The Brennan Legacy: The Art of Judging

Abstract

What does a judge do when he or she decides a case? Benjamin Cardozo posed this question in 1921 and answered it in what has become a classic of American legal literature: The Nature of the Judicial Process. Drawing from his wealth of scholarship and experience as Chief Judge of the New York Court of Appeals, he described the ingredients that enter "that strange compound which is brewed daily in the caldron of the courts." Cardozo's analysis and philosophy examined the accepted definition of the judicial process: What courts do and should do, and how judges reason and should reason in deciding particular cases.

We paraphrase the broad question put by Cardozo three-quarters of a century ago, in the context of the Brennan philosophy of law, and attempt to answer these questions: What did William J. Brennan, Jr. do when he decided a case? What was the the Brennan "Art of Judging"? Is there a legacy from this art and, if so, who are its beneficiaries?

Keywords: Brennan, Supreme Court, federal courts, courts, judges, judging, judiciary, jurisprudence, judicial process, Aldisert