Four of the five cases discussed were obvious choices: Dred Scott, Buck v. Bell, Korematsu v. United States, and of course, Plessy v. Ferguson. Plessy was a bit too obvious of a choice for its prosecutor, Yale Professor Akhil Reed Amar, who used the case as an occasion to talk about the concept of an anti-canon of American law and, incidentally, to plug his forthcoming book America’s Unwritten Constitution. As Professor Amar states in his speech, Pepperdine professor Barry P. McDonald had a much harder assignment in “defending” Plessy, and he doesn’t actually try too hard to do so, other than by putting the decision in the context of its times.

The fifth case discussed is something of a wild card: Erie Railroad Co. v. Tompkins, a case that not only if generally recognized as one of Brandeis’ greatest achievements on the Court but also as one of the most significant decision in the history of the Court. The title of Vanderbilt law professor Suzanna Sherry’s speech aptly sums up her argument: “Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time.” Professor Sherry levels many charges against Brandeis’ opinion in Erie–too many to go into here. Primarily, she claims that Brandeis’ reasoning was based on faulty interpretation of the 1789 Judiciary Act and that a decision meant to minimize venue shopping by corporations and confusion between the realms of state vs. federal common law has had the exact opposite effect. Pepperdine professor Donald Earl Childress III “defends” Brandeis’ opinion by saying that he’s not entirely sure if he disagrees with Professor Sherry. But he argues that Erie is still important for helping to preserve federalism and for forcing federal courts to be aware of the state vs. federal law issue.

All of the speeches from the symposium were reprinted in volume 39, number 1 issue of the Pepperdine Law Review, which unfortunately is not available on the web unless you have a subscription to West, Lexis or Hein Online. Professor Sherry does have her article available for download on SSRN. Even better, though, C-SPAN recorded the entire symposium and has the Plessy and Erie sessions (as well as all the others) available for free viewing on their web site.

Another Brandeis relative on the bench

My colleague Kurt Metzmeier is a collector of, among other things, political campaign buttons, and as a result found this button on eBay:

Nanette Dembitz was the daughter of Abraham Lincoln Dembitz, who was the son of Louis D. Brandeis’ beloved uncle Lewis Dembitz. This would have made her Brandeis’ second cousin (according to the New York Times anyway–genealogy is completely beyond me.) Like Brandeis and his daughter Susan, Nanette also went to law school, graduating from Columbia in 1938. Like many other women law school graduates of the time, she had difficulty finding a job at first, but she persevered, eventually becoming a judge in the Family Court in Manhattan, where she became known for her outspoken and sometimes very liberal views. The campaign button is from her attempt to be elected to the New York Court of Appeals. She didn’t win.

The New York Times has posted a very informative obituary on her on their website.

Glenn Beck and the Zionist Organization of America

There are a couple reports going around on the web that the Zionist Organization of America gave its 2011 Louis D. Brandeis Award to Glenn Beck. This isn’t quite true. The award actually went to father and son William K. and Mark Langfan, who are both prominent modern day Zionists. Beck merely gave the keynote speech at the awards dinner. (Fellow “Christian Zionist” Michele Bachmann also spoke at the dinner.)

Many liberal followers of Brandeis would probably be appalled at the thought of Beck giving a speech at an awards dinner featuring Brandeis’ name, but it’s impossible to say with any certainty what Brandeis would have thought about it. He was a passionate Zionist and he was certainly willing to work with anyone when it came to raising money for Israel and for the ZOA.

More details on the dinner can be found in the ZOA’s press release. (I particularly like the bit where the ZOA’s vice-chairman Steve Goldberg made the following tribute to ZOA president Morton Klein: “All of the ZOA’s past leaders, including Louis Brandeis and Abba Hillel Silver pale in comparison to Mort Klein.” While Klein has done a lot in restoring the fortunes of the ZOA from its near moribund state, he still has a long way to go before he can fit in Brandeis’ shoes.

Does Clive Cussler own Brandeis’ car?

Besides being a best selling novelist, Clive Cussler is also an antique car aficionado. He apparently owns over 55 of them, many of them on display in a specially built museum in Colorado. They are also on display in a book called Built For Adventure. One of the cars he owns is a rose colored 1931 Marmon V16 Town Car that he claims was once owned by Brandeis. According to Mr. Cussler, Alice Brandeis bought the car for him for his 75th birthday but he was so appalled by the color of the car that he refused to ride in it. I love this story but I’m a little skeptical about it. Brandeis was not an “early adopter” when it came to technology and I don’t think he ever learned how to drive. In fact, he was known to drive a horse and buggy on the streets of DC as late as the 1920′s. On the other hand, he had to get around somehow and the family might have hired a driver to drive the car.

I’m going to try to contact some family members to see if I can verify any of this. In the meantime, you can see pictures of the car and read about its pedigree at the Cussler museum’s website.

The first is Anita Whitney, Louis Brandeis, and the First Amendment by Haig Bosmajian (Fairleigh Dickinson University Press, 2010.) It is, of course, about Brandeis’ famous opinion in Whitney v. California (274 US 357.) Professor Bosmajian tells the little known story of Anita Whitney, the “socialist socialite” whose tireless championing of progressive causes in the post WWI years earned her a 14 year prison sentence in California.  Bosmajian does a good job describing the progressive causes of the early 20th century and how the post WWI red scare resulted in state laws that made many activities we take granted today illegal. He also describes in great detail Whitney’s trial and the confused nature of the charges against her. Professor Bosmajian is a professor of rhetoric, so he also devotes a chapter to analyzing Brandeis’ opinion itself, both for Brandeis’ use of rhetorical devices and for a look at how Brandeis incorporated his earlier unpublished opinion in Ruthenberg v. Michigan. Of particular interest for me was his explanation of how this opinion, one of the Supreme Court’s strongest defenses of free speech, became a concurring opinion upholding Whitney’s conviction.

The book is not perfect however. The subject seems better suited for a journal article and as a result the book feels padded and repetitious in many places. Also, there are a few basic factual errors that the book’s editor should have caught. (For instance, two different years are given for the date of the death of Quaker Mary Dyer, and even worse, at one point he describes Brandeis’ sister-in-law Susan Goldmark as his daughter.) But overall, the book is an interesting look at the back story of one of Brandeis’ most famous writings.

We also received Inherently Unequal: the Betrayal of Equal Rights by the Supreme Court, 1865-1903 by Lawrence Goldstone (Walker and Company, 2011.) While this well written book is not about John Marshall Harlan per se, it discusses nearly all of Harlan’s civil rights opinions and places them in context with the actions and philosophies of the other Supreme Court justices of the era, and thereby ought to be of interest of all Harlan scholars.

Today (June 7) is Homer Plessy Day. It was 119 years ago today that Homer Plessy bought a train ticket and sat in an all white train car–events that eventually led to Harlan’s famous dissent in Plessy v. Ferguson. Plessy Day was named an official holiday in New Orleans due to the efforts of the Plessy and Ferguson Foundation, a foundation created by the descendents of both Plessy and Ferguson and dedicated to advancing civil rights. The Washington Post has an interesting article about how Keith Plessy, the great-grandson of Homer Plessy’s first cousin, and Phoebe Ferguson, the great-great-granddaughter of Judge John Howard Ferguson, met and formed the foundation.

Attorney Katherine A. Helm takes a look at the allegations made against Brandeis’ ethics during his conformation hearings in her article “What Justice Brandeis Taught Us About Conflicts of Interest” (Fall 2010 issue of The Journal of the Legal Profession, pages 1-23) and asks if being a “lawyer to the situation” is possible any more.

Attorney Richard S. Gordon of Quinn, Gordon and Wolf in Towson, Maryland is another Brandeis fan and has a small collection of letters written by Brandeis. He called me yesterday to tell me about his latest acquisition, a letter that is not reprinted in Urofsky and Levy’s collection of letters.  It is an October 4, 1918 letter to soprano Alma Gluck, regarding a recording she made of the song Hatikva with her husband, violinist Efrem Zimbalist. Gluck and Zimbalist were famous performers of their day. Nowadays they are primarily remembered for being the parents of actor Efrem Zimbalist Jr. and the grandparents of actress Stephanie Zimbalist. Hatikva is now Israel’s national anthem, but even in 1918, the song was popular with Zionists. Hence, Brandeis’ letter:

Oct 4/18

 My Dear Mrs. Zimbalist:

             I have just received from the Victor Company your letter of the 29^th and am eagerly awaiting the arrival of the record.  You and Mr. Zimbalist have performed a great service to the cause.

            I venture to suggest that you write a letter to the President  and send it to me, so that it may be delivered with the record.  This will give him far more pleasure, than if they went to him with a note from me.

            I will hold the record awaiting your letter to the President.

            With most Cordial Greetings to Mr. Zimbalist.

                                    Sincerely,

                                    Louis D. Brandeis

I can’t find any information on what President Wilson thought of the record, but you can hear it for yourself on YouTube.

Mar. 19, 1917
My dear Mr. Brandeis:
Your night letter of the 18th was received this morning and I thank you for the privilege of writing you in this confidential manner.
Referring to my letter of January 29th, I would emphasize again my conviction that the mightiest proof of the truth and reliability of Scripture prophecy is immediately impending, and that is in the personal return to the earth of Jesus, according to His promise in John 14:3.
The whole foundation of the New Testament prophecies falls to the ground if He does not literally fulfill this great promise. I believe He will. And after years of patient study and faithful service, I believe I have through the teaching of the Holy Spirit, a true conviction that His coming is right at hand, and may occur within the next few months. If so, professing Christians who are ready, are caught away, it must have a convincing effect, at least in the minds of many conscientious believers in the Word of God, who may not be in the true attitude of mind and heart to participate in the glorious Rapture of being caught up to meet Him in the air, as described in 1 Thess. 4:13-18.
May I ask you, dear Mr. Brandeis, that if such an event shall occur, will it not be convincing to you that I am holding a right understanding of Scripture prophecy?
Now, what I wish to ask is, if the Rapture does come, and you are not among those who participate in it, can there be any arrangement made with you, by which one’s earthly substance can be assured to be used for the benefit of those who may be by the Rapture, convinced, and who will thereby be led to hold to believe the Word, and work for Israel’s welfare in the awful troublous times which are to follow?
There are apparently no human laws which provide for any such event as this. If I understand correctly, absence for seven years constitutes a legal presumption of a person’s death, but that is altogether too tardy to have the desired effect concerning the earthly affairs of those who will participate in the Rapture. Can you suggest any method by which one may provide for the legal disposition of property under these circumstances?
I say in the strictest confidence that in God’s providence, during the past year, several million dollars of marketable stock have been put in my hands for evangelistic work. I have been able to use only a few hundred thousand dollars thus far.
Both Mr. Stewart and i will be glad of any suggestion which you can make as to how this could be put into your hands in case the Rapture does occur. Please write me whether you will be willing to consider some such arrangement; make suggestions so that I may write you more fully by immediate mail.
Assuring you that this is prompted by an intense and overwhelming love for Israel, God’s chosen people, who “though they have lain among the sheepcotes, are yet to be as the wings of a dove, covered with silver and her feathers of yellow gold,” Psalms 68:14, I am
Very sincerely yours,
William E. Blackstone

March 26, 1917
My Dear Dr. Blackstone:
I appreciate the high trust suggested in yours of the 19th, but my office of Justice of the Supreme Court prevents my assuming it or advising in relation to it. The trust might conceivably become a subject of litigation, and questions concerning it be submitted to our Court for decision.
This precludes my giving the subject consideration.
With great regard.
Most cordially,
LDB

Update: The Wikipedia article on Blackstone has quite a bit on his relationship with Brandeis and Zionism. And for a much better written account of the letter, check Peter Smith’s article about it in the Louisville Courier-Journal.

When Brandeis was four, his parents moved from their little house on Center Street, between Chestnut and Walnut, to a larger one on First Street, which they had remodeled. A few years later they moved again, this time to an impressive limestone-fronted house the had built on fashionable Broadway.

I don’t know anything about the houses on Center or First Streets, but the house on Broadway still stands. Formerly known as the Turners of Louisville building, it is located at 310 E. Broadway, near the medical campus of  the University of Louisville. It is now the office building of the UofL Dermatology group.

Here is a shot of the front of the building:

The limestone front Strum mentioned is clearly visible. It gives the building a rather un-residential look. After the Brandeis’ moved out, the building was sold to a German social group and a gymnasium was added to the back of the house. You can see the addition in the next picture.

The building was bought by the dermatology group in the 70′s or 80′s. A newspaper article that is framed and mounted inside the house claims that the doctors were planning on donating the house to the university of Louisville when they retired, but I don’t know if that is still part of their plan.

Obviously the inside of the house has been converted into offices, but parts of the front look like they must have back in Brandeis’ time. Check out this nice staircase:

The horse, though, I think is a recent addition:

You can find the article online at the Journal of Legal History‘s web page.

Interestingly, one of the two dissenters was John Marshall Harlan. In an earlier post, I commented on the constitutional law class Harlan taught at George Washington University, and I complained that Harlan barely mentioned the Reconstruction Amendments. However, the lecture in which he did discuss them was on May 7, 1898, a mere 6 weeks after the decision in Wong Kim Ark was handed down. As a result, the students got an earful on the subject. This is one of the few occasions that I know of where Harlan talked about his views of a case he was on outside of a written opinion. It’s kind of a minor miracle that it was this year his lectures were copied down. Here is what he had to say about the case:

“The question turns upon two or three words of this amendment. All persons born in the United States, well he was born here, but now come the words, “and subject to the jurisdiction thereof.” Now if that boy was within the meaning of that clause, subject to the jurisdiction of the United States, then he became a citizen of the United States, and of the state wherein he resided. The majority of the court held that he was. The minority held that he was not born to the jurisdiction of the United States, as to this Constitution. He was not born subject to the political jurisdiction of the United States. Of course he owed allegiance to our laws, as every man who comes here, but he was not born under the jurisdiction of the United States within the meaning of this article of the Constitution. I was one of the minority, and of course I was wrong. Suppose an English father and mother went down to hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth? My belief was never intended to embrace everybody in our citizenship if he was the child of parents, who can not under the law become naturalized in the United States. I was unable to believe that when the boy’s parents could not become citizens of the United States, that it was possible for him to become a citizen of the United States. One of the results of the opposite view is that when that man goes back to China, and the emperor should conclude to cut his head off, a custom which prevails to a very great extent among these people, we would have to prevent it, and if we could not do this, make him pay for it afterwards. Or if they impress him into the Chinese army, we would have to protect him. Of course I am wrong, because only the Chief Justice and myself held these views, and as the majority decided the other way, we must believe we were wrong.”

Not exactly the opinion one would expect from the Great Dissenter.

I should clarify one statement. When Harlan states that “the boy’s” parents could not become citizens, it was because the Chinese Exclusion Act of 1882 explicitly prohibited the Chinese from becoming US citizens. So when he said the English boy could become a citizen, one of his reasons was purely legal. But it’s to believe there wasn’t some racism at play there as well. While at this stage of his life, Harlan was viewed as a friend of African-Americans, he was also known for his statements against the Chinese, a race he believed to be so alien that they could never be assimilated into American society. History, of course, has proven him wrong. I wonder if he were alive today, if he would still feel the same.

“The Harlan Institute’s mission is to bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws. By utilizing the expertise of leading legal scholars and the interactivity of online games, Harlan will introduce students to our Constitution, the cases of the United States Supreme Court, and our system of justice.  Harlan’s long term strategic goal is to develop condensed law school courses that can be taught at no cost in high schools across the country using engaging online programs.”

So I guess it could be argued that those lectures Harlan delivered over 110 years ago are still influencing students.

The idea of a con law class taught by a sitting Supreme Court justice is an intriguing one (imagine a class taught by Scalia or Breyer!) but the lectures have attracted amazingly little attention over the years. They have been cited a few times in Harlan biographies and that’s about it. But that looks like it is going to change soon. I have heard rumors that Carolina Academic Press will be coming out with a transcription of them either this year or the next, so Harlan scholars everywhere will be able to read them.

In the meantime, I have stumbled onto an article that summarizes not only the lectures, but also Harlan’s tenure at George Washington:  “Justice John Marshall Harlan, Professor of Law” by Josh Blackman, available at SSRN. Mr. Blackman peppers the paper with all kinds of intriguing bits. such as his classes were two hour lectures held each Saturday night. (That’s another hard to imagine in this day and age: law students attending class on a Saturday night.)

Unfortunately, having actually read a few of the lectures myself, I have to say they sound more intriguing and enlightening than they actually are.  Anyone hoping to get some insight into Harlan’s reasoning behind Plessy v. Ferguson or just about any of his other decisions is going to be disappointed.  Harlan starts with the pilgrims arriving in America, talks about the Articles of Confederation and then plods through the Constitution, one paragraph at a time.  There are 25 lectures in all, and he doesn’t get to the amendments until the 22nd lecture, and the 13th – 15th amendments, which could have lead to the most interesting discussion of all are summarily discussed in the last lecture. On the whole, they read more like a high school civics class than a modern constitutional law class. (Although there are occasionally flashes of humor and some amusing anecdotes and asides. Like the time he marvels over this amazing new invention he just installed in his house: a telephone.)

For people who are curious about how well they might have done in Harlan’s class, Mr. Blackman has also unearthed a test from Harlan’s 1899 con law class and has posted it on his blog. I actually have more to say about Mr. Blackman’s blog, but I’m going to have to save it for another post.