Is There a Rebellious Streak Here? : Supreme Court: Souter came of age at the dawn of the ‘60s. Dare we hope that he’ll eventually vote that way?

I’d just been reading an interview with Justice William J. Brennan Jr. in the June issue of Irish America when the news came that he was hanging up his robes. What emerged in the interview was Brennan’s consciousness of his family’s roots in immigrant and labor struggles, even though his father eventually made it up the ladder, helping to capture Newark, N.J., from upper-crust control.

Brennan’s reminiscences are laced with a sense of history, a sympathy for the travails of ordinary humans. The young crowd on the Supreme Court doesn’t look as though it spends much time thinking about what life looks like from the bottom end of the barrel.

Brennan described how his father, an Irish immigrant, got a job shoveling coal at Ballantine’s brewery in Newark. He soon found conditions were very bad for the workers there, so, in his son’s words, “he started organizing within Ballantine’s and then spread around to the other breweries. . . . Remember, there were no trade laws to help you in those days. You just had to fight your way through.”

Brennan’s father did well enough in this strike to rise in the ranks of organized labor around Newark. Next came a statewide trolley strike, eventually broken because the police moved against it at the behest of the powerful McCarter family that, as Brennan remembers, “really ran the state.” In an effort to ward off a more sweeping onslaught on their power, the city bigwigs got Brennan’s father appointed as a police commissioner, but “he promptly showed where he stood in the labor disputes and that led to one fight after another.” In the end his father’s forces “swept away the whole government” and his father ended up running the Department of Public Safety. This paradigm, that justice exists to serve everyone, evidently stuck with Brennan all his life.

People poke through case decisions to try to figure out what a nominee to the Supreme Court will be like. Another, sometimes more reliable guide is the decade of birth and parental background. The old liberals, Brennan, Thurgood Marshall and Harry Blackmun, all turned 21 around the time of the stock market crash of 1929 and spent their early professional years watching the Depression gnaw through the country. Marshall’s father, William, grandson of a slave, was a yacht club steward. Blackmun’s father ran a hardware store in St. Paul. His son has recalled that they lived in a blue-collar neighborhood and “because I grew up in poorer surroundings, I know there’s another world out there that sometimes we forget about.”

The next age cohort of justices are Byron White, John Paul Stevens and William Rehnquist, born respectively in 1917, 1920 and 1924. White, a law-and-order justice, had a dad in the notoriously anti-union lumber business. Alpha White also served as mayor of Wellington, Colo. Stevens, as a justice somewhat of a liberal individualist, was the son of a wealthy businessman and grew up in Chicago’s affluent Hyde Park. Chief Justice Rehnquist spent his childhood in a well-to-do suburb of Milwaukee (which had a socialist mayor in the 1930s). His father, William, was a wholesale paper salesman who never attended college. His mother had a bachelor’s degree. These parents instilled in young William a reverence for Hoover, Landon, Wilkie and Taft.

The rest of Ronald Reagan’s appointees--Sandra Day O’Connor, Antonin Scalia and Anthony Kennedy--all turned 21 in the swell of the Eisenhower ‘50s when the tide still purported to lift all boats. O’Connor’s father was a rancher in the Southwest. Scalia’s father, Eugene, was a professor of romance languages who had immigrated from Italy. Kennedy’s was a Catholic Republican lawyer and lobbyist well-known in Sacramento.

It could be that from the liberal point of view, the great loss to the court was Douglas Ginsburg, Ronald Reagan’s failed nominee after the Robert Bork debacle. Here was a child of the ‘60s who turned 21 in 1967, who left Cornell for a year to run a dating service, who smoked at least one joint at Harvard. His father, Maurice, was a mortgage financier, which always offers insight into the human condition.

And David H. Souter, George Bush’s nominee? He celebrated his 21st birthday in the year that Richard Nixon lost the presidential race to John F. Kennedy, at the dawn of the rebellious decade. His father was a banker. The family moved from Massachusetts to New Hampshire. It doesn’t seem good for liberals. But there’s always the encouraging shift of Blackmun, a Nixon appointment.

Souter looks to me like a pressure cooker of psychic repression. Maybe he despised his father as a Nixon man and, if confirmed, will explode into judicial activism and spend the next half century getting his own back. Let’s hope so. After the ‘60s, the soil that nurtured judicial greatness of the Brennan type looks thin indeed.