William J. Brennan, Jr., has retired from the Supreme Court. In three decades on the nation’s highest court Brennan did more, perhaps, than any other American politician except for Lyndon Johnson to promote the agenda of the liberal left: the antiwhite racism of the “Jim Snow” system, radical feminism, the reduction of the authority of the police to combat crime, the liberation of obscenity, and the confinement of religion to a constitutional ghetto. The means for accomplishing these ends? The massive expansion of federal power in general, and of the power of the federal courts in particular, at the expense of the lawmaking authority of Congress and the state legislatures.

At least Johnson went to the trouble of persuading Congress to pass laws. Brennan, J. and the majorities he assembled in the heyday of the Warren (really the Brennan) Court simply grandfathered their nostrums on the Constitution. “He simply is one of the most important figures of the latter half of the 20th century,” Stanford law professor Gerald Gunther gushed to Newsweek. Among the legacies of this world-historic liberal statesman:(the exclusionary rule, which forbids the use of evidence gathered during a warrentless search; relaxed rules governing press libels of public figures; and the strict “one-man, one-vote” standard for legislative redistricting. Thanks to these Warren Court decisions orchestrated by Brennan, criminals find it easier to walk free on technicalities, able people who do not want every detail of their lives reported by the press have abandoned government service to plain-vanilla nonentities and bold-faced deviants, and federal judges and government attorneys draw and redraw state and congressional districts with as much concern for local self-determination as the dynasts who partitioned Silesia. Among Brennan’s final gifts to the American people are the latest opinion protecting desecrators of the flag, and another recent holding that the federal government may engage in racial discrimination in awarding broadcast licenses, as long as it discriminates against white people.

“At the core of the process of government erected by the framers—unwieldy, imperfect, wearisome, sometimes maddening—lay a profound vision of justice, and [it is] the duty of the Court to make that vision a reality for the least of men,” the presumably wieldy, perfect, and never wearisome Brennan wrote last year. “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.” If the explicit provisions of the Constitution conflict with its “vision of justice,” its “great principles,” as divined by a committee of lawyer-sibyls, then so much the worse for the Constitution. “The fatal constitutional infirmity of capital punishment is that it treats members of the human race as nonhuman, as objects to be toyed with and discarded,” says Brennan. But the Constitution expressly allows capital punishment, as its references to capital crimes and “jeopardy of life or limb” in the Fifth Amendment show. If we accept Brennan’s theory, then the Constitution is—unconstitutional. This is not broad construction; it is not construction at all; it is oneifomancy.

“Justice delayed—till the Justice resigned,” conservatives may observe with pleasant anticipation. Although the liberal triumvirate on the Senate Judiciary Committee, Kennedy, Biden, and Metzenbaum, may try to “bork” David Souter, Bush’s nominee to replace Brennan on the Court, Souter has left no “paper trail,” having said and written almost nothing controversial or significant between law school and the age of 50. Looking for the most unobjectionable nominee he could find, to prevent the confirmation hearing from turning, like those of Bork and Ginsberg, into an auto-da-fé, Bush has found Bartleby the Scrivener. The sailing still may not be smooth; the fact that conservative Republicans are comfortable with the nomination may impel abortion activists and advocates of reverse racism to concentrate their fire, in the absence of inflammable public statements, on any alleged character defects they can find, or invent, in the life of this retiring New England bachelor.

Whatever the fate of the Souter nomination, time is on the side of Republican opponents of leftover Warren Court judicial activists (Thurgood Marshall and Harry Blackmun are both in their 80’s and failing). Once the Rehnquist Court has firmly shifted to the right, after this or the next appointment, liberals may be forced to save some dubious “achievements” of Brennan and the Warren Court by recasting endangered old opinions in legislation: new law is but old precedent writ large. The Kennedy-Hawkins quota bill is precisely such an attempt to give liberal precedents disfavored by today’s conservative Court a new lease on life in the law. Should the Court’s disastrous and unconstitutional ruling in Roe v. Wade finally be overturned, liberals will fight in 50 state legislatures to have its provisions reenacted. (Judicial activism by state courts with state constitutional provisions as pretexts is also proving increasingly popular with the. left.)

There is a danger that, as liberals are rediscovering democracy in Congress and the states, conservatives will forget it. Already many conservatives, in this age of Republican Presidents, have abandoned their principled opposition to arbitrary executive power. In an era of Republican judges, judicial activism on behalf of conservative and libertarian values might be tempting to the right. Pro-business federal judges in the late 19th century, after all, perfected judicial activism, which was arguably invented by the High Federalist John Marshall; liberals merely dusted it off for their own purposes after World War II.

It would be a bittersweet victory for judges like Brennan who have abused the judicial power to see their opponents adopt their methods, if for different ends. The great issues of society should be decided amid debate and publicity by elected representatives, not by judges and clerks reading briefs, or by executive bureaucrats sending secret memos from one cement labyrinth to another. In a republic, when a judge of the highest court resigns, no one should care. The great questions in a republic are: what electoral system is the best for our purposes? what do the different parties offer? who will control the legislative leadership and the committees in the legislature? In the oligarchic monarchy that is the post-FDR United States, more attention is paid to the selection of a largely functionless Vice President than to the election of a Senate Majority Leader, and the retirement of an elderly Supreme Court Justice, unlike the resignation in disgrace of a House Speaker, shakes the country to the roots. Perhaps one day’ America will be a self-governing republic again. If so, William J. Brennan, Jr., may turn out to have served the country by providing an exemplary warning to future generations of what happens when judges, betraying their trust, decide to rewrite the Constitution they claim to enforce.