Document Type
Article
Publication Date
2024
Journal
University of Richmond Law Review
Volume
58
First Page
227
Last Page
283
Abstract
Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.
To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. used in his constitutional interpretation. Widely recognized as an intellectual leader of the Warren Court, Justice Brennan was open and forthright about the ends toward which he believed constitutional law should be evolving. As he put it, the challenge Justices faced in interpreting the Constitution’s meaning was to “foster and protect the freedom, the dignity, and the rights of all persons within our borders, which it is the great design of the Constitution to secure.” His jurisprudence, in short, sought to promote the dignity rights of the individual. This Article traces the personal and historical influences that led Brennan to this jurisprudential commitment and the way in which it played out in many facets of work, including both his opinions and his extrajudicial writings. The Article further investigates the criticisms that Brennan’s approach engendered and evaluates problems with his jurisprudence that have become clear with the benefit of historical hindsight.
Today, as a large and growing literature convincingly documents, the Roberts Court similarly uses a teleological approach in its constitutional adjudication. Unlike Justice Brennan, however, the members of the Roberts Court’s conservative supermajority refuse to acknowledge that they bring teleological reasoning to their judging, instead hiding behind purportedly almost mechanistic interpretive techniques such as originalism. Those techniques leave vast areas of uncertainty and large spaces for discretion in constitutional adjudication, however, and for this reason the Roberts Court uses its own kind of teleological reasoning to come to conclusions in many of the cases it adjudicates, very much like Brennan did methodologically but with very different substantive ends in mind. The views of the conservative majority on the Roberts Court about the “good” toward which constitutional law should be moving are anchored in preserving tradition and promoting the political agenda of the right wing in United States politics. Those values, to be sure, differ greatly from Brennan’s. But in its underlying methodology, the Roberts Court’s conservative majority mirrors Brennan far more than it wants to admit.
If this argument holds, then a key question in constitutional law today is not so much based in assessing underlying differences in the methods of reasoning of the Warren versus Roberts Courts as it is in evaluating the views of these two Courts as to the ends, values, and conceptions of the “good” constitutional law should embrace. Those questions require acknowledging the teleological assumptions underlying the reasoning of Justices in the two eras. With those assumptions exposed, the job of evaluating the benefits and drawbacks of the alternative teleological conceptions that underlie the jurisprudence of various Justices and eras of the Court can begin.
Recommended Citation
Susan D. Carle,
Justice William J. Brennan Jr.'s Teleological Jurisprudence and What it Means for Constitutional Interpretation Today,
58
University of Richmond Law Review
227
(2024).
Available at:
https://digitalcommons.wcl.american.edu/facsch_lawrev/2249