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Justice Brennan and the Constitution


Lincoln Caplan defends him from the charge that he imposed his personal preferences on the Constitution by noting that the egalitarianism of his jurisprudence was at odds with his own chauvinism and his support for freedom of the press with his disdain for reporters. But this defense misunderstands the conservative critique of judicial activism. That critique is perfectly capable of recognizing that an activist’s decisions might be “principled” in the sense of fitting into a coherent political philosophy; what it denies is that the Constitution authorizes the justice to implement this political philosophy. If it were to be shown that Justice Brennan “personally opposed” abortion and even counseled women against it, it would not ground Roe any more firmly in the Constitution or render his support for it less problematic.