WASHINGTON -- Retired Supreme Court Justice William J. Brennan Jr., often considered the most influential justice of the past half-century and clearly its strongest champion of individual rights, died yesterday at age 91.
That rarest of judges, mixing the deep-thinking detachment and originality of a legal scholar with the deal-making wiles of an Irish politician, Justice Brennan had worked tirelessly behind the scenes to mold much of modern constitutional history.
He was the architect of the First Amendment as it is understood today, the principal author of the "one-person, one-vote" concept of pure political equality, the stubborn exponent of the idea that even the worst criminals deserve a measure of legal dignity, a ceaseless advocate of the equality of the races and of the sexes, and a promoter of the idea that the states must obey the Bill of Rights as fully as the national government must.
When the modern court began shifting its constitutional direction in the mid-1970s away from Brennan precedents and toward scaling back individual rights, he launched a speaking and writing campaign to persuade state supreme courts to step in and shore up those rights under state constitutions.
In his last public writing a year ago, Justice Brennan explained his zeal: "If I have drawn one lesson in my 90 years it is this: to strike another blow for freedom allows a man to walk a little taller and raise his head a little higher. And while he can, he must."
Justice Brennan's liberalism, and especially his recognition of rights not literally mentioned in the Constitution, had its sharp critics. These included some of the more conservative justices who joined him on the bench in his later years.
But those justices, too, were deeply fond of him. Justice Antonin Scalia said when Justice Brennan retired seven years ago: "Even those who were most in disagreement with him loved him."
President Clinton, who ordered all U.S. flags lowered to half-staff in Justice Brennan's memory, said his "devotion to the Bill of Rights inspired millions of Americans, and countless young law students, including myself."
In private, Justice Brennan said he regretted only one decision: his agreement with a doctor's suggestion in 1990 that he retire because work seemed to have become life-threatening. He had suffered a small stroke, and his doctor feared the worst if he remained on the bench.
Justice Brennan said to his wife and close friends that he thought he should continue serving on the court, believing -- as he wrote last year -- that "continuous hard work is needed if we are to realize the true potential of our Constitution and its Bill of Rights."
To Justice Brennan, the purpose of the Constitution and its Bill of Rights could be summed up simply: In his words, it was "to protect individual freedom from repressive governmental action."
An unapologetic liberal whose influence survived even the passing of the court he personally had dominated, under Chief Justice Earl Warren, Justice Brennan failed in but one cherished goal: He wanted to live long enough to see the end of the death penalty in America, a sentence he opposed under all circumstances as cruel and unusual punishment under the Eighth Amendment.
No justice now on the court has ever cast a vote like Justice Brennan's to scuttle the penalty. A day before Justice Brennan died, a convicted Virginia murderer was executed after the Supreme Court turned down a last-minute claim of innocence.
Bernard Schwartz, a Supreme Court historian and law professor at the University of Tulsa, summed up in a recent tribute what has become a common assessment of Justice Brennan:
"If we look at justices in terms of their role in the decision process, William J. Brennan Jr. was actually the most influential associate justice in Supreme Court history.
"More than any justice," Professor Schwartz said, "Brennan was the strategist behind Supreme Court jurisprudence."
It was in the internal decision-making process never seen by the public -- the corridor bargaining, the one-on-one pleading and flattering, the creative process of giving and taking that produces coalitions where Justice Brennan chose to spend his energies.
Given to reminding everyone -- and especially his law clerks -- that "five votes can do anything around here," Justice Brennan worked to get a majority of five as fervently and as successfully as any predecessor.
Often, if not always, five votes wound up in favor of his theories about shielding or expanding someone's constitutional rights.
Justice David H. Souter, who took Justice Brennan's seat in 1990 and became not only a devoted personal companion to Justice Brennan but also a follower of much of his judicial philosophy, marveled at Justice Brennan's skills as a tactician.
Justice Souter remarked last year: "Anyone who earns his pay by appellate judging has to see Brennan the tactician the way joggers see marathoners."
A modest man withal