that is what they
want. When you get right down to discussing it, they don't want a president who
is too squeamish to commit crimes in the service of the nation. Every president
has to deal with the question of when his or her conscience says "no" and what
do you do when either your official public duty or what the people expect or
desire of you are in conflict, and frankly, I think Kennedy's reaction was very
correct and so would anybody. Any president worthy of being elected to that
office should say "When my conscience offends against my so-called public duty,
I am going to follow my conscience, and I'm going to either do what my
conscience says, and if I can't do it and be consistent with my public duty, I
will resign from public office".
Well, in an adjudicative context, though, are you...is it the
same thing or in an adjudicative context, you have a controversy before you and
it's come up in the right way and it has to be decided. It goes against your
conscience if it is decided one way. Do you then decide it on the law or on
conscience? Am I saying it right?
I think...you raise an interesting question. Had I been on the
Court after Wade vs. Roe...I may have had a case like this. I don't recall. Had
I been on the Court and confronted with literally a Roe vs. Wade situation,
where somebody was making the exact same argument about the Michigan statute as
Mrs. Roe had made about the Texas statute that led to the U.S. Supreme Court
decision, now the case is before me or us on the Supreme Court, and I am one
out of seven people to vote on this issue. What is my public duty and what is
my conscience duty with respect to the thing? My first reaction is my
conscience duty has no bearing at all on the thing because if I can't...if I
don't have an argument on the basis of public policy and my role, my proper
role as a judge to make, then I can't decide. I can't say...I can't vote to
overturn this statute because my church...because I belong to a church that is
against abortion, so I am going to recuse myself from sitting on the case. I
can't do that, and I don't have to do that because I could say very easily,
regardless of what my church says, I'm sworn to do my duty, and this is the law
of the land, and I am sworn to uphold it, so I'm going to uphold it and be done
with it. But there's a third thing that a person can do and in my judgment,
should do. I would, anyway, and that is this: the decision of the Supreme Court
of the United States in the Texas case, while it is precedential, while it is
guiding in the sense that it is something we should pay some attention to, it
does not bind the Supreme Court of Michigan in another case. It's not res
judicata, stare decisis, yes, but not res judicata, and stare decisis, the
difference between those two things is very important as you well know. They
haven't decided the Michigan case yet. The Michigan statute may be different or
the Court may want to review its decision in Roe vs. Wade for one reason or
another, so I'm sitting there and I'm saying I'm going to decide this case
according to what I think the law is under the circumstances, and I have as
much right to interpret the Federal constitution as the federal judges do. I
was sworn to interpret the constitution of the United States as well as the
constitution of the State of Michigan, so I could very well write an opinion
saying I think the Michigan statute written in 1946 is valid, and say, "There
you are gentlemen. There's my decision, and if you want to take it to the
United States Supreme and if they want to reverse me just like they reversed
the Texas judge, let them do it". I think that is not an invalid thing for a
judge to do. I think it may be somewhat controversial in the sense that a lot
of people would say, "Well, you've got an obligation to follow the United
States Supreme Court". I don't think it's a legal obligation. I think it's kind
of a traditional obligation.
A judicial officer sitting on an Appellate Court in a state is
in a different position than, say, from an executive officer who is given the
order of marshall or somebody to do this thing, and the guy either does it or
not, and he is sworn to do what marshall tells him or...?
Yes, I think that's a good distinction.
Let's get onto...do you remember...were you sitting on the
Court when the four year registration case came up for decision, UAW Community
I don't remember it.
Well, that was the four year registration, 387...that would
have been your time, wouldn't it?
Well, if you don't remember it, why should we go into it?
Well, maybe if you've got a question about it, you can raise
Well, this was again, I thought, the sort of block voting that
seemed to be evident, let's say in the Governor vs. the State Treasurer.
Yes, the four year registration case...using the Secretary of
State as the registrar as well as the driver's licenses?
Well, that's right. He administers the election laws and so the
form of the case, the style of the case was UAW Community Action Counsel and
NAACP and various other people against the...whoever was...Austin or whoever,
Secretary of State.
Right, and said it is contrary to...it is an unconstitutional
burden on the right to vote to require people to renew their registration every
two years even though, and there are various provisions in the statute...now
does that bring to mind?
And they concluded that certain people had voting patterns, and
they voted in the presidential election every four years, and that that was a
valid voting pattern, and therefore, you had to keep people on the rolls. I
would guess that I dissented from that.
You sure did.
Just as I dissented in the case that Swainson wrote in which
they concluded that all the kids at Michigan State University had to vote in
East Lansing and all the university kids had to vote in the towns where they
were going to school which was, in my opinion, those were just pure political
decisions where the Court was using its power to enhance the political position
of their fellows.
Okay, well, then you would agree...Black just tore his hair out
on this one, and he, in the most emotionally charged passionate terms told his
colleagues on the Court that they were paying political debts rather than
performing a proper function as a justice of the Michigan Supreme Court, and he
recalled who has been owed his nomination and who would, the next time around,
owe his nomination to the people who were trying to get the election
Well, the UAW's role as a litigant, and of course, you had Gus
Scholle's case back years ago on the question of apportionment and so on, but
the UAW...I mean, was an active litigant, and they were an active litigant in
the sense that litigation was deemed to be a means of affecting public policy,
so to the same extent that the UAW was active as a lobbyist, it then became
active as a litigant whenever someone concluded that the courts could be
importuned to achieve what they couldn't get in the legislature. One of the
things that began happening after Soapy Williams and John Swainson came on the
Court that I had never seen before and which I found troubling was the manner
in which the UAW communicated with the Court. For a long time, as long as I
could remember, the pleadings filed by litigants would go to the clerk, and the
clerk would make copies and distribute them and when they were distributed,
they would go to each Justice, and each Justice's secretary knew what to do
with them. Typically, she would turn them over to the law clerk for some
processing and eventually, they'd get on the judge's desk. The UAW took to
sending copies of the pleadings directly to the Justices. They would file their
statutorily or court-ruled required eight or ten or twelve copies with the
clerk as they were required to do but in addition to that, they sent copies
directly to all the Justices through the mail, and your mail was processed
differently than the inter-office distribution of opinions. Your mail, today's
mail got in today's mailbox, so if the UAW was the litigant, you got...you read
their pleadings a week or two before you otherwise would have. I had my reasons
to suspect why that was happening. I can only say that they were the only
litigant that did it.
I was talking to former Chief Justice Coleman not so long ago,
and she said she was astonished one day in conference when she hadn't been
there very long, and somebody knocked on the door and it was a message for one
of the members of the Court sitting there urging the support of a piece of
legislation that was apparently at some jeopardy over at the legislature. She
took some umbrage that this was a way of communicating. I hadn't heard of that,
by the way, for people who may be listening to or reading this in the future,
the conference room on the Court is sort of a quasi-sacred place, and the Court
usually met there without the presence of anybody else, and if there was
somebody else there, it was a clerk or somebody that was invited expressly for
some, had some connection with what the Court was arguing and considering at
that moment. Well, so much for that. This was...the reason I thought you might
recall this was that Gene Black reacted in a way that...you know, he could get
his histrionics up pretty fast, and in this case, it was the most strident,
ferocious kind of discussion that I ever saw come from him and wind up in the
reports. So much for that, though. One little thing to maybe...I wanted to ask
you about and could be disposed of, perhaps, very quickly - there was a case in
387 that you drew to write the opinion in something like somebody's plumbing
and heating vs. Cadillac Sands which is a hotel up in Cadillac, and it was a
two-bit sort of a contract case. I don't really remember why it wound up on the
Supreme Court. You wrote...this is a contract case come to us through such and
so...this case was decided in such and such a manner by the Wexford County
Court and here is what Judge Peterson had to say about this - "this is an
excellent discussion of the case. I adopt this as my opinion for Michigan
Supreme Court in reviewing it" and then I think everybody else signed it, too.
Do you remember that? Was there any particular reason why you...?
I don't specifically, but I do remember having done something
very similar to it in another case, but I couldn't tell you what case it was. I
vaguely recall that. Bill Peterson is a man for whom I had great respect. He
was a very good judge, and he wrote good stuff, and I think it was one of those
things where his opinion simply said it all, and there wasn't any point in our
trying to embellish on it and frankly, I had been a trial judge, and I think I
had some concept of how a trial judge would feel to see his opinion in the
books, and Bill was certainly somebody who was every bit as bright as the
people on the Michigan Supreme Court and had the chips fallen differently in
his life, he might very well have been a member of the Supreme Court and a good
one, so I kind of thought if there wasn't any reason to try to improve on it,
why not give Bill the byline. I did the same thing one time in an argument by a
lawyer. I think his name was Nelson. I think it was Roy Nelson who made an
argument in court one day, and whether it was a dissent or...I think it was a
dissenting opinion. I simply said that I could not make a better, give a better
reason for dissenting in this opinion than to state the argument of counsel,
and I simply stated it verbatim. On another occasion, I wrote a very short
opinion, dissenting opinion in which I said I dissent from the majority opinion
for the reasons given in the majority opinion.
What was that case? Do you remember?
I can't recall it, but I know I said it. I mean, it was a
situation where they gave so many good reasons for going the opposite direction
than they did, I couldn't have said it better, so I just said I dissent for the
reasons given in the majority opinion.
Bill Peterson was mentioned from time to time as a very
possible appointee when a couple of these vacancies, I think maybe when your
Because he was a Republican judge, and...
(interruption in taping)
From Wexford, Cadillac, Michigan.
Mr . Brennan and Mr. Lane discuss the case of Dorothy Riley, a
Michigan Supreme Court Justice, and his attempts to prevent her removal from
Now, Justice Brennan, I would like to have you discuss your
activity on the Dorothy Riley case, and I refer, of course, to the litigation
that occurred after her appointment in 1982 in November.
All right, now, you understand that I had left the Court at the
end of 1973, so I was, at that point in time, some nine years off of the bench.
The Riley case came up when Justice Dorothy Comstock Riley was appointed by
Governor Milliken to the vacancy created by the death of Blair Moody, Jr. Blair
Moody, Jr. died the day or two days after Thanksgiving.
He had just been elected to a full term of office which would
have commenced the following January 1st. Governor Milliken had not run for
re-election and was, of course, no longer going to be governor after the first
of the year. James Blanchard had been elected governor, would take office on
the first of January, 1983. Apparently, the Blanchard administration and some
others concluded that Dorothy Comstock Riley's appointment should only last
until the 31st of December. The paper that Dorothy Riley received from Governor
Milliken said that she was appointed until the first of January, 1975 which
would have been the...
Excuse me, sir, not 1975 in any event...
Could have been until the election next succeeding the start of
Yes, the next regular election at which justices of the Court
were to be elected, was the November, 1984 election, and I may be mis-stating
this, but I don't think I am. It was my recollection...it is my recollection
that the appointment specified January 1, 1985 though it may have said the
first of January next succeeding the next election. That's what the statute
says. Maybe it's the constitution, I don't know, but anyway, there is language
that specifies how long the appointment lasts, and it does say it lasts until
the first day of January next succeeding the next general election at which the
successor is to be elected. In any case, a lawsuit was commenced by the
Attorney General of the state which is known as a quo warranto action. Quo
warranto is an old legal writ which is used for the purpose of questioning the
authority by which a person presumes to exercise a public office, and
traditionally, at the common law, the quo warranto proceeding, if successful,
results in an ouster or a writ or whatever, ousting someone from a public
office, removing them from the public office. And the purpose of this lawsuit
was to remove Dorothy Riley from her office as a Justice of the Michigan
Supreme Court. I was very, very unhappy with the Attorney General's lawsuit. I
felt it was very political. I felt it demeaned the Court. It certainly did a
tremendous injustice to a lady who was a distinguished jurist and who had been
appointed, in my opinion, quite properly under the law and should have served
until the next election. It was, I felt, a very political move in an effort to
get an appointment to the Court by a friend of the new governor, someone that
the governor would want to appoint based on whatever reasons he may have had,
and the claim was made that this should have been Jim Blanchard's appointment
because, in fact, if I'm not mistaken,...had Moody defeated Dorothy Riley in
She ran third to Moody, Mike Cavanagh, and then she ran about
11,000 or 12,000 behind Mike, I think.
Yes, so she had been defeated by Moody and Cavanagh, but in any
case, she had not been elected. I think there was still the kind of partisan
sense or feeling around and about over that, and the concept that well, the
Democrats had run the election. A Democratic nominee to the Court had been
elected, therefore, putting the Republican nominee in and having that person
serve for two years was wrong. It didn't feel good. It didn't seem appropriate,
at least to the Democrats. I read the constitution, the statutes very clearly
that she was to serve until after the next election, and moreover, when this
lawsuit was started, I seemed to recall that there was a constitutional
provision prohibiting the Court from removing a judge, and I looked it up and
sure enough, there it was in so many words: "The Supreme Court shall not have
the power to remove a judge". Now, it seems to me that that language means what
it says. If the people of the state of Michigan wrote that into our
constitution, we wrote it in for a purpose, and whatever the purpose is,
clearly the intent of the people was that the Court could not remove a judge.
Now, this lawsuit then continued. Dorothy Riley was to her everlasting credit,
very quiet about the thing, didn't take a public position, tried to continue
doing her job. I learned later through a number of sources that she was treated
very poorly on the Court, very disrespectfully by some members of the Court who
did not keep her posted on things that were happening within the Court and so
forth, though no one really challenged her right to sit on the Court. The other
members of the Court didn't say "you don't belong here. Get out", but she
disqualified herself from participation, obviously, in the case that involved
her. I can't remember whether she recused herself from participation in all
cases or not. She may have for a while though I'm not sure. In any case, that's
of no consequence. I can't tell you what triggered my decision to become
involved, but something inside of me said "you've got to do something about
this. This is a travesty of justice. The Court is embarrassing itself". The
Court was getting bad publicity and ink and so forth. I'm not sure now exactly
of the sequence of events, but it came...there came a time when the Court heard
this quo warranto petition by Kelly, the Attorney General and decided by a
split vote to deny the petition, and this occurred on a Thursday or Friday and
the following Monday, the Court reversed itself and decided to grant the
petition and issued an order ousting Dorothy Riley from membership on the
Court. I am going to guess that this is probably well into February if not
March or later.
...of that year in 1983. I can't tell you again exactly where,
at what point I became involved but I remember that that episode of the switch,
change of decision on its own motion, was just another straw that breaks the
camel's back as far as I was concerned. I embarked upon a public relations
campaign or a public effort to try to generate popular opinion in support of
Dorothy Riley and to create a public demand that the Court reconsider what it
was doing or had done.
Prior to that, you had appeared before the Court and made a
legal argument, did you not?
You had not?
(interruption in taping)
No. I don't think so. I think I thought of that as...you know,
I could be wrong about the sequence of things. Let's see. Why don't you give me
some hint here...I remember holding a press conference over in the state
capital in which I said the Court was wrong in attempting to kick her off, or
that the lawsuit was wrong. I can't recall exactly.
It was, as I believe, before the decision was made in the
lawsuit, that I began to mount this public relations campaign and I remember
that I put together a rather extensive book called "Supreme Court vs. Dorothy
Riley" or "The Matter of Dorothy Riley" or whatever it was called, and it was
copies of all the litigation papers, etc., etc. One of the things that I
accused the Attorney General of doing was deliberately hiding from the Court
the particular constitutional provision that I quoted that says the Supreme
Court shall not remove a judge. This whole case went to and through the entire
Supreme Court. The decision was made to take her off the Court, and yet, nobody
in the Court had ever argued that constitutional provision. It was never
mentioned in the briefs or anything, and I pointed out that in the brief of the
Attorney General, they had come right down to it. It even dealt with the same
section or the section right before it, and had come right down to that
language that said the Supreme Court should not have the power to remove a
judge, and they stopped quoting the statute or the constitution, almost as
though they were deliberately trying to keep these words away from the Supreme
Court by hoping they wouldn't find them in the constitution, and apparently,
nobody did because there isn't any evidence at all, no record whatsoever, in
the oral arguments or the briefs or in the opinions of the Court or anything
that anyone ever dealt with that language. Had the Supreme Court said, "Yes, we
know that the constitution says the Supreme Court shall not have the power to
remove a judge, but we don't think it applies in this case for this reason and
that reason and that reason", at least they would have created a little film or
veneer of judicial interpretation, but there was no effort to do that at all.
The only conclusion you can come to looking at this whole thing was that
nobody...either nobody saw that language or if they did, they didn't want to
talk about it. So in any case, I went out to the law schools around. I went to
the University of Michigan Law School, Wayne State, Detroit College of Law, and
here at Cooley and every place I went, we put up notices around that ex-Justice
Brennan was going to be here talking about the Dorothy Riley case which was big
news at that time. So we got good turn outs among the various students and the
press covered us. It was like a teach-in. I was going around lecturing about
the constitution, what it said, how this whole thing had come to pass, what a
travesty it was and what should be done, hoping that I would generate some
popular support for Dorothy Riley and some public opinion that the Court was
making a mistake to back them off. Whatever I did, I didn't do enough of it. It
wasn't that successful. My sense was as I went along that the press basically
treated the matter as Republicans vs. Democrats, and all of my nice arguments
about ignoring the constitution and not being faithful to oaths of office and
all the rest of it was just rhetoric, that all had to be understood in the
context that I was a Republican and so was Dorothy Riley, and that the
Democrats had won the election, and this is what Kelly, the Democrat and
Blanchard, the Democrat and Soapy Williams and Mike Cavanagh and all the other
Democrats on the Court wanted to do, and you could talk until you were blue in
the face and you couldn't persuade the newspapers that in fact, there were high
principles at stake than just that to the winner goes the spoils. Nonetheless,
after this attempt at revving up public opinion, I finally concluded that my
only shot and my last hope was to try to lay a guilt trip on the Court and see
if maybe the justices themselves would back off, if they could appreciate the
enormity of what they had done. I announced at a press conference that I was
going to be at Court at the opening of Court in the March session. In the
meantime, I concocted a writ, an application for a writ which is probably not
been seen in the courts of this land in several centuries, but it was a
legitimate writ from the old common law called an Application for Writ of Coram
Vobis, and coram vobis means "our hearts", Whether it is coram vobis or ad
coram vobis, I forget. I think it is coram vobis, and it was a writ that was
sort of used in the old days as a last resort. You could call it the St. Jude
writ, you know, the case of the hopeless case, the patron saint of the hopeless
cases, but it was a writ that addressed itself to our hearts, that's where
the...the word coram means heart and vobis means us or our, so it was a writ
that appeals to our hearts, and it was an attempt to get the Court to review
this matter down deep in their own guts and re-think it. I filed it with the
clerk, and I don't know if I paid a fee or they didn't know what kind of a fee
you'd pay for such a writ. I think the clerk just accepted the writ and made
copies and delivered them to the justices, and so there I was asking the Court
for this writ, and of course, there was no procedure for me to appear to
anything like that, no Court rule that covered this situation, so just went and
sat in the courtroom as I had said publicly I would do, and somebody in the
press asked me...can that machine hear me if I talk loud as I walk?
Somebody in the press asked me what I would do if the Court did
not recognize me when I showed up and I said, "Well, I think what I will do is
simply sit underneath the clock and stay there until they see me". Well, I
didn't have to do that. When I got to Court that day, the first case was a case
in which George Bushnell, former president of the American Bar Association, was
counsel, so it was his case, and he was the first speaker, and I asked him if
he would allow me to take the podium, and he said yes. In the meantime, the
Court had met and talked about my writ and apparently had decided they were
going to listen to me, so Justice Williams who was then Chief Justice called on
me and I proceeded to speak. I'm now looking through some of my speeches to see
if I have my remarks on that occasion. I thought it might be here, but maybe it
isn't. I might be among my Dorothy Riley files. I had quite an extensive file
on this whole business. No, I'm afraid I don't have it here. It must be with
some other files.
Was that kind of a last salute, you might say, in this
Yes, I didn't...at that point in time, I realized that the
public campaign was not likely to succeed, that basically what I had to do was
make my pitch to the Court to try to persuade them to undo what they had done,
and if I was unsuccessful in that, I really didn't have much recourse.
The vote stood, after the Court settled its mind, stood 4:2,
didn't it? You remember, it had been 3:3 and Levin who had taken sort of a
straddle, through in with what became the majority.
Of course, it was 3:3 because Dorothy had recused herself from
acting in the cast, so there were only six justices acting, and you had
Brickley and Ryan on the one side.
Ryan, and who was the third.
It would have been Levin because Levin took the position that
was very different...
Yes, Levin had voted with Brickley and Ryan the first time
around to deny the writ or at least, not to grant the writ, so there being only
three votes to grant the writ and three votes not to grant the writ, the writ
was not granted.
And then over the weekend, Levin changed his mind.
How do you explain that or doesn't that require an explanation?
A person can change his mind in any kind of a legal proceeding, I suppose, or
was there something about this? His explanation, as I recall, was that is
intolerable to have this situation that then existed, and "so I decided to
break the tie and settle the issue into a clear-cut conclusion".
Of course, it was brought to a clear-cut conclusion the
Okay, that certainly...
Even though it was a 3:3 vote, the conclusion was clear-cut
because the law is that you have to have four votes to issue the writ and since
there were three votes to issue the writ and three votes not to issue the writ,
the issue did not writ. The matter was settled, and the case was over. As a
matter of fact, Dorothy Riley was in Mike Cavanagh's office on that following
Monday, and they had been colleagues together on the Court of Appeals. They
were now colleagues on the Supreme Court. They had just gone through this
traumatic experience in which Mike had voted against Dorothy to stay on the
Court. She was apparently conceding to him the sincerity of his position, and
he was trying to make her understand that it was not something he had against
her personally that caused him to vote as he thought he was obliged to do, and
they were sort of mending fences, and then Dorothy left and returned to her
hotel room. Within an hour, the clerk of the Court arrived with a piece of
paper and handed it to her saying that she was ousted from the Court. What had
happened in the meantime between the time that Dorothy left Mike Cavanagh and
the time she was ousted was that Cavanagh was summoned to Chief Justice
Williams' office and told that Levin had changed his mind and they now had the
votes to oust her, and of course, this meeting of the Court occurred at a time
when Justice Ryan was teaching at Cooley Law School that evening. There was no
scheduled meeting of the Court. He called, apparently, just to touch base to
see what was happening after he got out of class, were there any messages for
him or whatever, and then he was informed that this meeting was taking place,
and he promptly raced over to the Supreme Court chambers and burst into the
Chief Justice's offices where the others were sitting, and gave him an earful
of his opinion as to what the...the impropriety of what they were doing. The
whole story of the Dorothy Riley thing was so political and so filled with
those kinds of pure power plays with no procedure and no propriety, not even an
attempt to appear to be proper, just raw power. You've got the votes, shove it
down everybody's throat type of thing. It was an embarrassing chapter in the
history of the Supreme Court. No doubt about it.
The irony of it is, of course, two years later she ran again
and was elected, and defeated one of those that...
And defeated an incumbent justice who had voted against
(End of side 1, tape 6)
And I think the public perception was that that was a big part
of what the whole campaign was all about, the political race on that
Justice Brennan continues his discussion of Dorothy Riley's case
and his thoughts on its origin and motivations, including a discussion on the
selection process for Chief Justice.
I think Dorothy's decision to be quiet throughout that whole
thing was well taken.
And it certainly helped her in the election. At the time, I
wasn't that sure that it was well taken.
I think every where she went, people would bring it up, and
that was the better way for it to be brought up by somebody saying, "Well, now,
would you please tell us what this was all about?"
But she wouldn't. She wouldn't talk about it, and her view was
that she was going to be above the fray and as I say, it may have worked out
well for her. I recall, however, having had been very annoyed, for example...I
was annoyed at her counsel. She had Fred Buesser's office representing her in
the quo warranto matter, and I remember talking to Fred, Jr. or Fred, III about
it and being quite upset over what I thought to be a somewhat less than
aggressive attitude on their part about the defense. I think that was part of
their strategy was to keep her appearing very lady-like and very non-aggressive
and not all that assertive, but on the other hand, the argument about the
Supreme Court shall not have the power to remove a judge was never raised by
her lawyers, and I expressed some surprise about that. It cost me a couple
years of very long-standing friendship with Fred Buesser.
You know what struck me about this, if I may volunteer, here's
a political activity going on when Kelly...you know, the day after the
appointment, this was raised, and Blanchard wasn't even in office, and I'm
talking the validity of the extended appointment, lasting beyond the start of
the Blanchard gubernatorial period, but I thought if you're talking about
political forces and political rights and all that which was bubbling right
below the surface. This was not your standard lawsuit.
No, it wasn't, and I'll say this quite frankly - I didn't have
real hard evidence but I had some evidence, and I was convinced of it and I am
convinced of it to this day, that the genesis of that lawsuit was in the office
of the Chief Justice. The first drafts of the lawsuit were done by people
working for Soapy Williams, and it was shifted from there to the Attorney
General's office and from there, got massaged and came out as a lawsuit.
That's really something.
And the reason that Soapy was concerned about it was because
Soapy wanted to be Chief Justice. He had wanted to be Chief Justice for years
and in fact, had kind of stepped up to the plate on a couple of occasions and
then counted noses, and Mary Coleman won it so he backed away trying to appear
gracious, but he still wanted to be Chief Justice. This was his year, okay, and
he had the votes lined up and was ready to go. Now, all of a sudden, Blair
Moody died, and it was a new ball game. Milliken comes in and appoints a
Republican, and you've got Brickley, Ryan and Riley at that point and
Fitz would have been off in January.
He would have been off in January, but in December, Fitz was
still there and in fact, the four of them elected, because Mary Coleman had
left, elected John Fitzgerald as Chief Justice, and John was Chief Justice for
about a month or so. Two weeks is all?
Two months until the end of year.
Two months from the time of the election until the end of the
Let me just finish the thought. The concern there was that if,
after January 1, it was going to be three Republicans and the four Democrats
again, that the same stalemate that had existed which had caused Mary Coleman
to be elected, would operate to elect some other Republican. The fly in the
ointment than still being Chuck Levin who, himself, wanted to be Chief Justice,
and wasn't very fond of Soapy Williams at all to begin with.
At one time, Black, Gene Black in his fulminations against the
political reach into the Court of political forces, condemned the idea that the
Chief Justice should be chosen in this fashion by other members of the Court.
What observation would you make about that? He talked...he called it, I think,
an evil system that every time the number came up that it's time to elect one
again, that there were real serious problems. Does that make any...?
I do recall that was Gene's attitude. Gene was a populist on
some things. On other things, he wasn't in favor of self-government at all. My
sense of it is that democracy is the worst form of government except for all
the other forms of government. In terms of a selection process, I feel the same
way about selecting the Chief Justice as I do about the election of judges in
the first place. You can talk about all other kinds of systems or ways of
selecting a Chief Justice, and every one of them has problems. This one has
problems. The members of the Court select their own leader. Well, I guess
that's pretty good unless God's going to come down and appoint a leader for
them or the governor is going to appoint a leader which is certainly going to
be political, or you're going to rotate the leadership which is not going to
give you leadership at all, it's just a kind of interim secretariat
Chief-Justiceship. You could draw the names out of a hat, but you know, what
other method is there that assures that the person who is the leader of the
Court or who speaks for the Court, is the recognized head of the
operation...what other system is there that assures that that person has the
support of the people on the Court?
Doubling back, this business that you mentioned of the report
or your knowledge or whatever it was that you had determined to your
satisfaction that the original legal paperwork that resulted in the Court's
decision coming through Kelly's lawsuit originated in Williams' office. Is
that...I have never heard that before. Is that pretty good knowledge as far as
you are concerned?
(interruption in taping)
It was out and about, and I--
...inside information with respect to that. If I recall
correctly, and it's a little vague in my mind now, what it was was a memorandum
of some sort, a legal memorandum generated by one of his staff supporting the
idea that her appointment was improper or illegal.
Maybe not the first draft of the suit?
Oh, not necessarily the first draft of the suit but I'm saying
the genesis of the suit in the sense that it was the first time that the legal
arguments which ultimately became the brief filed by Kelly had been put down on
paper was the theory of that lawsuit was developed at that point. I think
that's probably true.
Well, is there anything more to say on the Riley episode?
No, that's really...
8. Justice Brennan talks about how the process and starting
Cooley Law School in Lansing came about.
Okay, well...then I would like you to talk a little bit about
the origination of the idea for Cooley Law School and how this entered into
your activity while you were sitting on the Court and then it caused some
friction later on and all that sort of thing. Would you deal with that for a
Okay. Of course, I had been Chief Justice. I went off as Chief
Justice in the end of 1970 and found myself with a good deal of time on my
hands. I was accustomed to working 16 - 18 hour day as Chief Justice, and
suddenly all I had to do was to take care of my own opinions and do my own
And file dissents. I had a lot of dissenting opinions to write,
no question about that. But even there, a dissenting opinion is not nearly as
much work as a majority opinion because you don't have to...you don't have to
do the original scholarship. You just sort of have to take a pot shot at what
the other person does, and say why his arguments or her arguments don't make
Sort of a counter-punch.
Counter-punch, which is easier. It's shorter, generally, and
there is not nearly as much discipline in the writing of dissents. Anyway, I
set about to build a kitchen in my house, and for about six to eight months, I
was very much involved in that. In due course of time...I can't tell you when
it was, but I used to get a lot of telephone calls from people who wanted me to
help get their sons or brothers or cousins into law school, and they'd usually
say, "Judge, I helped you in your election campaigns, and now it is time for
you to do me a favor. Have you got any connections at the university?" I would
make phone calls on behalf of friends and supporters and say to the dean of the
law school, "Can you do any good for this person?" or whatever. Typically, the
answer came back...I remember one time being told that there were 6,000
applications for 300 seats at the University of Michigan Law School, and it was
just a terrible crunch, and there wasn't a prayer of getting anybody in. One
particular time, I was calling a fellow back to tell him that I couldn't help
him. As a matter of fact, he is a bondsman out of Detroit by the name of
Charlie Goldfarb, Chuck Goldfarb, and we were having this conversation and I
said, "I can't help you". I think it was his brother he wanted to get into law
school, and I said, "You know what I ought to do? I ought to start a law school
up here in Lansing. We could really use one".
Just spontaneously, off the top of your head?
Just one of those off the cuff joking, half-joking comments,
you know, and he sort of laughed, and he said, "You know, you do that judge,
and I'll send you your first $1,000.00". So we both laughed and hung up the
phone. I sat there thinking about it and thinking about the crush of applicants
to the law school and so on, various law schools. I called in my law clerk,
then a young man by the name of John Gibbons, and I said, "John, what do I have
to do to start a law school?". He said, "I don't know". I said, "Find out".
This is 1971?
This is 1971, so he went and he came back in about an hour and
he said, "If I'm correct, judge, as I read the law, all you need to do is to
form a non-profit corporation". I said, "What do I need for a non-profit
corporation?" He replied that I needed three citizens and a $20.00 filing fee,
so I said, "Well, John, there's you and I, and I'll get a third fellow". I
called my friend, Louis A. Smith who was a local attorney, and I said, "Lou,
I'd like to start a law school. Would you like to be on my Board of
Directors?". He said sure, and I said okay.
What was the law clerk's name?
Just like it sounds?
Yes. Lou Smith agreed. I then prepared proposed articles of
incorporation for a law school to be called the State College of Law, and gave
it to John Gibbons to file over in the Corporation and Securities Division, and
John put up the $20.00 for the filing fee. The first thing that the lady did at
the Corporation and Securities Commission when she received the articles was,
seeing what had called for the creation of an educational institution was to
put the application for a charter in her drawer instead of routinely stamping
it and issuing the charter because she understood under the law that there were
certain requirements that had to be met and that the State Department of
Education would have to pass on this thing. Well, then we heard from the
Department of Education. I believe at that time that John Porter was the
Superintendent of Public Instruction, and the first thing they told us was that
we couldn't use the name "State College of Law" because it inferred that the
state had some role to play in our college, and that the word "state" was a
word of art in these things and the only time you could use the word "state" in
the name of a school was if, in fact, it was a state university or state
college. So that was fine. I had written a letter to Stanley Beattie.
How do you spell his last name?
He was the Chairman of the Board of Law Examiners, was he?
He was at one time the Chairman of the Board of Law Examiners
for maybe 17 years. He was an adjunct professor of law at the University of
Detroit and had taught me. I wrote to him and the other members of the Board of
Law Examiners talking about my idea that we should start a law school in
Lansing. I got a lovely letter back from Stanley. All of this is in a file
which I thought I could find in my drawer, but I can't. My secretary has it
someplace. He wrote back and said, "It's a great idea. You need $2 million and
a fine faculty". Of course, we didn't have the $2 million or anything like it.
So...well, I could truncate this story, but...
Excuse me. At this time, had you seriously began to discuss
this and think about who you could get to come and teach classes, or was this
still sort of a...?
I think at this point in time, when I first filed the articles,
it was my concept. If you'd have asked me what I really was thinking about, I
would have said, "Well, maybe John Fitzgerald and I and maybe a couple of other
judges would rent an old house in downtown Lansing". I'd put my personal law
library in it in the dining room and we would have 12 students, sort of like
Leland Carr, the old Circuit Judge had down here in Lansing, and if, over a
period of years, after I died, it would become a real law school, what a
wonderful thing to have been part of the creation of that educational embryo,
but what happened was the Michigan Department of Education appointed a
committee of scholars, and the committee of scholars took a very hard line with
respect to the thing.
What was the purpose of this committee? To ascertain what?
The purpose of the committee essentially was to ascertain, I
suppose, whether our objectives were legitimate. Whether in fact what we
proposed to do was legitimately an educational institution, I guess. They took
the position, and I think absolutely wrong, but they took the position from the
get-go that they would not approve our charter for filing unless we proposed to
conduct a law school that would be accredited by the American Bar Association.
Now, think about that. Here is an American state, one of the fifty states of
the American union in which we have all these freedoms and so forth, freedom of
religion, freedom of speech, freedom of assembly. In Michigan, we specifically
refer to freedom of association...and we're being told that we cannot start a
college, an educational institution unless we are approved to do so by a
private organization, much as though if you had wanted to start a church and
you were told by the Michigan Church Commission that you can't start a church
unless you get approval of the Council of Churches or something like that. Now,
I can't conceive of any activity, short maybe of starting a church or a
newspaper which is holy, of course. There's another example. Suppose you tried
to start, incorporate a newspaper, and the Michigan Newspaper Commission told
you you couldn't have a charter to start a newspaper in Michigan until you were
approved by the Associated Press. That would be a perfect example. Well, that's
what they told us. Well, I suppose I could have argued from then until doomsday
about the propriety of their saying so, but what I did was I simply said,
"Okay, you want an ABA approved school? We'll give you an ABA approved school",
and I proceeded to get the ABA regulations and contact the American Bar
Association and get an outline as to what we needed to do in order to operate a
school that was approved by the American Bar Association. The first rule was
that you have to have a full-time dean. You had to have six full-time faculty
members, and you had to have so many books in your library, and those were the
basic rules. There were a lot of other things, but those were the hard
quantitative things that you had to meet. I said, "That's doable", so our
prospectus began to grow every time the committee had a meeting and they put
more and more demands on us, we built our prospectus and said, "Yes, we'll do
that. We can do that. Yes, we'll do that", so pretty soon, within a period of
months, the prospectus had now grown to be quite a substantial thing that we
intended to do, and that was to create a law school that would be approved by
the American Bar Association. During that whole period of time, Stanley Beattie
had suggested after we were told that we couldn't use "State College of Law",
he had suggested that we use the name Thomas Cooley, and that was a good one,
and we amended the articles of incorporation, petition for charter to change
the name. We finally reached a point where the Department of Education said,
"Well, now you're looking pretty good here, but the statute says in order to
get a charter that allows you to grant degrees over and above the Bachelor's
degree, you need a university charter, and a university charter, under the
statute, you must have at least $1 million in capital to start a university",
and I did a little research and I came back to them and I said, "Well, that's
true. That's what the statute says, but the statute also says that the State
Department of Education may make rules and regulations whereby they extrapolate
guaranteed annual income against the $1 million" so that if you had an income
of a certain number of dollars, they would say that takes care of the $1
million requirement, and the State Board of Education had, in fact, adopted
such regulations and the regulation simply was that they would treat income at
a rate of 33:1. I think that was it, so that all we had to do was to prove that
we had, that we would have a guaranteed annual income of $30,000 in order to
meet the $1 million requirement. $30,000 x 33 would be $1 million, okay. I
said, "Well, it's very simple. We're going to have...here are the names of our
applicants. We're going to have a first class of 75 students in it. They're
going to pay us $50.00/credit hour, so we're going to get so much dollars from
each one of these. In the very first term, just by June, we will take in
$42,000.00, and so we're going to have a guaranteed income of substantially
more than the $30,000 from our students".
You jumped ahead and got 75 applicants. How did that
Okay, we'll come back then to the dollars, the dollar problem.
Somewhere along the line...who was the old Lansing reporter? I can see his
Was he a...
Starts with a "C".
You don't mean Elvie...?
Bill Kulsea wrote an article "Judge Brennan to Start Law School
in Lansing". I have to say that amuses me because at the same time that I was
in the process of starting the law school here, Michigan State University was
trying to get a law school out at the university, and every time there would be
a little story in the paper, "Judge Brennan to Start Law School", "Judge
Brennan Files for Charter", "Judge Brennan does this"...it would be a little
tiny article and every time Michigan State University was even
suggested..."Study to be Made", "Study Recommended", nothing happening, no
steps, no progress, just another speculative story about somebody saying it was
a good idea to have a law school at Michigan State University. They'd get a
headline, and we'd get these little squibby stories, but the little squibby
stories began to be noticed by people, and I would get letters from people
-"When you start your law school, Judge, I want to go there". Pretty soon, I
had 300 letters from people, and I had a standard form that I had my secretary
send out - "The Judge thanks you very much for your interest. If and when the
school is started, you will be sent an application, an opportunity to
At this time, you're still operating out of your back pocket,
so to speak?
Well, I'm operating out of my office as a Justice of the Court.
We have no letterhead, we have no nothing. It's just me doing this thing there,
Where are we in the course of calendar time, now? 1972?
No, this would be 1971. In 1971, the first letter that I
did...the first time anything is written on a piece of paper was my letter to
the Board of Law Examiners in May, 1971, and shortly after that, I believe in
the spring of 1971, I filed the Application for Charter, and the thing I'm
talking about, this business with the Board of Education and the Committee of
Scholars who were representatives of the other law schools in Michigan; that's
who they were...two from Detroit College of Law and two from U of M and two
from Wayne State plus a couple from the Board of Law Examiners...this all went
through the fall and winter of 1971 and these negotiations about the $1 million
and so on, and I was telling that story. We needed to prove $30,000 of income,
and we satisfied them that we would have enough students to do that. Then they
came back with one final necessity, and they said, "Okay, you've got the
$30,000. You can prove that you've got that, but there's another regulation
which says you must have at least half of your guaranteed annual income paid
and in cash. Now you need $15,000 cash. No other excuses". We didn't have
$15,000 in cash. I had opened a bank account at the Michigan National Bank with
a $50.00 check of my own money, and I said to Bob Fisher who was then at the
bank, "This is to start a law school with. If we never start the law school,
any money in this account with go to Detroit College of Law", so I had, in
fact, created a trust account for legal education, and my $50.00 plus $500.00
from a Detroit lawyer by the name of Hugh Ross, and I can't tell you why I got
$500.00 from Huey. He was an old friend, and I probably mentioned it to him at
a cocktail party or something, and he said he would send some money and he did,
and $1,000 from the Clark Equipment Company in Buchanan, Michigan though Dick
McCormick who was then the general counsel over there, so $1,550 was all I had
in the bank, and it was these three contributions. When the Board of Education
said I had to have $15,000, I called up Bud Stoddard, then the president of the
Michigan National Bank, and I said, "Bud, I need $15,000 to start a law
school", and he said, "Judge, you've got it. Don't worry about it", and I
shortly had, from Michigan National Bank, a letter of credit for $15,000, and I
filed the letter of credit with the Department of Education, and they felt that
covered our situation in terms of having the $15,000. In due course, a vote was
taken by the State Department, Board of Education. Jim O'Neill was on it, used
to be at Ford Motor Company, a Republican. Tommy Brennan was on it.
Thomas J. Brennan.
Oh, yes. I remember him.
Out of Detroit, a Democrat who is now on the Court of Appeals.
He was on it, and I remember that night. I came up and kind of cracked open the
door and gave Tom the signal and he came out and talked to me and "How's it
going?" and this and that and so forth. There were a lot of speeches made.
There were some people on the Board of Education who were deathly opposed to
all private education. I forget her name...Marilyn Kelly who is now a judge was
one of the people who was negative...Anita Miller was the one who was
absolutely death on private schools and independent schools. She was absolutely
opposed to the organization of a law school, but suffice it to say we got the
votes. We got the thing passed, and we got the charter issued. The charter was
Did you get five, five votes out of eight?
Whatever it was. I forget the number. Whatever we needed. The
charter was issued on 6/19/72. I went to see Bob Fisher, and I said now we can
use the $15,000. He said, "Bud Stoddard didn't mean to give you $15,000. He
just meant that if you go broke and you're $15,000 in the red, we'll make it
up, but in the meantime, you have to make it on your own".
We rented this building, this upstairs of this building for
Had you begun to get static from the other schools at this
No, other than the static that we got from the other schools in
the process of the charter being issued.
Well, was there fierce resistant at that point or?
Fairly fierce resistance. As a matter of fact, I seem to
remember that one of the people on that committee was Roy Profit from the
University of Michigan, and I remember it this way because there is a certain
poetic justice or injustice to it...I was told that the committee had voted and
I saw the report that the committee had voted against issuing a charter to
Cooley Law School. The committee said absolutely not, and here was there
reasoning. They said...
This is the committee, not the Board, right?
This is the committee of scholars appointed by Porter...I just
used the name...Dick Porter.
John Porter...this was the committee of scholars and after much
deliberation, etc., etc., they came back and said, "What Judge Brennan proposes
to do is valid. If he does what he says he is going to do, it will be perfectly
fine and legitimate. However, we don't think it's feasible. It won't work. I
won't fly. It's a bumblebee. The wings aren't big enough. It won't work and
therefore, we recommend that no charter be issued because it is not a feasible
proposition". That's when I became angry, and I wrote a blistering letter which
I cannot find. It's gone. It's lost in my archives, but I wrote a very strong
letter to John Porter and I think, I recall that the thing was made public and
in fact, there was something in the press about it, but I said, "It's nobody's
damn business whether it is feasible or not except those of us who are involved
in the enterprise. We are the ones risking our reputations and our time and our
energy and our resources to create this institution. If it isn't feasible, if
it won't work, it will be our failure and nobody's business but our own".
"Moreover", I said, "this whole business of a committee of scholars appointed,
representatives of the other law schools, to decide whether we should be
allowed to exercise our constitutional right to form an educational
organization, is ludicrous. It is a conflict of interest to have those people
sitting in judgment. It would be like having to ask every dairy in town as to
whether you can start a dairy or whatever." So Roy Profit blew his stack. Roy
is a wonderful man with high integrity, etc., etc., and it would never occur to
him that he might have a conflict of interest or that he might do anything
wrong, and I'm sure in his whole career, nobody ever said publicly at least,
that he did anything wrong, and he didn't take to it very kindly, and he wrote
me a blistering letter. I can't find that either. I know it was written, but he
insisted that there was nothing improper at all about the committee's decision
or these deliberations or...anyway, it was against that background that we had
this meeting with the Board of Education where Tommy Brennan went to work for
us and O'Neill and the others backed us up and managed to get the thing passed,
but it was a very tense and a very controversial thing at that point in
Was that the high hurdle?
No, not by a long shot, but that was the first hurdle, and we
got by that in the spring of 1972. Then things got quiet for a period of time
because after we had gotten the charter...but after all, they had said it
wasn't feasible. They had said it wouldn't fly. They had said we couldn't do
it, so then they were stuck with their own predictions, and I'm sure they
believed their own predictions and so, "All right, Brennan's got a charter, but
he'll never start the law school. It will never work", so they sort of paid no
attention to us, and during the rest of 1972, we did the things. We rented the
building. We prepared the application. We contacted the 300 people who had
written to us. We hired teachers and ordered law books and went out and got
chairs and blackboards and other things to get started with. In January, 1973,
we began with our first class. It was a night school class with 75 students.
Still, hardly anyone paid any attention to us, but there was a little story in
the paper that Cooley had opened and congratulations and that sort of thing.
Then the opposition began, and I think the principle source of the beginning of
it was a professor of law at Wayne State University whose name escapes me now.
It's Maurice something.
Yes, that would be it.
Had you ever crossed his path in your earlier career?
No, except I think he may have been on the committee of
scholars. I think he was one of the people on the committee of scholars, so he
had some lingering annoyance over the fact that we outmaneuvered them on that,
but he proceeded to write some sort of a...oh, let me back off. I don't think
that happened. Still, nobody paid any attention to us in January, but in April,
1973, just three or four months after we started the school, Thomas Cooley Law
School got a letter unanimously signed by all the members of the Michigan Board
of Law Examiners that our school was reputable and qualified and that our
graduates would be able to take the bar examination in Michigan. Now, that was
a wonderful story how that came about. We had a dinner here in Lansing. We had
then organized our board, and we now had a dozen or so people on the board, and
we had a dinner for them at Walnut Hills Country Club, and Millard Rudd who was
then the consultant to the American Bar Association who was out of the
University of Texas came here to speak to us, to tell us about what we needed
to do to become an ABA accredited school, and I brought in a mystery guest to
speak and participate in that dinner meeting that I didn't tell my board who it
was, but it was a man named Thomas M. Cooley, II, who had been dean of the
University of Pittsburgh Law School and had been a faculty member there for a
number of years and who was a grandson of Thomas Cooley after whom our school
was named. Well, we had a wonderful evening, and we heard from Millard Rudd
about all the pitfalls and the problems of getting ABA accreditation, and we
heard a nice talk from Tom Cooley who told us how his grandfather would have
been proud of what we were doing and all this sort of thing, and he was just
generally very encouraging. That was on a Friday night, and I think early the
next morning, I put Professor Cooley back on the airplane, but I remember I had
breakfast the following morning at the old Jack Tar Hotel with Stanley
Beattie...and oh, also our guests invited to this thing were the members of the
Board of Law Examiners, so Stan was one of them, and Doug Roche, whose father
was Chairman of General Motors...I forget his father's name but Doug was a
young attorney at the Dickenson, Wright law firm in Detroit.
R-o-c-h-e, but his father was Chairman at General Motors. Doug
is a nice man, but hadn't been on the Board of Law Examiners as long as Stanley
was and wasn't the same...didn't have the same confidence that Stanley did in
what we were doing, but I had prepared a resolution of the Board of Law
Examiners, "Be it resolved that Thomas M. Cooley is reputable, qualified under
the statutes"...etc., etc.,..."and their graduates can take the law exam", and
I asked Stanley to sign it. "Certainly", he said, "no problem", and he signed
it. I said, "Now, Stan, we're going to have breakfast with Doug Roche, and I'd
like to see if we can get Doug to come in on this with us", so we had breakfast
and a long chat and back and forth...or maybe Stanley signed it at breakfast
after talking with Roche; I don't know, but anyway, I came away from that
breakfast with two signatures, Doug Roche and Stanley Beattie. The next day, I
drove...it was a Sunday...I drove to church at Jesu and went out to Leonard
Hyman's home in Oakland County. Leonard Hyman was a third member of the Board
of Law Examiners, and I brought him the original document and he signed it. I
then came back to Lansing on the following day which was a Monday and went over
to Stuart Dunnings' office here in downtown Lansing, and Stuart signed it.
Then, in the meantime, I had called on the telephone Dick Spindle who was the
fifth member of the Board of Law Examiners, and a young lawyer from Grand
Rapids, and I sent my son, Tom to Grand Rapids with the original document to
have Dick Spindle sign it and he did. By supper time on Monday, I had all five
signatures on that resolution. That really was what started Kelman and company
going because at that point in time, now it was no longer an unfeasible little
experiment, store-front law school. We were here to stay. Our graduates were
going to take the Michigan Bar examination, even if the ABA didn't approve us,
we were an existing law school whose graduates could become lawyers. As far as
I was concerned, that was the real assurance that we were off and running.
Shortly after that, Kelman wrote his memorandum in which he accused me of a
conflict of interest.
That's your first horn sounded on that subject, right?
(End of side 2, tape 6)
Yes, other than the sort of prophetic use of the phrase
"conflict of interest" coming out of my pen when I accused those people on that
board of having a conflict of interest, so when the phrase came back later on
and hit me in the head, well, I thought to myself, "You live by the sword, you
die by the sword", so I suppose one ought to expect it. But in any case, Kelman
wrote this, and this was his theory, if you remember...his theory was that I
was a Justice of the Michigan Supreme Court, and that I was using the power and
prestige of my office for personal gain by creating this law school and that I
had used the power and prestige of my office to lean on the members of the
Board of Examiners who, in effect, work for the Supreme Court to get them to
approve the law school. What's amusing about that is that it is half right
because yes, I was a Justice of the Supreme Court. Whatever power and prestige
and respect that office carried, I did lend to the creation of a law school. I
mean, I went out front. It was Judge Brennan's law school that Judge Brennan
was starting. That was why people wanted to come to school, and certainly there
is no question in my mind that one of the reason Stanley Beattie and the rest
of those guys signed that resolution was that former Chief Justice of the
Michigan Supreme Court was one of the organizers of this law school, and there
were other judges and people of prestige. Anybody we got on the board had to be
somebody. We wanted people with good reputations, with good standing in the
community. Why? So that their respect and standing in the community would
reflect favorably on the school and would help the school, so of course, my
prestige was being used to help the school, but that was no conflict of
interest. It was not for personal gain. It was to accomplish something for a
charitable educational institution. At the very same time, I was doing this,
Bill Richardson who was the Chief Justice of the State of Hawaii was using all
of his influence and power to start a law school in Hawaii which later
9. Justice Brennan continues recounting the creation of Cooley
Law School and issues raised by others concerning a possible conflict of
interest with his occupation and his later decision to leave the court to run
the law school. He then discusses its aim for practical scholarship, how it
compared to other top law schools at the time, and issues with diversity
So I was just finishing the thought that in fact, not only did
Chief Justice Richardson assist in the creation of the law school at the
University of Hawaii, but it is now known as the William Richardson School of
Law of the University of Hawaii, so the involvement of judges in legal
education is historic, it's traditional, it's very proper. It is laudatory. It
is not something that is bad for a judge to do.
Cooley and Campbell were leading professors at the infant U of
M school, weren't they?
Certainly. I am fond of saying that Cooley was the first dean
of University of Michigan Law School. I don't know if that is literally true,
but I think he was the first professor of the Law Department, and Kelman ought
to have known better than that, but yet he made the claim.
Was he carrying water for somebody other than himself?
Well, I don't know. I'll say this - that there were a lot of
other people to get in on the water carrying because the next thing that
happened was, among other things, Stanley Beattie told me that he was one time
attending a meeting of the Harvard Alumni Club in Detroit at the Detroit
Athletic Club and he was there accosted by Wade McCree who later became
Solicitor General of the United States and a judge of the VI Circuit Court of
Appeals and all that who immediately confronted him, accosted him and wanted to
know, "Stanley, how come you are approving Brennan's store front diploma mill
up in Lansing?" Stanley, of course, defended what he had done. The next thing
that happened was that Stanley Beattie claims that...I don't know how well you
knew Stanley. He had a wonderful phony Harvard accent that he used to put on.
He was just an east-side Detroit kid that grew up but he went to Harvard and
learned how to talk fancy, but he would say things like, "I was summoned to
Armageddon, I was summoned to Armageddon", and that was the time he was asked
to come to Brighton, Michigan to lunch at the Canopy Restaurant with then Chief
Justice Thomas M. Kavanagh, then dean of the University of Michigan Law School,
the labor guy, St. Antoine, Ted St. Antoine and then dean of Wayne State
University Law School, Don Gordon and...
Don Gordon, and for some reason or another, John Swainson who
was then a justice of the Michigan Supreme Court, so that group of six people
was gathering and had invited Stanley Beattie to meet with them to explain why
he did what he did. Now, the interesting thing about all of this was from the
very first moment that I even thought, even thought of starting a law school. I
think it was my first letter to the Board of Law Examiners. I had shared with
my colleagues on the Michigan Supreme Court. I shared with them every step of
the way everything we did in terms of applying...the development of the
prospectus, the application for the charter, everything we were doing, and as a
matter of fact, it was very common when I would come into the conference room
for a meeting of the Justices of the Court for one or more of the justices to
say to me, "Well, hi, Tom, how's the law school coming?", and I would give them
the latest blow-by-blow as to what was happening. I think, in fact, that some
of them thought it was kind of amusing, that it was pretty hopeless and foolish
and silly idea that I had and I'm sure behind my back, there was a certain
amount of tongue clucking over this goofy idea of Brennan's that he was going
to create a law school out of thin air, but nonetheless, there were no secrets.
And to his everlasting credit, Tom Kavanagh, when this Armageddon meeting
occurred, was not persuaded that he needed to anything or should do anything.
He said what Brennan does on his own time is his own business. "He's not doing
anything wrong and we're not going to take any position on it at all".
With the apparent hope that he would become a lever to get your
enterprise off the track?
To get me to drop the thing, to get me out of it. To get me to
leave the law school alone, you know, and just drop it, and either to stop
doing it or at least, turn it over to other people and get out of it. That was
the gist of it. Ted St. Antoine, the dean of the University of Michigan Law
School had written me a long letter, a two page letter in which he opposed the
starting of the Cooley Law School, he would always oppose it. There was a need
for a paralegal institute if I wanted to train legal secretaries or legal
research clerks or something like that but not a real law school, and I replied
to him, and I said, "You're a nice guy, Ted, and I'm going to save your letter
because some day, you'll want to eat your words and I'll serve it up with a
pate foie gras at a Bar Association Meeting", or something. I forget what I
said. It was some wise remark like that, so the attempt was made there to get
the Court to take a position to get me to drop the enterprise. I later recall a
luncheon at the Lansing City Club with Chuck Levin and Tom Kavanagh, Thomas G.
Kavanagh at which Levin...
Would this be now in the middle of 1973 or later?
This would be probably...we're now into 1973. We're into maybe
spring of 1973 at which Levin told me and Tom Kavanagh apparently supported the
concept that I really ought to get out of the law school and there was trouble
abrewing and that I was going to take some hits. I didn't know what those hits
were, and Levin was very vague as to what they were, and I didn't know how he
had any knowledge as to what the hits would be. At that point, that day, as I
remember as I look back on it, it was my understanding, it was my perception
that what they were trying to do was to tell me on behalf of the Court that the
Court was going to back me off, and I told them I didn't think so. I said, "I
don't know what votes you guys are counting, but the way I count the Court, the
Court isn't going to make me back off at all" and so maybe I missed the track
because maybe they were trying to warn me about some other things, bad things
that were going to happen. What I later learned, probably you know this better
than I, was that Kelman went ultimately to the Detroit Free Press and was able
to persuade somebody - I'm assuming Ludtke or someone there, that the Court was
not doing what it should do, that in fact, Brennan was operating some kind of a
store front illegitimate bad thing law school, though I don't know why an
educational institution is ever a bad thing, but they seemed to think it was,
and that it was the public sacred duty of the Detroit Free Press to call this
matter to the public's attention and shoot this enterprise down. Ludtke calls
in one of his best hatchet men, Remer Tyson and sends him up here to work me
over. We have, first of all, a meeting at the Savoyard Club, I believe it was,
down in Detroit, and something makes me think that Bruce Donaldson was present
as a go between or a host or whatever, but nonetheless, we had a good long chat
On this subject, with...?
With Remer Tyson in which Tyson asked me lots of questions and
so on and very probing questions about the law school and my relationship with
Did he set up the lunch? Did he ask you to appear down there
and talk with him?
I believe so, though I'm not sure that maybe there
wasn't...that Donaldson was maybe an intermediary there because Donaldson was
the only one I knew that belonged to that club unless Tyson did. I don't know
why I went there. Something makes me think there was somebody else at the
How do you spell that place, Savoyard?
I don't know.
Okay, my problem.
I don't know, so then...out of that luncheon, we made kind of a
tentative date that he was, Tyson was going to come to Lansing. I wanted to
show him what we were doing. As a matter of fact, I remember it must have been
around the spring or early summer of 1973 because we had just about that time
gotten a lease on the Masonic Temple building. We were leasing the basement for
our library and we had an option to buy the entire building, so he came up
here. I showed him everything. I showed him our books of account. I showed him
our files, anything he wanted to see. I took him through the Masonic Temple
building. I was so proud of that building, what a wonderful school this is
going to make, and I was showing him, "Now, here, we're going to be able to
have an auditorium and here, we're going to have this nice big classrooms, and
over here will be this and over here will be that", and I mean, I was just
reveling in the whole thing. Of course, I was, I suppose, hopeful that we'd get
some positive publicity. This was a school starting. It was a nice thing, a
good thing for the community and so on. Tyson began writing his articles, and
it was obviously clear to me from day one that his whole thrust was to kill us,
and everything he wrote was negative. Everything he wrote was an attempt to
paint me as some kind of an opportunistic character who was stealing money from
young people under some false pretext that they were going to become lawyers
some day and that I was just using my position as a justice of the Supreme
Court, to cash in, to line my pockets and this was nothing but Brennan's
retirement fund or get-rich-quick scheme or something like that. Despite the
fact that I received no salary for working. I had received not a dime of
compensation for organizing the school, for anything that I had done. I came
down here on Sunday and kept the books. I mean, I did it in long-hand myself.
We put on the fundraiser with Raymond Burr that spring, came into town, and we
raised money for the so-called Founder's Society, and we tried to raise some
money. We didn't raise a lot but we got some. I was granted by the school, by
the Board of Directors, an expense account of $10,000 just to pick up for my
travel and the other things I was doing, and whatever of that I didn't spend, I
would have had to pay income tax on, and in that sense, you could say I
suppose, I was getting $10,000, but that was an expense account if I...I'd have
to look up my income tax returns, but I guess it that I accounted for at least
that much in terms of expenses that I had in connection with the law
Did this figure in Tyson's article? Do you remember? I don't
think I ever knew that he had been sent here until I read the paper...it was a
Sunday, wasn't it?
I don't know what day it was when it started, but it became
then a series of articles, and it was one thing after another that...I mean, it
was like he wouldn't let go of it. He was always coming up with a new quote
from somebody or a new attempt at a revelation, etc., etc. Then, of course, he
went and got a quote. He went and got a quote from Milliken in which Milliken
said he thought that I should choose between either the law school or the
Court, and in fact, the Detroit Free Press, I think, had written an article, an
editorial demanding that I resign from the bench or from the school or
something like that. I forget what it was.
Where are we now? How far into the year?
We're into summer of 1973, and the Detroit...the State Journal,
to its everlasting credit, came to my defense and said, "Hey, what's all this
about a conflict of interest. Brennan isn't doing anything wrong. We've
reported every step of the way everything he did to create the law school.
Nobody was complaining of the fact when he opened the law school in January.
There wasn't a word about any conflict of interest or anything. We just think
this is a tempest in a teapot. There is nothing to it". In some sense, in this
local community, it wasn't so ill-regarded, but the Free Press kept after it.
Then, at some point along the line, it became, whether because of a press
conference I had or something, the fact that my son was working in my office in
the Supreme Court came to light and now, not only conflict of interest but
nepotism was another word that could be used against me, and that "Judge
Brennan was guilty of nepotism. He had hired his son". Well, I hired myself as
a gopher, at a gopher's wages, whatever it was, and candidly, that was a
mistake that I was not aware of. I was not aware that there was a specific
canon of ethics that judges shouldn't be guilty of nepotism, they shouldn't
hire their relatives. There is. I mean, it's a no-no. You're not supposed to do
that. Of course, when I realized it, I told Tom he was through, wrapped up, and
so he quit. It was not anything that I was embarrassed about. I personally felt
it was a good faith thing that I did but it was obviously something for which I
was criticized and could be criticized.
Which brings me to interrupt and remark that I saw you quoted
somewhere as saying in this general broad context, "Around our house is the
saying the a conflict of interest is better than no interest at all".
That's right. I used that. I also used the line, "Nepotism is
better than having unemployed relatives", but part of that was a certain
bravado, when you're getting buffeted about by the newspapers, to, you know,
laugh it off, because there isn't anything you can do about it when you're
criticized in the press. Somebody said you can't fight a newspaper unless you
own a newspaper and then you can fight back.
I think you had probably been criticized in newspapers sometime
Oh, sure. I had been many times, many times with considerable
impact, but nevertheless, that was a pretty serious blow in the sense that my
board began getting nervous. My board began getting nervous and one of the
things, I mean, people with reputations. We went after people who had
reputations and public posture and so on, and even those who weren't public
people, one of the reasons they were on the board was because it was such an
honor to stand alongside Justice Brennan, you know. "I'm on the board with
Justice Brennan. I know him by his own first name. We drink together". I mean,
there is this element of importance by association. Well, if this person, this
important person with whom you're associated suddenly starts getting bad press,
you want to start putting some distance between yourself and him real quick,
and that began to kind of surface a little bit. "Isn't there some way you can
kill all this bad press?" I began to think in terms of I had to do something to
resolve this thing. Well, at that point, I was running the law school, and we
began to think if we could get another dean for the law school, so that...
Did you then have the title "dean"?
Yes, I was the dean or acting dean. I think it was dean.
Were you salaried as a dean?
No, I received. As I said, the only thing I was getting was
$10,000 in expenses, so we began to look around for somebody that we could put
in as a dean. We had hired a man as one of the first full-time professors at
the law school who had an extensive history of publication and legal books and
so forth and a fairly well known name in legal circles by the name of Roger
Needham, and I didn't know him all that well. I knew he had been practicing law
in a small office and was quite eager to take on a teaching position with a
regular salary, and so I concluded that the best quick fix was to appoint him
as dean, and then I could be Chairman of the Board, and I could back down and
just be a figure in the background and take some of the heat off the law
school. I, in fact, asked him if he would do it, and he said yes, and the board
all agreed, and we were ready to take that action, at our meeting, I believe,
in September of that year, which would have probably been about the middle of
September. I'm still talking now in August, early in August. About the third
week in August or second week of August, I took my son, John back to the
seminary outside of Columbus, Ohio. He was in the high school seminary there,
and on the way down, we stopped at a little restaurant, a Country Kitchen
restaurant which was kind of a cutesy place...Dutch Kitchen, I guess it was
called, a cutesy place with the cutesy little accoutrements and decorations,
but when we got in there, the floors were dirty, the service was bad, the food
was cold. It was just a poorly run operation and we got back in the car and we
were on the road for about 50 miles and finally I turned to my wife and we had
talked about how awful this restaurant was and I said, "You know, there's an
example of somebody with a good idea and establishes a successful restaurant,
and then they try to franchise it and go national, and they don't have the same
kind of management at the branches that they do at the home office, and the
thing falls apart". And then I'm thinking and thinking silently, and then
finally I break the silence again and I said, "You know, that's what I'm afraid
is going to happen to the law school, that they're won't be somebody there who
knows how to run it the way I foresee it being run and it will fail. I think my
duty is clear.
I am going to leave the Court and run the law school". She was
a little concerned about it since I still had a year to go on my term and
probably a pretty certain re-election as a justice of the Court, so it would be
a long-term safe job that I would be giving up to throw in with a neophyte
institution. Anyway, then...and you know the story from there. We called a
press conference when we got back, late in August, and announced...
Is it that early in the year, August?
In August, yes, that I was going to leave the Court at the end
of the year. I wasn't leaving the Court then, but I was going to leave the
Court at the end of the year and January 1st, I would become the full time dean
of the law school.
I remember vividly how you had those tables set up and ...
And the whole family there...
Yes, and played the kids in all dressed up, just had a bath,
and I need to bring something up here, though. You remember how we started the
recital of this whole chapter of the school and how it began. Now, you, at no
point yet, really expressed in clear, firm terms the truly serious concept that
you were...to my view anyway, that you came to have or that underlaid the whole
business. You remember how at the start somebody called you up and "What the
hell, I'll start a law school of my own".
It sounds kind of flip, doesn't it. It sounds almost
Well, it sounded like a snappy comeback, like you really
Well, a couple of things you have to understand: 1) I had
wanted to teach law when I left law school. I wrote to the University of
Chicago about getting a job down there, and they didn't take me seriously. I
had taught at the University of Detroit, not in the law school, but in the
undergraduate school, and I taught a course called the "American Constitution",
and I enjoyed teaching, and really, as I said, my concept as I began to flush
it out in early 1971 was not to have a great big full blown law school but
really to have a little evening part-time, makeshift operation which would be,
you know, a few students sitting at the feet of Socrates. Here, you're going to
have some justices of the Supreme Court who were going to have a very
one-on-one or one-on-five or one-on-twelve relationship with some people who
wanted to study law, and frankly, I thought that was great. It was very
practically oriented. They were talking to people who were in the real world of
judging and practicing law and so on and they were passing the torch of
knowledge to the next generation in a very practical sort of setting.
There came to be, though, as the events unfolded, some dialogue
that you had, as I recall, with St. Antoine wherein the word "elitist" figured
very prominently and you were going to start a school for, as I recall your
phrase, juryman lawyers, the guy that could go up about the storefront in
Ironwood and carry on a law practice, if that was the way the cards fell.
Precisely so, and I mean...but the articulation of the dream,
the articulation of the mission of the school was really left for the time that
be began to develop this prospectus because that was one of things they asked,
"What is your mission?". Well, I said, "Isn't it enough of a mission to have a
law school, a real law school?". I mean, I went to law school. Nobody told me
what the mission of the law school was other than to educate people to become
lawyers. Does it need more of a definition of mission than that? How much do
you have to say about it? As time rolled around, the concept that it was a
populist law school, that it was a law school dedicated to practical
scholarship in the law; those things became the articulation of a mission which
really was sort of unspoken at the outset. It was more a reflection of the
kinds of people we got involved, and what their attitude about learning and
education was, more that than any stated mission on which everyone signed off
and said, "Yes, I agree with that statement of the purpose and that I will do".
Our purposes under the corporate charter were simply to operate a law school,
to be fully accredited and those kinds of words. We didn't talk about it as
being populace as opposed to elitist or whatever else, and I suppose...not I
suppose, I can tell you flat out, there have been people come to Cooley Law
School who are as elitist as anyone in the world. I mean, we don't run a
personality check on these folks, and we don't ask them whether they agree with
our philosophy about whether you are a populist vs. an elitist. We had one guy
in here...oh, he was maybe somewhat populist, but he was a member of the Mensa
Society, okay, so he was intellectual with this big brain power, whatever kind
of numbers you have to blow on the IQ to be a member of the Mensa Society, and
he was one of our students. He sent me a letter. He wanted to get involved in
the credit union here, wanted to be on the Board of Directors on the credit
union. He gave me his background which was good. He had been a banker before he
came to law school and so on, but he mentions in there that he was a former
member of the Mensa Society, so when I interviewed him, I said, "Well, Brian, I
see here you're a former member of the Mensa Society. What happened? Did you
get dumber? Did you lose your ability..."
Yes, "Did you flunk out? That's hard to do." He laughed and he
said, "No, as a matter of fact, I sort of gave up on those people. They're all
either psychiatrists or cab drivers", so it was a curious way. No, I...the
philosophy as we developed it really was, first of all a reflection of how
those of us who were involved in the law school felt about legal education and
it was a philosophy that grew out of the response that we had from different
people. I mean, the people themselves who came here began to define the
institution, and our definition of the institution drew from the people who
were here, the Roger Lanes, the old Detroit newspaper, Free Press guy who goes
to law school in his senior years, the gal, Jacqueline...I can't think of her
last name...Jackie...one of the very first classes...lived across the street
from Wayne State University's Law School, and came up here on the Greyhound Bus
every day, one and a half up and one and a half back. She couldn't get into Wayne State
University Law School, but this place gave her a chance to go to law school,
and she was a good student, and she has done well, but basically what we were
doing was to offer people a chance to go to law school who couldn't otherwise
go. The reasons they couldn't otherwise go were myriad, because they were stuck
in Lansing and couldn't commute all the way to Detroit was one of the main
reasons in the early times. We had a lot of people with high academic
credentials who were just here in Lansing and always wanted to go to law
school. We also had people who had applied to every law school in the state or
around the midwest who couldn't get in and came to us, and were capable of
doing the work.
Excuse me for interrupting, but did you become very acutely
aware and disapproving of the practice that particularly at the University of
Michigan Law School, where I think you recited some figures not so long ago
where if there are three or four hundred slots for new students, there are
thousands of applicants and those applicants are screened pretty much in quite
a rigid way in terms of their scores on the aptitude test, or do I have it not
quite right? Do you see what I mean?
No, I think there's no question that you have it right that
that's what they do.
And so here's a person of great merit. Let's take a minority
guy that was sort of held back for a while and he's bursting out into the clear
in an intellectual way and he wants to go. He can't hit 800 or whatever the
heck it is on that test, therefore, he is shut out. My example might not be too
good, but what do you have to say about that?
Well, your example is a good one because it is not just the
University of Michigan, although the University of Michigan is a top school in
the country. When they name the top law school in America, University of
Michigan is generally among the top ten that are mentioned. How do you get to
be top? Well, the definition of a law school generally comes from three things:
your physical plant which includes library, buildings and computers and
whatever else you have that is impressive, you know. That's sort of the least
important prestige factor, but that is a factor. Your faculty which is in some
circles regarded as a very important prestige factor. Do you have faculty who
are well-known, who are well- regarded, who are the man who wrote the book type
of thing. Are they being tapped all the time by Washington to go down there and
be advisors and take leave of absence from your faculty to be the head honcho
or whatever. Are they being drawn from former clerks of the United States
Supreme Court and all that stuff, and that's probably a secondary though very
important basis on which "prestige" of law schools is established, but in the
law school world, to the extent that there is a pecking order of better
schools, the key factor is always what are your LSAT scores.
Is that true, still true?
Yes, absolutely. Absolutely. As a matter of fact, the operative
buzz word in educational circles is how selective are you. They don't use the
word "elitist", how selective are you, and a more selective school is the
harder school to get into. If a school is impossible to get into, it's a
wonderful school. You know, the less chance you have of getting educated at
that institution, the better that institution must be, the less chance you have
of getting into is. So only the top students, only the most brilliant students,
only those who least need to be taught anything are admitted to your
institution. That makes you the finest educational institution in the world.
Now, I don't understand that. It's like having a hospital that only takes the
healthiest people. This is a wonderful hospital because nobody ever dies in it
and nobody ever dies in it because nobody ever comes there who is sick.
Everybody who goes there are people who are in wonderful good health and say,
"I go to Mayo Clinic", but then, of course, I had to pass many physicals
locally before I ever got to Mayo Clinic because they had to know that I was
perfectly clear before I ever got there. I mean, that, to me, is a ludicrous
measure, but it is the standard measure of excellence in educational
institutions. How smart are your kids? How smart are your kids? If they're the
smartest kids in the world, then you've got the best school. Now, given that,
the schools, for whatever reason, I suppose for a combination of things, all
aspire to be that, to be the best by that definition and therefore, what you do
when you go to fill your class, you rank all of your applicants according to
the academic criteria, which in this case in the LSAT score or some combination
of LSAT and undergraduate grade point average, typically, that's what you're
going to do creating an index score. You rank them according to that index, and
then you go down the index as far as you have to go to fill up your class.
Maybe in the case of the University of Michigan, 11% of the way
or something like that?
It's never any further than that. In the case of the University
of Michigan, let's take on LSAT scores which now are between 10 and 49, they
won't take anybody less than a 40 and probably they're only just reaching down
to get maybe the last few people to get a 41 or a 40. Everybody else is above
that probably. Now, that's great, but one of the things that happens when you
do that is you almost certainly assure that your entire class is going to be
Caucasian or Oriental. I mean, there aren't going to be many Blacks in that
class or very few by the numbers. There are going to be very few ethnic
Italians, the children of the artisans, the children of the police officers,
the people who are the first college graduate in their family, the Poles, the
Lithuanians, people who are second or third generation here in the country.
You're going to have a lot of Jewish people, a lot of them because they're
going to be at the top of the list, so that's the kind of student body you're
going to have.
You're aware of all of this very keenly, and you were...
I've been in this business for 20 years. I've seen it. I've
read, you know...I've studied. I've seen statistics and what I'm giving you is
just the assimilation of a lifetime of doing and being involved in this
business, and maybe I'm just spitting out a lot of prejudices that I've
developed through the years, but I think the statistics would bear out what I'm
trying to tell you, so the problem, then, is that if all you're going to do is
go down so far in the barrel, you're going to have a selective student body. It
is not going to be a diverse student body. It's going to self-select according
to these standards. So, now what are you going to do? You've got to have
minorities because you're denying the opportunity for education to minorities
so what do they do? They dip down into the barrel for only particular people.
They're going to run down from an index of 80 to an index to 40 or 50 and it's
only going to be for a Black guy. It's only going to be for a Hispanic. It's
not going to be for a white guy. Now, what's happening here? You take some kid
whose academic credentials don't hold up to the rest of the class, and you
bring him in because he was an Eagle Scout and because he worked hard and
because he was an athlete or whatever else, he showed leadership...you fuzz it
all over with all of these artificial criteria that are not the criteria that
you would normally use to select people, but you build a case that this person
is acceptable because of all these special things, and then you bring him in.
Now, he's not going to do well in school. He can't keep up, so you don't want
to flunk him out because now you're only flunking out the Black kids and now
your academic attrition becomes discriminatory because it's always the black
kids that flunk out, so you get him a tutor. Now the Black kid comes and he
sits in the dean's office and he carries a sign, and he says, "It's unfair. You
make me go to tutorial classes. Nobody else has to go to tutorial classes. It's
racially discriminatory that I have to go to the tutorial classes", so now you
don't make him go to tutorial classes, but you don't want to flunk him, so you
give him a little extra consideration on the examination. You'll let him write
an extra paper. You'll let him have whatever else, you get subjective about
your grading system. Now, you end up giving two kinds of diplomas on the stage
at graduation, the regular diplomas which have been earned according to the
standards of the school, academic standard, and the special diplomas that are
being awarded to those special students that you've given a special admission
and a special academic standard to as they go through school. So now, what have
you got? You've got a graduate out there and everybody knows there are two
kinds of diplomas. The trick is can you guess which one, which kind of a
diploma this graduate of the University of Michigan who is applying for a job
at your law firm, which kind of a diploma does he have, first-class or
second-class? You've got only one thing to go on, the color of his skin, and
that's the guess you make. This guy probably isn't as well educated as that guy
because this guy has a black skin. So you perpetuate prejudice. You perpetuated
discrimination and you have demeaned this individual who could easily have gone
to a school with white kids who had a 50 index or a 51 index who were no
smarter than he was, who would have participated in the class. He would have
fought for grades and competed for grades against those other kids. He would
have gotten a first class diploma, and he would have gone out and been able to
do with it just like the other kid next to him. My argument is that the elitist
system has created more problems that it has solved, and the problem as far as
I'm concerned is the elitist system. It's the idea that educational
institutions are only for the top selected people. Now, I suppose Harvard, the
University of Chicago, the private schools, if they want to start a private
school and only educate the Mensa Society, that's their business. It's private
dollars, private time and energy - let them do it, but certainly public schools
shouldn't do it, and certainly there ought to be some private schools like
Cooley whose mission it is to have an open door and to teach everybody who
wants to come, everybody who has got any reasonable chance of getting through.
Anyway, this is not history...
The last thing, the last couple of sentences, though, are the
affirmative statement of what you are doing with respect to Cooley against this
background of what was happening elsewhere, and you, in effect, if I understand
it just in a summary fashion, opened the doors, give these birds a chance that
were not in the top 11% when they applied at the University of Michigan, and
they're good solid law school material.
...were journeymen, yeoman, whatever you want to call it. It is
interesting, though, among the people we get who come in here, maybe without
the top credentials, are people who do very, very well in law school, who pass
the Bar examination on the first shot. You know, in the history of Cooley Law
School, anybody who graduates from around here with a "B" average or better has
like a 99.9% chance of passing the Bar examination on the first try.
A "B" average is something to get, though, in your school.
Okay, but that's likely that they didn't have a "B" average in
undergraduate school, so what makes them think they're going to have a "B"
average in law school. It's harder than undergraduate. But, here's the story I
want to tell you about the elitist. I wrote a letter to Chief Justice Berger
when he was Chief Justice and I said, "Mr. Chief Justice, you ought to have a
national competitive examination for U.S. Supreme Court clerkships and have
everybody have a chance to be a clerk in the Supreme Court, and if they do well
on the examination, fine, then give them an interview, and it's an honor just
to be on the list". So he writes me back and he says, "Well, I've always
selected my law clerks by having a committee of my former law clerks do the
screening and give me...". Well, naturally, they were getting people from their
own colleges and their own law schools. I then contacted this man who was the
PR man for the Supreme Court, and I said, "In the last so many years, how many
clerks have you had? What schools did they go to?", and he gave me the last 15
or 20 years, and 75% of the clerks in the United States Supreme Court came from
eight law schools. I wrote back to the Chief Justice, and said, "I'm sorry to
bother you, Mr. Chief Justice, but these are the statistics your own people
give me that 75% of the clerks came from eight law schools. It cannot be that
eight out of 175 law schools in America are educating 75% of the top legal
quality, and the Court is being denied the services of these top people because
of the system of selection that you have, so I urge you to consider the
competitive examination", and blah, blah, blah.
Did you get a response?
(End of side 1, tape 7)
Two months, it took him, or three months to answer to me, and
he finally came back with some double talk which said he was going to appoint a
committee and even though it wasn't probably completely fair and logical, it
was still traditional, and they were going to continue to do things the way
they had done.
Justice Brennan talks about case regarding the apportionment of
the legislature in the 1970s, having his portrait presented to the Supreme
Court in 1980, and his activities since leaving the court in 1973.
Now, we're going to another side. This is side B of tape 7,
Justice Thomas E. Brennan and Roger Lane with him in his office, and today is
February 14, 1991, and we're nearing the end of the audio taping of Judge
Brennan. How about apportionment. We haven't had anything to do with
Okay, I just got the case out, Roger, to sort of refresh my
recollection, and the case I participated in is in 387Mich442. It was In Re the
apportionment of the legislature. To set the scene, the situation was that the
constitution of the state of Michigan established an eight member apportionment
commission consisting of four Democrats and four Republicans. I'm not sure
whether they were chosen by their respective parties or whether they were
nominated by the governor...
By the parties.
By the parties? Well, in any case, they represented the two
parties, two major political parties, and their job was to come up with a new
map of the state of Michigan showing the senatorial and legislative districts
for the state of Michigan. Every ten years when the census was taken, the
commission met and every ten years, the commission managed to stalemate
predictably because of the split between four Republicans and four Democrats in
the membership of the commission. They did so in 1972. Under the constitution,
if the commission was unable to agree on an apportionment plan, the members of
the commission who had drafted proposed apportionment plans would take their
plans to the Supreme Court and the Supreme Court, under the constitution, would
decide which of those plans most nearly conformed to the constitutional
requirements. What happened was that the Republicans and the Democrats both
submitted plans to the Michigan Supreme Court. The Republican plan had a
smaller ratio of...a small divergence within the population of each of the
districts than did the Democratic plan. The way these things were presented,
the ratio was spelled out as 1.003 or 1.005 or 1.007:1 so in effect, the
largest district would be 3 or 5 or 9:1/10,000 larger than the smallest
district or maybe the average. I forget how that was calculated, but it was a
very minimal standard. We, the Court, during the course of the pendency of the
litigation that came to us under the constitution, allowed the Democratic side
of the apportionment commission to amend their plan and submit a new plan which
had a still lower ratio of divergence among the population of the
This happened, as I understand correctly, after the formal
declaration of deadlock that triggered the Court's role?
Exactly. It happened after the case had already been brought to
the Court, and if I am not mistaken, it was some sort of an order allowing or
permitting additional time or holding the case in abeyance while this was
accomplished. The Democrats then came in with a report that had, in fact, a
smaller numerical divergence factor. The Republicans then asked for time to
revise their bid, their program downward, I suppose, to see if they couldn't
produce something that was even closer to dead even. The Court refused to give
the Republicans time to do that. Having then done so, the Court took under
consideration the case and heard the arguments of counsel and concluded that
our duty as a Court to decide which plan most nearly conformed to the
constitution was a very mechanical duty. It was simply to look at the
divergence ratios and pick the lowest one.
What did you call that? I think you had a phrase for that.
Doctrine of relative, was it?
Well, I had a phrase for the concept, what I called "new-born"
constitutional concept of relative constitutionality because the constitution
of 1963 said that the Supreme Court shall chose the plan which most nearly
complies with the constitution. The Supreme Court shall determine which plan
complies most accurately with the constitutional requirements. That's what the
constitution said, and I said in my dissenting opinion that "the constitution
seems to contemplate that we apply some new-born standard of relative
constitutionality". I went on to say, "I never heard of one law being more
constitutional than another. Constitutionality is like pregnancy. Either you is
or you ain't". That was the comment about relative constitutionality. But then
I went on to say, "Nevertheless, that's our job. That's what the constitution
tells the Court to do, so we have to try to do it", and then I conclude, "Well,
if you're going to pick the lowest bidder, the lowest population ratio, that's
at least an objective standard that every one can understand. It is easy to
apply. It will work". I pointed out that it doesn't mean anything. It literally
doesn't mean anything because the ratio is so tiny, so minuscule that either
the census itself isn't that accurate or even if the census were that accurate,
just the normal change in people's residences that would occur in a matter of
weeks and certainly months between the taking of the census...we were dealing
with the 1970 census and this law suit was in 1972, so two years had gone by.
There was no question at all but that the districts as they existed out there
in reality on the real estate in the state of Michigan, the people living in
those districts were different from the numbers of people who were in the
census in 1970, certainly by substantial numbers as opposed to these tiny, tiny
fractional differences, so it had no substantive reality to it, but it was
still, if you're going to play games, it was a game you could play that would
be fair to everybody or it could be fair to everybody. Then I pointed out,
"Okay, if what you're going to do is simply let the contract to the lowest
bidder, you're going to simply allow the political party that comes in with the
lowest population ratio to set the districts, then at least you ought to take
sealed bids. You ought to give both sides a chance to give it their best shot
and go from there". I suggested that if, in fact, they both came out with a
perfect plan so that there was a ratio of 1:1, dead even, then you would then
refer to the number of political units of government that were divided in the
apportionment plan and use that factor to break the tie. What I was looking
for, quite frankly, was a way for the Court to be an impartial arbitrar between
the two divergent forces on that commission and simply to set some rules that
applied to both of them that we could enforce impartially that would help them
to get their job done and function on behalf of the people in the state of
Michigan. Subsequent to that decision and in years since then, I developed a
rather intricate...not really intricate but comprehensive approach to the
apportionment problem which built on what I said in my dissenting opinion. In
other words, instead of a process whereby both parties would make a complete
apportionment plan and then submit them in sealed bids, I had come up with an
idea that a legislative districting map could be drawn seriadim in an adversary
proceeding so that you...like you play a chess game...you could have one party
draw the first district, then the other party draw the next district, and pass
the map back and forth between the two parties with certain time limits like
you would in an international chess match, and certain parameters of legality
that would be established by the Court. In other words, the Court could say
that the ratio shall not be more than 1:1.009 or 1.006 or whatever you wanted
to do, and that the district must be contiguous to the district already on the
map, or that the district cannot leave an island that is surrounded, all
various little rules that you would develop. You could even have a gerrymander
rule that would prohibit a district from being too long or skinny or whatever,
and ultimately achieve a map which was drawn through the adversary process
where the Court's function would be to be the honest cop between the two
political parties. That never caught on, and I'll tell you why, I think, in my
judgment. The drive for political power and the desire to control the machinery
of government is so intense and overpowering that it sweeps almost all attempts
to be non-partisan out of the way. You just don't have Republicans or Democrats
who want to have a fair system of apportionment. Active Republicans want the
state apportioned to benefit the Republicans and active Democrats want the
state apportioned to benefit the Democrats. You can talk until you're blue in
the face trying to get them to come together on a system which is fair to both.
They don't want fairness. They want to win, and unfortunately, that win
mentality infects the way they feel about the Court, and so they conclude that
the Court's role as the arbitrar or the ultimate authority in the area of
apportionment, their conclusion was that the Court was thrust into the
Republican vs. Democrat milieu and they went out and elected people, nominated
people to run for the Supreme Court and they gave money to assist people to get
elected to the Supreme Court on the basis that they wanted to have votes on the
Supreme Court when it came to apportionment because that decision would
establish control of the legislature for the next ten years, and you saw the
Democratic nominated members of the Court vote for the Democratic plan, not
only vote for the Democratic plan but in my judgment, prostitute themselves by
giving the Democrats one last chance to revise their plan before they heard the
case. The Republicans weren't a whole lot better in terms of their chauvinism
because the sequel to this case I cited in 387Mich was that the Republicans,
having lost in the State Supreme Court, then went to the Federal Court in
Detroit, and I think maybe Jon Feikens got the case but it went to a Federal
District Court judge in Detroit, and oh...I'm sorry...I'm getting ahead of
myself...before they went to the Federal Court, they came back to our Court
with a petition to throw the whole commission out, with a petition to determine
that the commission was unconstitutional and you'll remember that that argument
ultimately carried the day in the 1980's.
It had one vote in that book that you've got open in front of
you, and that was from T. G. Kavanagh, and he paid dearly for it, remember,
four years later.
Well, to a degree, I think, yes, although I don't think that
was the real thing that did it.
No, but he did take the position in that case.
Let me just review that for a moment.
...that the commission was unconstitutional.
Yes, he concluded...he said, "We have no proper function at all
in this matter..."
That was pretty big heresy.
But he quoted Justice Souris who said in the 1964 case, "Having
concluded that the apportionment and districting provisions for both the Senate
and the House were violative of the 14th amendment, it was my conclusion that
Section 6, Article IV which established the commission, likewise had to be held
void. Section 6 in my view is so dependent upon the continuing validity of the
preceding sections by which the commission's duties were specified and
expressly limited that it could not survive alone", so Souris had written in
the 1964 case that the commission should be thrown out. T.G. Kavanagh agreed
with him in 1972, so that opinion had been expressed at least on a couple of
different occasions and ultimately, as I say, carried the day, but after this
decision was expressed and...now, let's just flip back through the opinion for
a half a moment and see where we were...after that opinion was
expressed...we're talking May of 1972,...let's see...T.M. Kavanagh, as Chief
Justice had written the majority opinion. Adams, Swainson and Williams
concurred, so he had four votes. Okay...the Republicans came in after this case
and wanted a re-hearing and wanted it on the basis that the commission should
be thrown out. I don't know who they thought was going to change his mind
unless they felt that if it got to be 3:4 that somebody would, I don't
Adams was a short-timer, then, wasn't he? He only had a few
months to go in his term...
Yes. He had the rest of the year. It was May, so he had the
rest of that year. But in any case, they came back and they wanted the
re-hearing and they wanted to get it on the basis that the commission ought to
be thrown out. I voted to deny the re- hearing.
You paid for that, didn't you? Didn't you...weren't you, when
you ran subsequently in the primary...
For the United States Senate in 1976...
Weren't you denounced by some of your...?
I was denounced, among others, by a man by the name of Keith
Molin who was a functionary of Governor Milliken and it was the first time it
had ever dawned on me that there were people in the Republican party who
thought I had done something bad by voting my conscience and my view of the law
in a case, and I was pretty naive, I guess, not to realize that as far as the
politicians were concerned, there is no such thing as judicial decisions. There
are only favorable and unfavorable decisions as far as their interests are
Specifically in this subject area, right?
Oh, yes, and this thing...this was not even regarded as a
judicial matter. This was, you know, who are you and where are you coming from?
So, that speck ogre was raised and talked about. I don't know that it made any
difference...when you say I paid for it, I don't know that it made any
difference in terms of support I got from the Republicans. It might have.
That's very possible, I suppose, but in any case, I made the decision that I
did. They later went to the Federal District Court, and the feds also denied
Was it a split vote? Do you remember? Three judge court,
Out of Detroit? Yes, they must have gone to Cincinnati, and it
may have been a split vote down there.
I think Ted Swift handled that, didn't he? I seem to remember
something about that.
It's possible. I don't know whether he was...but anyway, that's
the story with apportionment. It's never a pleasant bit of business because it
is so political and it always leaves scars in terms of the Court and the
relationship among the justices and so forth. Yes, I see that the Foster Swift
firm represented some of the commissioners. It doesn't say Ted Swift...Peter F.
McNenly was counsel on the record, anyway, in the arguments in our Court.
Anyway, that was that. What else?
Well, just one last word on apportionment. Now, in 1982...this
is getting beyond your...
(interruption in taping)
Can we turn it off just for a...
Well, I'm going to withdraw the suggestion about the 1982
aspects or the 1992 of apportionment...
Well, in I believe it was July of 1980, a portrait of me was
presented to the Michigan Supreme Court, and on that occasion, there were a
number of speakers. I've embarrassed the president of the State Bar of Michigan
spoke on behalf of the Bar. Lieutenant Governor Brickley spoke on behalf of the
State of Michigan, I guess, and brought the greetings of Governor Bill
Milliken. My son, Thomas E. Brennan, Jr. spoke on behalf of the family, my
family, introduced them and all. Then Judge Richard M. Maher who was then a
judge of the Court of Appeals was introduced, and he spoke about the years that
he and I were in law practice together with several other people, and then Mike
Devine who was my administrative assistant when I was Chief Justice spoke about
those years and his recollections of some of the things that we had done and
accomplished, and thereafter, Louis A. Smith was introduced, and he spoke about
the years that I was associated with the Thomas Cooley Law School. Finally, at
the conclusion of that, the portrait was unveiled and Justice Ryan commented on
behalf of the Court with respect to the portrait and my being there, and
finally, I was given an opportunity to say a few words on the record. I made
the comment that I had never known of an Irish wake where the corpse got up and
spoke, and I also said that "I confess that I was somewhat amused to fancy
myself to be the youngest ghost to haunt the bench and Bar". I had been called
the youngest Chief Justice in the history of the state and so forth, so I found
myself being the youngest ghost to haunt the bench and Bar. I also made the
comment that it was particularly flattering to realize that I was the only
living former Chief Justice whose picture was being hung in the Court chambers.
I had presided at the last session of the Supreme Court in the old Capitol on
the third floor, and I also presided as Chief Justice in the first session in
the Supreme Court in its present quarters in the law building, so I had, as I
mentioned, a special affinity for that place. I concluded my comments with a
paragraph that I have read and re-read a number of times and thought so often
how well it expresses by feelings about my own life. You have to remember that
I was 31 when I was elected to the Common Pleas Court. I was 33 when I was
appointed to the Circuit Court. I was 37 when I was elected to the Supreme
Court, 39 when I was made Chief Justice, and, well, only 43, I guess or 44 when
I resigned from the Court to start the law school, and when I was elected to
the Supreme Court at the age of 37, my friend Dick Smith from Bay City called
me up the night of the election and he said, "Well, now remember, Tommy, my
boy, early ripe, early rot", and I thought about that. But anyway, against that
background of having risen to what is, I suppose the top of our profession in
this state, Chief Justice of the Supreme Court at the tender age of 39, I said
this, "I cannot sit down without a public acknowledgement of my gratitude to
almighty God for the life he has given me.
To have lived in the United States
of America in the middle of the 20th century, of all nations and of all times,
the most hospitable to freedom, progress and human happiness, to have been born
and to have resided in the state of Michigan, of all places on this earth, the
most beautiful and bountiful, inhabited by good and decent people, alive with
activity and beaming with hope and opportunity, to have been blessed with
loving parents, a devoted wife and children, caring teachers, stimulating
colleagues, trusted counselors and loyal friends, to have been privileged to
read the law, that jealous mistress of the intellect which teases the mind with
truths half-revealed, logic tempered by experience, and the promise of touching
from time to fleeting time the incomprehensible form of justice itself, to have
enjoyed the incomparable gift of time in such abundance of event-filled days
and hours that I can stand here today, listening to the echo of my own
footsteps. These unearned blessings have come at the hand of a generous
Creator, not through any merit of mine but through his grace and to suit his
purpose, which it shall ever be my goal to serve as best I can". You know, I
think sometimes as I re-read that, and try to give it the feeling, the sense of
involvement that I had at the time I wrote it, that it would do me well to read
that every day. It would do me well to remind myself of how blessed I am and
how happy I ought to be, content I ought to be, but it is funny. I've gone on
to do a lot of different things, started the law school. I have been busy here
now for 17 - 18 years. In the process, I had lots of flirtations with different
things. I was involved with a committee for constitutional reform, and I chased
that butterfly for a while. I ran for the United States Senate. I ran for
Lieutenant Governor which was the craziest thing I ever did, after having
achieved what I had achieved, to kind of go back...I might as well have run for
dog catcher if you think about it, but I've, in the last few years, gotten
involved in computers, of all crazy things, and have learned a lot about the
whole business of electronic communication and what those machines are capable
of doing. One of the things I did with the computer just as sort of fun was I
created a little program which I call mood check and the mood check is a thing
that I did at first just sort of to tease my wife a little bit, but I listed a
whole bunch of words, every one having either a positive or negative
connotation, and I tried to set them in pairs, so I had on and off, up and
down, in and out, happy and unhappy, fat and thin, pressured and relaxed...all
of these different words, and then I scattered them so that the opposites did
not pair up as you saw the list, and then I created this program which asks the
reader and operator of the computer to punch a key representing 0 - 9 as you
feel that word describes your mood at the moment, so if you see the word
"unhappy" and unhappy describes exactly the way you feel, you give it a 9. If
it doesn't describe the way you feel at all, you give it a 0. If you're a
little unhappy, you might give it a 2 or a 3. If you're not very unhappy at
all, you might give it a 7 or 8, and just do it quickly and sort of
responsively as these words flash on the screen, and then I have a calculation
built into the computer program which will take all of your positive responses
and divide them into the difference between your positive responses and your
negative responses so that if every response you make is a positive response...
let's say you have...and it doesn't make any difference whether you score it 3
or 9, what really matters is whether...is the ratio of the difference to the
total, so if, for example, your positive points total 180 and the difference
between your negative points and your positive points is also 180, so you gave
a 0 to every negative word, you would get 100%, so you're feeling, your mood is
100%. You couldn't feel better. You feel great.
Top of the world.
Top of the world, but every time you shade it, every time you
say you're a little unhappy or a little this or a little that, it comes down. I
have run this thing with some of our employees around the school here. I've run
it with members of my family, and it is fascinating to see what kind of numbers
people get. The happiest people, the most positive, get the job done, do it
cheerfully, agreeable, etc. sort of folks, my secretary is one for example, had
a 93% or 91%. Stephanie Greg, our Director of Admissions who is a very
positive, very warm, outgoing person which was one of the things that we wanted
in the Admissions Office, somebody who made an excellent, friendly impression
on people...she got a 93%. My daughter-in-law, 91% or 92%, Tom's wife. She is
one of these bubbly people, always get the job done, can do, never too busy to
run an errand for you or do whatever you ask her to do and so forth. On the
other hand, some people who work here have gotten some very unhappy scores.
There is a lady here whose husband is in prison, who has an elderly invalid
mother living with her, dependent upon her, teenager daughter who is pregnant,
a teenage son who is kind of unemployed and so forth and dependent on her. She
is deeply in debt, etc. She took the test, and did so poorly on it that she
didn't even leave it on the machine. She took it off the computer. Reputedly, I
heard from other people because this wasn't an exercise that the employees were
required to do. We were just sort of doing it for fun, but I heard from other
people that her score was a -25%, so she really was unhappy, but other people -
59% here, 28% here, and different scores, and as I began to match them up, I
said, "Well, yes, some of these folks aren't too happy". My score, and it
doesn't seem to make any difference what my mood is or how I try to fool the
machine, if I get into it and I take the thing with any sort of integrity at
all, my score will invariably be between 65% and 70%. I am about 2/3's happy.
Even today, I am about 2/3's happy, and I look at the other people around the
office and in the family who score about as I do, and my sense of it is that
there's a little antsiness, fidgetiness about us, that there is more to be
done...there is something going on. Sometimes I'll be driving with my wife and
tapping my hands on the steering wheel of the car, and she says, "Can't you
just relax? Calm down", because my mind is going a million miles an hour and
I'm thinking...I'm a person who doesn't sleep very well. Like last night, I was
probably awake off and on two or three hours during the course of an eight hour
period in bed, but I'll wake and sleep fitfully and then I will be thinking of
things during the night, sometimes get up and write speeches or letters during
the night or make "do" lists for the next day, things that I want to do to
remind myself, and when I see a list of words and I see the word "unsatisfied",
I know that unsatisfied is a negative word. I put it in there as a negative
word. You're not supposed to be unsatisfied. You're supposed to be satisfied.
If you're happy, you're satisfied. If you're unhappy, you're unsatisfied. Every
time I see that word, I say to myself, "Yes, I'm unsatisfied about a lot of
things, and I don't think that's so bad to be unsatisfied. I'm going to give
myself a 4 or a 6, you know". I think the sense of being incomplete,
unfinished, sort of antsy...there is work to be done, there is something to be
accomplished, not a bad sense, and really in terms of real human happiness, I
think it probably is an important factor. You know, without backing away from
one whit or comma of what I said to the Court in 1980, that I am thankful to
the Lord for all of the blessings I've had, and I think one of the blessings is
to be a little unsatisfied.
APPENDIX Editor's Note: The dialogues entitled "Interview with
Thomas Brennan, October 3, 1990," are appended to Volume 2 of the Historical
Society transcripts, mainly for their content relating to the Thomas M. Cooley
Law School. The founding and development of this institution by Brennan
immediately followed his service on the Michigan Supreme Court and established
Brennan as an authority in legal education, and the interview material thus is
considered pertinent to his judicial service. By the state constitution and
statutes, the Supreme Court, through the State Board of Law Examiners and other
agencies, oversees training and discipline of the legal profession in Michigan.
A predecessor of Brennan, the late Justice Leland W. Carr, had operated an
informal law training program for attorneys while an Ingham County Circuit
Court in Lansing. It is even considered noteworthy that former Justice Brennan,
as a legal educator, finds significant influence on national economic policy
resulting from the Federal government role in encouraging debt financing of
professional training for lawyers.
This marks the end of the Brennan tapes, particularly tape