Wednesday, February 22, 2017

Louis D. Brandeis: American Prophet (Jewish Lives) Hardcover – June 1, 2016 by Jeffrey Rosen , Yale University Press

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Most Americans know or remember Supreme Court justices by their politics and, occasionally, by the quality of their prose. Too often, legal scholars and law students reserve to themselves the weighty task of comparing justices’ judicial philosophies or assessing a jurist’s impacts on modern American law.

So with the release of Louis D. Brandeis: American Prophet (Yale University Press, 2016), which commemorates the hundredth anniversary of Brandeis’s Supreme Court confirmation, Jeffrey Rosen offers something uniquely valuable to the public: a sharply focused, sub-300 page examination of Justice Brandeis’s life, philosophy and impact on such politically-charged issues as right to privacy, freedom from electronic surveillance and “the curse of bigness” in government and private industry. Yes, you read that correctly. The ever-prescient Brandeis, who served on the Supreme Court during an era of silent movies and Henry Ford’s Model T automobile (1916-1939), foresaw the modern conflict between citizens’ Fourth Amendment right to be secure in their “persons, houses, papers and effects,” and the State’s security interest in conducting electronic surveillance on citizens’ communication devices. This is one of the reasons that Mr. Rosen calls Brandeis an “American Prophet”.

Mr. Rosen, who is also president and CEO of the National Constitution Center, makes a compelling case that Brandeis was among the most “farseeing constitutional philosophers of the twentieth century.” Prophet somehow manages to be both crisply written and densely informative, introducing Brandeis’s brilliant legal reasoning to a larger audience than ever before. Below is an edited transcript of our conversation with Jeffrey Rosen.

Q: Your book makes a point that Justice Brandeis was prescient in many of his positions and opinions, hence the subtitle “American Prophet”. Please cite a few instances in which his views and thinking foreshadowed contemporary situations.

Brandeis was the greatest prophet of electronic privacy of the twentieth century. In his path-breaking dissenting opinion in Olmstead v. U.S. (1927), where the Court upheld warrantless wiretapping, Brandeis had wanted to refer to a new technology, television, but misunderstood it as a two-way technology, where people could see each other from both ends of the camera. (He anticipated Skype!) Instead of referring to television directly, Brandeis somehow imagined a world of web cams and FMRI brain scans where electronic surveillance can invade cognitive liberty without physical intrusions into the home. Here are his prophetic words:

Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.

Brandeis insisted on translating the Fourth Amendment to the Constitution so it would protect as much privacy in the age of the wires as the Framers took for granted in the eighteenth century.

Brandeis was similarly prophetic in anticipating the crash of 1929. “I wish to record my utter inability to understand why a lot of folks don’t go broke,” he wrote three years earlier, predicting “a breakdown within a year.” And his analysis of why the financial system went bust in the 1929s – because greedy oligarchs like J.P. Morgan took reckless risks with what Brandeis unforgettably called “other people’s money,” investing in financial instruments too complicated for any one to measure their true value – proved similarly prophetic in anticipating the crash of 2008.

Q: Since your book is aimed at a general audience rather than legal scholars, talk a bit about the conception of the Brandeis brief and its significance and importance to the legal process today.

Brandeis called the Brandeis brief “what every fool knows.” It was path-breaking in assembling facts and empirical evidence in an attempt to persuade judges about the real world implications of legal decisions. Brandeis filed the original Brandeis brief in a case called Muller v. Oregon (1908), in which he persuaded the justices to uphold maximum hour laws for women workers by offering reams of statistics about the effects of poor working conditions on women’s health. The Brandeis brief was so influential that it inspired Thurgood Marshall when he filed his historic briefs arguing that school segregation was unconstitutional because of its effects on the education of African-American students. Justice Ruth Bader Ginsburg told me for the book that the Brandeis brief also inspired her path-breaking briefs as head of the ACLU women’s rights project, which persuaded the Supreme Court to strike down gender discrimination. She was inspired by the Brandeis brief in Reed v. Reed (1971), a case challenging a state law preferring men to women as estate administrators, which was self-consciously Brandeisian. “The Reed brief was intended to be kin to a Brandeis brief, replete with social and economic references,” Justice Ginsburg told me. “He was the model for our presentation of information showing what conditions for women really were.”

Q: You write that Justice Brandeis’s most enduring constitutional achievement was guiding the court in its decision regarding the First Amendment in Whitney v. California. What were the issues raised in Whitney, and why was the Court’s decision so important?

The question in Whitney was whether the government could ban speech critical of the war effort in World War I merely because it might have a “ban tendency” to discourage enlistment. Brandeis had previously said yes. But over the summer of 1919, Brandeis changed his mind about the importance of unrestricted free speech in making democratic self-government possible. And the opinion that resulted was Whitney v. California (1926), which Justice Elena Kagan called in the book “the most powerful, and also the most beautiful, statement of First Amendment values ever written.” In Whitney, Brandeis insists that speech can only be banned if it’s intended to, and likely to cause, imminent violence. This was prophetic legally: the Supreme Court would adopt Brandeis’s view as the cornerstone of our First Amendment in the 1960s. But it was also prophetic technologically: in the age of the Internet, where billions of pieces of content are traded on Facebook every month, attempts to ban speech are ineffective as well as less likely to change hearts and minds than counter-speech. Here is Brandeis’s beautiful account of why the public needs unlimited access to even the most evil counsels because “the fitting counter to evil counsels is good ones”:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Q: Justice Brandeis opposed “bigness” in all forms: business, government and even, it seems, in the size of communities [You note he was disappointed that one of his law clerks grew up in Manhattan]. Is that why he doesn’t fit neatly into today’s libertarian Right and civil libertarian Left? And why do contemporary political leaders and commentators so rarely reference his opinions?

Yes, Brandeis was the greatest critic of bigness, in business and government, since his hero, Thomas Jefferson. In his time, he was an icon both for the libertarian Right and the civil libertarian Left. Today, however, some progressives who share Brandeis’s suspicion of big corporations lack a similar suspicion of big government. And some conservatives who mistrust mass NSA surveillance by the government are less concerned about the oligarchic influence wielded by big corporations. It was, unfortunately, on the campaign trail that Bernie Sanders attributed his proposal to break up big banks to Theodore Roosevelt; in fact, it was Brandeis and Woodrow Wilson, in the election of 1912, who wanted to break up the banks; Roosevelt wanted to maintain big banks that could be regulated by big federal oversight bodies that Brandeis mistrusted. But Brandeis’s hour may be coming around at least: in a Reason Magazine poll of libertarian and civil libertarian scholars and judges, four out of the 14 respondents identified Brandeis as their favorite Supreme Court justice, mostly because of his dissenting opinion in the wiretapping case, U.S. v. Olmstead.

Q: Justice Brandeis strongly believed that courts should defer to state legislatures unless state laws clearly violate the Constitution. On which side do you think he would have voted in two high-profile cases before the high court this year: Whole Woman’s Health v. Hellerstedt (challenging a Texas law that restricted which clinics could offer abortions) and United States v. Texas (challenging President Obama’s ability to issue sweeping executive orders).

It’s hard to predict how Brandeis would have ruled in the abortion case. On the one hand, as you suggest, Brandeis strongly believed in deferring to state legislatures except in cases where they violated rights explicitly enumerated in the Constitution, such as the First and Fourth Amendments. On the other, he focused on facts and would have looked closely at claims that clinic restrictions ostensibly designed to protect women’s health in fact had the effect of closing clinics without corresponding safety benefits.

On U.S. v. Texas, too, his vote is hard to predict. He was a foe of unchecked executive power and dissented from an opinion by Chief Justice William Howard Taft, holding that Congress could not limit the president’s unitary authority to fire executive branch officials. “The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power,” Brandeis objected in his dissent in Myers v. U.S. (1926). “The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” On the other hand, Brandeis emphasized in Myers the framers' focus on the “protection of the individual, even if he be an official, from the arbitrary or capricious exercise of power.” As Brandeis put it, “The separation of the powers of government did not make each branch completely autonomous.” Because Brandeis believed that the framers gave Congress oversight power over the president to secure liberty, it’s not clear how he would have voted in a case where the president said he was exercising his power to protect the liberty of the Dreamers, or children of illegal immigrants, in the face of Congress inaction. Brandeis certainly was an advocate of the benefits of immigration and he and his acolyte Horace Kallen wrote one of the twentieth century’s most eloquent defenses of cultural pluralism.

Q: One of his most inspiring principles was that all citizens should study the Constitution, and take an interest – and a position – in questions of constitutionality. How do you recommend the layman go about minding Justice Brandeis’s counsel?

Brandeis, like Jefferson, believed that citizens have a duty to educate themselves about the Constitution, because democracy can’t survive ignorant and free. The best way for lay people to heed Brandeis’s advice is to visit the National Constitution Center website,! Here at the National Constitution Center, we are creating the best non-partisan resources in America for constitutional education, assembling the best liberal and conservative scholars to write about every clause of the Constitution, as well as describing areas of agreement and disagreement. Check out the Interactive Constitution at, pick the constitutional amendment that interests you most, read the arguments on all sides about its historic and contemporary meaning, and make up your own mind. Brandeis expected no less: as he put it, “If we would guide by the light of reason, we must let our minds be bold.

Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center. Mr. Rosen is also a highly regarded journalist whose essays and commentaries have appeared in the New York Times Magazine, The Atlantic Monthly, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the 10 best magazine journalists in America and a reviewer for the Los Angeles Times called him "the nation's most widely read and influential legal commentator.”


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