Recent Journal Articles – June 2014

24Jun14

The Journal of Supreme Court History can usually be counted to offer some new information on John Marshall Harlan and Louis D. Brandeis, and their latest issue (volume 39, number 1) does not disappoint in that regard.  The first article in the issue is titled “Plessy v. Ferguson: the Effects of Lawyering on a Challenge to Jim Crow” and it is by Seton Hall history professor Williamjames Hull Hoffer. Harlan doesn’t actually figure much in the article, but nevertheless it is a fascinating look at the events that lead up to the case and the legal arguments that were used before the Supreme Court.

Brandeis is name-checked in two articles that are not specifically about him. The first, “The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr. and the Story behind Abrams vs. United States” is by Thomas Healy who is also from Seton Hall. Healy discusses the evolution of Holmes’ views on free speech and the behind the scenes efforts of friends like Harold Laski and Learned Hand to change his mind . He makes a strong argument but I suspect that he gives short shift to Brandeis’ influence, which is hard to quantify. There is plenty of documentary evidence (letters etc.) of the Hand/Laski campaign and Healy makes good use of it. Since Brandeis saw Holmes nearly everyday during the Supreme Court’s terms (they would walk home together at the end of each day) there was no need to write each other. It looks to me that Brandeis was at first content to follow Holmes’ lead on First Amendment cases but then as his thinking on the subject changed, he was able to pull Holmes along in his wake. But without any written evidence that assertion would be difficult to prove.

Brandeis’ presence is even fainter in the third article, “Felix Frankfurter and his Proteges: Re-examining the ‘Happy Hot Dogs'” by Sujit Raman. Raman discusses Frankfurter’s cultivation of Harvard Law School’s brightest students into his inner circle and then into various government positions, such as clerkships for Brandeis and Holmes. Many of his former clerks made no secret about how much they were influenced their time with Brandeis, but they were just as influenced by Frankfurter and his placement of them in key positions influenced the federal government for many years, particularly during the New Deal.

And finally, an article from the latest issue of the Notre Dame Law Review. I have mentioned David Bernstein before. He has been writing a lot about the early 20th century Progressives, and how he feels they were anti-individual rights. His latest article is about Brandeis again and is titled “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law” (volume 89, number 5 of the Notre Dame Law Review, pp. 2029-2050, also available on SSRN.) In it, he outlines what he views as Brandeis’ evolution as a Holmes-style Progressive to something of a bridge to the “mid-century legal liberals.” (Interestingly, he also credits Brandeis with shaping Holmes’ views on free speech. I wonder if he will still feel that after reading Healy’s article.) Well written and a thought-provoking read, this article provides more ammunition in Bernstein’s campaign against early 20th century Progressivism.

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