There have been many summations of Brandeis’s philosophy over the years, but there is always room for new looks at his life’s work. The latest overview is an article by Joel K. Goldstein and Charles A. Miller called “Brandeis: The Legacy of a Justice” (100 Marquette Law Review 461-495).
Their article actually comes out of research they have done on former Brandeis law clerk, Paul Freund. Taking Freund’s comment that Brandeis was “the most most moral teacher ever to have sat on our highest court” as their starting point, they look at Brandeis’s discretionary opinions and the impact they have had on the Supreme Court and US presidents in the years after his death.
In describing the moral center of Brandeis’s judicial philosophy, they divide his dissents and concurrences into five threads: the rights of the individual, the duties of citizenship vs. the infringement of rights, bigness in both business and government, the inappropriate use of government power, and the necessity of government regulation. (They make the interesting point that with the exception of Ashwander, almost none of Brandeis’s majority opinions have had much historical impact.) After describing how Brandeis’s opinions support these threads of his thought, they go on to show how they have influenced later Supreme Court justices on both sides of the political spectrum.
People looking for a concise introduction to Brandeis’s Supreme Court legacy, or for examples of how morality can shape American jurisprudence are encouraged to read this excellent article.
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While going through the John Marshall Harlan papers here at the University of Louisville, I stumbled across a typewritten transcript of an old Kentucky newspaper article describing a debate between Harlan and William Elliott Simms as they competed for the Congressional seat for the Ashland district in Kentucky. Harlan described his campaign against Simms in his political memoir, but this article goes into more detail as to what the issues that concerned Harlan the politician. Harlan was 26 years old at the time and young Harlan the slaveholder was quite a different man than Harlan the author of the Plessy v. Ferguson dissent. In fact, one of the first things that struck me while reading the article, is how the two opponents strive to prove how much more pro-slavery they are. 19th century Kentucky was indeed a different place.
The article is not, unfortunately, a transcription of the debate. But the writer has a cutting wit that adds an additional level of enjoyment to the piece. I should probably explain a couple things. William Simms was a former state representative who was the candidate of the Democratic Party, which is sometimes referred to as the Democracy here. The Opposition Party only existed for a couple years before collapsing into historical obscurity. Harlan had been a member of the Whig and Know Nothing Parties before joining the Opposition. I have been unable to determine who the unfortunate Mr. Trabue is. The fact that Harlan neglected to mention him in his memoir suggests that maybe he really was the nonentity that the writer of article claimed.
Editorial published in the Western Citizen of Paris, Kentucky, Friday morning, June 10, 1859, commenting upon the views expressed by Harlan and Simms, candidates for Congress, in joint debate.
THE DISCUSSION ON THURSDAY
The candidates for Congress in this district had their first formal meeting, in this place, on Thursday last. The courtroom was crowded, to its utmost capacity, by citizens from all parts of the county, indicating the deep interest which pervades the public mind upon political subjects.
By agreement, Mr. HARLAN, the Opposition candidate, opened the debate. He commenced by a brief but appropriate allusion to himself as the candidate of his party and to the manner in which he had been presented to the people of the District by the large and intelligent convention which met at Lexington on the 18th of May. He said that as he was a candidate for the suffrages of the people, they had a right to know his political opinions,–these he intended to state freely and frankly, and he also intended to call upon his competitor to do the same.
Mr. HARLAN first addressed himself to the slavery question, in the interesting aspect in which it now presents itself to the people of Kentucky. He gave a short, but clear and lucid review of the history of the slavery agitation, bringing it down to the decision of the U.S. Supreme Court in the DRED SCOTT case, by which the much mooted question as to the power of Congress and of the Territorial Legislatures, over that subject, was judicially settled. It having been determined by this decision, that the owners of the slaves had the right, under the Constitution, to take that kind of property into the Territories and that there was no power in Congress or in the Territorial Legislatures, the mere creatures of Congress, to exclude it—indeed, no power on the subject matter except the power to protect, he took the ground that, as a logical consequence from this, Congress had the power, and it was in its bounded duty, to pass such laws as might be necessary for the full protection of the rights of the slave-owner in the Territories, whenever the local Legislatures shall either attempt to destroy his right by unfriendly legislation or shall fail to pass such laws as are necessary for his protection. He showed, from newspaper articles in several Democratic papers in Kentucky, including some of those in this District, that the power as well as the policy of Congressional intervention for the protection of slavery in the Territories was denied by a large proportion of that party in this State, who took the ground, that whatever Territorial legislatures might do for the purpose of driving slavery out, Congress had no right to interfere, and the only remedy open to the injured-slave owner was a resort to the courts. These papers represented Capt. SIMMS as occupying this ground, and Mr. HARLAN called upon him to say whether they represented him properly, and for the purpose of bringing the matter to a practical point, he asked him whether, as a member of Congress, he would vote for a law to punish negro stealing, if the legislature of any Territory in which such a law might be necessary, should fail to enact one.
From this subject Mr. HARLAN passed to a consideration of the financial administration of the government. He showed from documentary evidence, the vast and alarming increase in the public expenditures since the close of Mr. Fillmore’s term, and, especially during the existence of the present administration. He demanded of his competitor an explanation of the manner in which the vast excess of expenditure had been brought about—he wanted him to show what had become of the money. Mr. HARLAN averred that it had been wasted in extravagance and swallowed up in corrupt uses, and for proof of the charge referred to the investigations of last winter, to the letter of Mr. Buchanan, written in 1852 in which that gentleman expressed so much alarm at an expenditure of $50,000,000 the very amount of which was evidence of corruption in its use—to the recorded opinions of Democratic members of Congress, uttered in public speeches, and to other testimony, rendering it certain that a very large proportion of the national revenues are wasted through corruption and incompetency.
Mr. HARLAN was in favor of the purchase and annexation of Cuba whenever that can be accomplished fairly and honorably. He would vote for the necessary appropriations for that purpose whenever a treaty shall be negotiated, but he was opposed to placing $30,000,000 in the hands of the President in advance, for purposes of bribery and corruption. Such an appropriation he regarded as corrupting in its tendency, a dangerous precedent, and in violation of the spirit of the Constitution.
He was opposed to Mr. Buchanan’s bankrupt project for placing State corporations at the mercy of the Federal Courts. He thought the States abundantly able to manage their own affairs.
Mr. HARLAN’s speech was listened to with the most profound attention. He is one of the most agreeable speakers we have ever heard. His personal appearance, and his dignified and manly bearing are exceedingly attractive, inspiring and commanding confidence in all his hearers. The maturity and statemanslike breadth of his views of public policy, the clearness and force with which he expresses them, the fullness of his grasp of the facts and philosophy of our political history, combined with an unsullied personal character, mark him as one destined to a brilliant future.
Mr. HARLAN was followed by Mr. TRABUE. What he said is unnecessary to specify. He is of no consequence in the race except to be in the way and consume time that might be more profitably as well as more agreeably spent. Most of his speech was devoted to a history of his own connection with politics in this district, showing his own importance now and in times past. The only impression left upon the popular mind by this history was, that it had never been Mr. TRABUE’s good fortune to be “the right man in the right place.” He showed very satisfactorily that he was always on hand when he was not wanted, which, we take it, is his present attitude, unless, indeed, as we suspect, the Democracy want him to do the dirty work of dogging Mr. HARLAN and abusing an imaginary body which he is pleased to call “The Frankfort Clique.” We are surprised that any man, with a particle of self-respect, should be content to hold the position of Mr. TRABUE in this contest.
Capt. SIMMS came next. He did his best. His friends say it was the best effort of his life. It certainly was in the manner of its delivery, and in the adroitness and force which he managed his materials for the defense of a bad cause, highly creditable to his ability as a public speaker. And, although his arguments were mostly fallacious and his fine periods made up of mere clap-trap, they produced upon his political friends the same effect as if they had been precisely the reverse of these. They swallowed in all as the most relevant and vital truth.
A considerable part of his speech was occupied in a review of the history of the slavery question, full of errors or imperfections of statement, the whole bearing a wonderful family likeness to the editorial progeny born of the Democratic press during the last five or six years. Most of this had no bearing whatever, upon any present living issue. It was as a gentleman sitting near us remarked, but “the skin of a dead snake.” The object was to show that the Democratic party was always right on the slavery question, and everybody else wrong. He tried to prove, and boldly asserted that he would prove, that a bargain was made, or about to be made, to transfer the Opposition of the South to the Black Republicans of the North. Of course, he failed. The only proofs offered were extracts, taken out of their connection from certain articles in the Louisville Journal, published last summer. If he had read the articles entire, they would have proved the exact reverse of his assertion.
We thought Capt. SIMMS approached the real slavery issue, and the only one of any importance to the South at this time, rather gingerly. He came to it finally, however, and in answer to Mr. HARLAN’s interrogatory, stated that he would “vote to hang the n****r-stealer as high as Haman,” which, we suggest to Capt. SIMMS, is going rather beyond what is thought necessary or humane in most civilized States. But while avowing this cruel purpose, the Captain ridiculed the idea of applying to Congress for the protection of slavery in the Territories. He evidently took his position in favor of “intervention,” so far as he did take that position, under stress of public sentiment in the district, and not because he heartily approved it. He evidently had some compunctions about turning his back upon his friends of the Statesman and Yeoman.
Capt. SIMMS’ defense of the administration against the charge of extravagance was exceedingly weak, but as strong, perhaps, as the case admits of. He could not show what had become of the money. He undertook to lay the blame upon the House of Representatives of the Congress before the last, in which the Democracy were in the minority, and by way of proof read from divers bills before that body, making grants of public money. But, unluckily for this dodge, the bills never passed and of course the money was not expended under them. Capt. SIMMS, in this attempt to throw upon Congress the responsibility of an extravagance, the existence of which can neither be denied nor excused, but follows the example of the editors and other organs of his party. We intend to show the utter fallacy and absurdity of this defense at some future time.
Capt. SIMMS was in favor of the acquisition of Cuba and approves the Slidell thirty million bill. He is willing to give Mr. Buchanan all the money he asks for, which, in our judgment, ought, of itself, to defeat him. Let him appropriate the money in the ordinary and constitutional way, after a treaty is made, but no man ought to be sent to Congress who will vote the public money into the hands of the President until he knows what is to be done with it.
He thought such a bankrupt law as President Buchanan had proposed might be well enough under certain circumstances, but thought it unnecessary at present.
Capt. SIMMS indulged in much glorification of the Democratic party, and, with much fervor, thanked God, that, although once a Whig and a Whig from principle, he was now a Democrat. We suppose he is thankful for the nomination as a candidate for Congress, a favor which he never had the chance to be thankful for as coming from the Whig party, as well as for the “favor to come,” as he fondly hopes, of an election by the people. We don’t think that any man, and especially a Whig, ought to thank God for the mere fact of having become a Democrat. He ought to wait, like Capt. SIMMS, until he receives some tangible benefit from the change.
Mr. HARLAN had fifteen minutes for a rejoinder. He first administered a spirited and well merited rebuke to Mr. TRABUE for that gentleman’s personal attack upon him and his friends, and then turned to the speech of Capt. SIMMS, whose fallacies he exposed, so far as his time allowed, in the most clear and satisfactory manner. It was glorious to see the edifice of argument erected by his opponent tumbling down under his few rapid but well directed blows. It was of the finest and most complete replies we ever heard, condensed into so short a space. Capt. SIMMS rejoined in a speech of fifteen minutes. It was very well done, and satisfied his friends and the speaker himself, we thought, but brought out nothing new or worthy of special notice.
We have thus given a very meagre statement of the points made by the candidates for popular favor. To do more would require much greater space than we have at our command. Of the result we can only say that we are proud of our candidate—that he is worthy of the hearty support of the opposition, whose principles are undoubtedly safe in his keeping.
Simms won the election although Harlan remained convinced for the rest of his life that he lost due to voter fraud. He considered contesting the outcome in court but decided instead to concentrate on building up his legal career–and paying off his $9,000 campaign expenses. After the Civil War broke out, Simms was named one of Kentucky’s senators for the Confederate Congress, even though Kentucky was still part of the Union. Simms survived the war relatively unscathed but his political career was over.
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I recently stumbled upon an old newspaper article that contained an anecdote about Brandeis attending a baseball game that I had never heard before. Normally I would discount a story like this as being too good to be true, but I am going to suspend my disbelief in this case partly because the reporter claims he heard Brandeis’s brother Alfred tell this story numerous times, and also because I really, really want it to be true.
The story takes place at a World Series game in which the Boston Braves were playing. The Braves’s season had gotten off to a terrible start and their coming back and entering the World Series (which they would win) is apparently one of the greatest comeback stories in baseball history. But as Brandeis was not a follower of sports, he probably would have been aware of little of this.
As the reporter tells it:
Next to him…there sat a man who seemed to be rather egotistical, and constantly shouted advice to the players on the field. The future judge stood this for a time and then turned to his neighbor with a word of counsel.
“It’s easy to criticize,” he said, “but don’t you think those men out on the field know more about it than we do?”
His neighbor smiled and would have had every right to answer, “Speak for yourself, John,” but he was satisfied to hand him a card. It bore the name of Tyrus R. Cobb.
If this really happened and that was really was the notoriously prickly Ty Cobb, Brandeis is lucky he just got a business card instead of a punch in the face.
(Taken from the article “Off the Record” by Harry Bloom and published in the November 19, 1938 issue of the Louisville Times.)
Update (11/30/2016): It would appear that Cobb really was in Boston for the World Series. Check out this article about the final game (be sure to look at the footnotes). It looks like this story might actually be true.
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The Louis D. Brandeis School of Law at the University of Louisville had a big week last month. Every year or so, the law school awards the Brandeis Medal to individuals whose lives and work demonstrate a commitment to “the ideals of individual liberty, concern for the disadvantaged and public service.” This year’s recipient was Supreme Court Justice Elena Kagan. Justice Kagan was supposed to come to the law school on September 15 to pick up the award, but she had to postpone her visit for health reasons, (we had a party that night anyway,) and she ended arriving over a month later, on October 24. A luncheon was held in her honor in a suite in UofL’s football stadium that was attended by about 300 professors, students and local lawyers. Normally the medal recipients give a speech, but this year Justice Kagan sat on the stage and answered questions from Brandeis Law School professors Justin Walker (who studied under Kagan at Harvard) and Laura Rothstein. The resulting discussion was light on law and veered more towards the personal. My favorite anecdote involved the confirmation process. While she was making the rounds of the Senate while waiting to be confirmed, one Western senator challenged her on gun control. While admitting she had never fired a gun, Kagan stated that she had always been curious about them and more or less invited herself to a hunting trip on the Senator’s ranch. When the flustered Senator seemed disinclined to accept the invitation, she quickly proposed an alternative: as soon as she got on the bench, she said would ask Scalia to take her hunting with him. Scalia later delightedly agreed, which led to regular hunting trips for the two of them.
After the talk, Justice Kagan was presented with the medal and a pair of Muhammed Ali boxing gloves. She then returned to the law school, where she had a Q&A with the students and then took a tour of the Brandeis papers before flying back to DC that afternoon.
On that same night, the Filson Club hosted a speech by Jeffrey Rosen who was in town to promote his new book Louis D. Brandeis: American Prophet. Rosen’s spoke to a crowd that looked it was slightly larger than the one for Kagan earlier that day, and his enthusiasm for Brandeis was so infectious that when he urged them to read Brandeis’s opinions in Olmstead and Whitney when they got home, I really believed that half of them were going to do it. Rosen came to the law school the next day where I subjected him to a 90 minute tour of the Brandeis archive. Whereas Justice Kagan showed polite interest in the tour, Rosen showed the same amount of enthusiasm as he did during his speech, as I pulled out all of the highlights from the collection: Brandeis’s copy of the Muller v. Oregon brief, his grade school reading primer, a first edition of Other People’s Money with clipped newspaper articles pasted in, his Supreme Court resignation letter, etc. He was even gracious enough to let me take a picture of him reading Frederick Douglass’s letter to John Marshall Harlan.
During the week before, the Supreme Court Historical Society and the law school co-sponsored an event celebrating the centennial of Brandeis’s ascension to the Supreme Court. The night featured a speech by Mel Urofsky, which was followed by a recognition of past Brandeis Medal recipients. Attendees included Laura Rothstein, Brandeis Medal recipients Elena Kagan, Ruth Bader Ginsburg, Stephen Bight, and Sam Dash’s daughter. The event was recorded and will be broadcast on C-Span 3 at 4:55 pm on November 5.
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I have been swamped at work and as a result gotten behind in my Brandeis duties. So here, almost five months late, is my write-up of Louis D. Brandeis: American Prophet by law professor and journalist Jeffrey Rosen, which is part of Yale Press’s series called Jewish Lives. I haven’t read any of the other books in the series, but I suspect that Rosen’s book is different from them in that this book is not so much a biography as it is, as he puts it, “a passionate case of why Brandeis matters today.” And passionate it is; you can feel Rosen’s admiration for Brandeis emanating off of nearly every page.
Rosen doesn’t completely eschew biography as he gives a good summary of Brandeis’s life, peppered with new personal details gleaned from interviews with Brandeis’s grandchildren. But the bulk of the book is devoted to Brandeis’s various causes: regulated competition, industrial democracy, scientific management, unions, regularity of employment, savings bank life insurance, the Brandeis Brief, the Ballinger-Pinchot affair, size and efficiency, interlocking directorates, price fixing, commercial banking vs. investment banking, free speech, privacy, federalism, and Zionism. (I’m forgetting a few but you get the idea.)
The ongoing theme is about how Brandeis was “Jefferson’s philosophical successor.” Rosen posits a Jefferson vs. Hamilton model of economics and shows how reflects Brandeis’s philosophy and his causes: small vs. large, agricultural vs. industrial, liberty vs. efficiency, etc. He makes a particularly convincing argument as to how Jefferson (and Alfred Zimmern) influenced Brandies’s decision to become a Zionist.
In the last chapter, Rosen plays the dangerous game, and favorite conference topic, of predicting how Brandeis would react to current issues if he were alive today: such as privacy and the cloud, constant surveillance, Citizen’s United and the right to be forgotten. It is, of course, impossible to say how accurate Rosen’s guesses are, but they make for provocative reading.
In the course of preparing for this post, I found a video on YouTube of a conversation about Brandeis between Rosen, Mel Urofsky and Philippa Strum, which was recorded on June 1, the 100th anniversary of the Senate’s confirmation of Brandeis’s Supreme Court nomination. Rosen’s enthusiasm for the topic is palpable as it is for sharing the stage with Urofsky and Strum, although that doesn’t stop him from comically cutting off Urofsky a couple times. There is also a couple interesting debates over just how much Brandeis was influenced by Jefferson and just why Brandeis became a Zionist.
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(I have been doing this blog for so long that I am starting to lose track of what I have written. I thought I had addressed this issue in an earlier post but I cannot find it. If I do find an earlier post on this subject, I will probably delete it in favor of this one.)
I have discovered a series of YouTube videos that seem to have been created by robots that are trying to teach humans how to speak English correctly. There is even one that claims to show the correct pronunciation of Louis Brandeis. The most striking thing about this video is that it is dead wrong and is unfortunately muddying what is already a divisive (in the most minor way possible) issue: whether Brandeis’s first name is pronounced Lou-is or Lou-ee. The robots claim it is Lou-is, but are they right?
The final word on this raging controversy has to be Todd C. Peppers in his article “A Justice by Any Other Name: the Case of Louis D. Brandeis,” which was published on pages 8-9 in the Volume 19, 2nd issue of The Supreme Court Historical Society Quarterly. (Unfortunately, I cannot find any copies of this article online.) Apparently, during a conversation with Brandeis’s grandson Frank Gilbert, Peppers made the mistake of referring to Brandeis as “Lou-is.” Gilbert quickly corrected him: “It was pronounced ‘Lou-ee’ not ‘Lou-is’.” After having heard it pronounced “Lou-is” his entire life, Peppers was intrigued and decided to look further into the matter. Brandeis’s other grandchildren, Alice Popkin and Walter Raushenbush also confirmed the “Lou-ee” pronunciation and he uncovered anecdotes about Brandeis’s daughter Elizabeth Raushenbush and the son of Brandeis’s law partner Edward McClennen that confirmed it as well.
One would think that this would be persuasive enough, but Brandeis biographer Lewis Paper holds a contrarian view. He suggests that Brandeis used the “Lou-ee” among close acquaintances and that he used “Lou-is” in formal and professional situations. One can understand his reluctance to accept what seems like unimpeachable evidence. Nowadays the name “Lou-ee” seems more appropriate for a pool hustler than a Supreme Court justice. But, not only is there no historical evidence for this dual pronunciation, I would argue that there is plenty of circumstantial evidence against it.
First of all, there is Brandeis’s uncle Lewis Dembitz. Dembitz’s first name was originally Ludwig, but once he emigrated to America, he anglicized it to Lewis. Lewis is clearly pronounced “Lou-is.” If Brandeis’s parents wanted their son’s name to be pronounced “Lou-is” surely they would have spelled it the same as his uncle’s.
Secondly, Brandeis is the only one of his siblings to have been born in Louisville, Kentucky. There is no evidence to back this up, but I have have always felt that he was given the name Louis in honor of their new home. And as natives from the city are quick to point out, the city’s name is pronounced “Lou-ee-ville,” not “Lou-is-ville.”
And for a final bit of evidence, we can look to, of all places, HBO’s comedy Veep (or for you classicists out there, Seinfeld). Actress Julia Louis-Dreyfus has always had to tell people, her name is pronounced “Lou-ee-Dreyfus” not “Lou-is-Dreyfus.” As she explained in an interview once, “It’s a French thing.” That is why Louisville is pronounced the way it is; it is named after the French king Louis XVI. And Brandeis’s parents were cultured people, and the idea of 19th century cultured people giving their children names with French pronunciation is not that extreme.
But what about those YouTube robots? Should artificial intelligence finally be considered more accurate than human intelligence? Apparently not. Not only do they mis-pronounce Louis but they can’t even pronounce Brandeis right.
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October 9, 2016 is the 100th anniversary of Louis D. Brandeis’s first day on the Supreme Court. To help celebrate the anniversary, Laura Rothstein has published on SSRN an expanded version of her post on this blog about Michael H. Roffer’s The Law Book, which is a compilation of 250 legal milestones from history. In her original post, she discussed the milestones Brandeis was directly responsible for as well as the many others that were the result of his influence. Rothstein’s new article uses The Law Book as a starting point to discuss the ten issues Brandeis is best known for and how his influence in these areas continues to shape the world today. It’s a great article for people looking to see just how pervasive Brandeis’s ideas are.
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