In contrast to the administration’s beliefs of his conservatism, once Brennan took the bench he proved to be the most liberal and influential justice on the modern Supreme Court. ("Justices: William J. Brennan, Jr.. "). Brennan brought a liberal philosophy to the court that paralleled with that of Earl Warren’s. His landmark opinions on matters such as free expression, reapportionment, civil rights, and criminal procedure brought forth controversy and change.
One such landmark case that established Brennan as a black-horse liberal of the court was Malloy v. Hogan, 378 U. S. 1 (1964). In Malloy, the question posed by the appellants dealt with whether the Fourteenth Amendment protected a state witness's Fifth Amendment guarantee against self-incrimination in a criminal proceeding? The Fifth Amendment reads as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation..
(“CRS Annotated Constitution”). And the applicable portion of the Fourteenth Amendment (Section I) reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(“CRS Annotated Constitution”). Therefore, the crux of the case surrounded the issue of whether there was an equal protection of the laws when the state court of appeals affirmed the trial court’s decision; denying that there was a right against self incrimination in state courts, but rather only in federal courts. In another split 5-4 decision, the Supreme Court reversed the decision of the state appellate court, and held the Fifth Amendment's exception from compulsory self-incrimination to be protected by the Fourteenth Amendment during state criminal proceedings.
(“Malloy v. Hogan, 378 U. S. 1 (1964). ”). As a result of this and many other decisions where Brennan wrote the opinions of, and concurred with the liberal majority, Eisenhower later publicly denounced his appointment of Brennan as yet another mistake. After the 1969 presidential election, Republican Richard Nixon was elected to serve as the 37th president of the United States. Once Nixon took office, one of his priorities was to “pack the court” with conservatives.
While investigating members of the court, Nixon’s staff uncovered a scandal of possible criminal repercussions involving Justice Abe Fortas. As a result of the investigation, Chief Justice Earl Warren encouraged Fortas to resign and spare the court the embarrassment of a scandal. (Woodward 17). In 1969, after only 4 years with the court, Fortas resigned. By 1970 the seat was filled by a known conservative jurist, Harry A.
Blackmun. In his first two years with the court, Blackmun tended to vote with the more conservative majority of the court. ("Justices: Harry A. Blackmun"). However, he eventually become sympathetic to the liberal movement and began to look at the cases brought before the court in a different light. One such case which he approached differently was the appeal of the case of Roe v. Wade, 410 U. S. 113 (1973).