Justice Sandra Day O’Connor was confirmed to the Supreme Court on September 25, 1981. Prior to this date, it was commonplace for Justices to refer to their fellows Justices as “Brother,” or “Brethren.” The famed Woodward book was accordingly titled “The Brethren.” How did this usage change after Justice O’Connor was confirmed? I did a US search for “brother” and “brethren” for all Supreme Court opinions from 1981 to 2011.
In the term preceding Justice O’Connor’s Confirmation in September of 1981, there were 10 opinions that used the term “brother” or “brethren.” Four from Brennan, three from Rehnquist, and three from Stevens.
- Jeffries v. Barksdale, 453 U.S. 914 (1981) (“If this case were properly before the Court I would have no difficulty in joining my Brethren in denying the petition for writ of certiorari.”)(Rehnquist, J., dissenting in denial of certiorari).
- Trapper v. North Carolina, 451 U.S. 997 (1981)(“I dissented in that case and reminded by Brethren that ‘institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law.'”) (Brennan, J., dissenting from denial of certiorari)
- Coleman v. Balkcom, 451 U.S. 949 (1981)(“Yet surely those among my Brethren who believe that there are circumstances in which the State may legitimately impose this ultimate sanction would not want to see an innocent individual put to death.”)(Stevens, J., concurring in denial of certiorari).
- Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)(“We do not significantly differ with our Brother WHITE on the remedy for failure to comply with federally imposed conditions.”)(Rehnquist, J.).
- San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (“In his concurring opinion, my Brother REHNQUIST, who dissented in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), writes . . . With all respect, my Brother REHNQUIST misreads my position.”)(Brennan, J., dissenting).
- Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662 (1981)(“My Brothers POWELL and REHNQUIST make the mistake of disregarding **1322 the intention of Iowa’s lawmakers and assuming that resolution of the case must hinge upon the argument offered by Iowa’s attorneys . . . I repeat: my Brothers POWELL and REHNQUIST have asked and answered the wrong question. . . . My Brother REHNQUIST claims that the “argument” that a court should defer to the actual purposes of the lawmakers rather than to the post hoc justifications of counsel “has been consistently rejected by the Court in other contexts. . . . “)(Brennan, J., concurring) (“I do not agree with my Brother BRENNAN, however, that only those safety benefits somehow articulated by the legislature as the motivation for the challenged statute can be considered in supporting the state law”)(Rehnquist, J., dissenting).
- Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981)(“Nevertheless, as a matter of constitutional power, unlike my Brother BRENNAN see ante, at 1215 n. 5, I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse.”)(Stevens, J., dissenting).
- Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981)(“I find this question less easily answered than do my Brothers, all of whom were Members of the Court when Edelman was decided.”)(Stevens, J., concurring).
- Sumner v. Mata, 449 U.S. 539 (1981) (“I cannot join my Brethren in concluding that the Court of Appeals’ decision must be vacated for its failure to discuss an issue not timely raised by petitioner.”)(Brennan, J., dissenting).
Following 1981, when Justice O’Connor joined the Court, this usage ground to an almost immediate halt. Curiously, the next usage of the opinion occurred in 1984 in a concurring opinion by Justice Rehnquist joined by Justice O’Connor. I suppose referring to Justice White and Stevens, both men, merited the use of the term Brothers.
- Woodard v. Hutchins, 464 U.S. 377 (1984) (“Unlike our brothers WHITE and STEVENS, we believe that the District Court is not obligated to rule on every 11th hour petition for habeas corpus before it denies a stay.”)(Rehnquist, J., concurring joined by O’Connor, J.).
Following this 1984 opinion, I found one 1986 dissenting opinion by Justice Brennan and one 1992 concurring opinion by Justice Blackmun.
- Darden v. Wainwright, 477 U.S. 168 (1986) (“I join my Brother BLACKMUN’s dissent.”)(Brennan, J., dissenting).
- Sawyer v. Whitley, 505 U.S. 333 (1992) (“Although I reiterated my personal distaste for the *358 death penalty and my doubt that it performs any meaningful deterrent function, see id., at 405-406, 92 S.Ct., at 2812, I declined to join my Brethren in declaring the state statutes at issue in those cases unconstitutional”)(Blackmun, J., concurring in judgment).
This seems to be the last usage of the term brother or brethren in Supreme Court opinons.