Off-the-bench speeches and writings by Supreme Court justices are not rare. With a few exceptions, notably the iconoclastic Justices William 0. Douglas and Hugo Black, it is rare for justices to use these opportunities to inject themselves into partisan political controversies of the day. A number of factors contribute to this reluctance: the need for judges to maintain at least an illusion of objectivity, the need to assure the public (and rival political institutions) that the Supreme Court is not an overtly political body, and the desire to reinforce the deference accruing to the “cult of the robe”, to name just a few. Moreover, the Supreme Court’s history has taught all its justices about the political risk to the institution in involving themselves in avoidable conflicts. This wariness in their off-the-bench behavior is thus understandable as a system maintenance function.

Yet, on October 12, 1985, Justice William Brennan felt compelled to speak about his views on the Constitution, not merely with professional or judicial detachment, but with the passion of a committed partisan. In an address at Georgetown University, Brennan attacked those who insisted on a constitutional jurisprudence true to the intent of the original Framers. Such intentionalism, according to Brennan, was “a view that feigns self-effacing deference,” but “in truth it is little more than arrogance cloaked in humility.” Furthermore, “one cannot help but speculate that the chorus of lamentations calling for interpretation faithful to ‘original intention’. . must inevitably come from persons who have no familiarity with the historical record.”. . .

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Glenn A. Phelps & Timothy A. Martinez, Brennan v. Rehnquist: The Politics of Constitutional Jurisprudence, 22 Gonz. L. Rev. 307 (1986-87).

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