Brandeis as Dissenter in Journal of Supreme Court History

05Dec07

Brandeis also gets his share of the spotlight in the Dissenters issue of the Journal of Supreme Court History in Jonathan Lurie’s article “Chief Justice Taft and Dissents: Down With the Brandeis Briefs!” The article is a preview of Lurie’s upcoming biography of Taft and is basically a panegyric to Taft’s days as Chief Justice. The article details Taft’s efforts to foster unanimity on opinions and the reactions of the other justices–particularly Brandeis– to those efforts. My favorite part of the article is the picture of Taft and six other justices looking at a model of the new Supreme Court building. The building was Taft’s idea and Brandeis was vehemently opposed to it–in fact he never set foot in the office that was created for him. His disgust for the building is pretty evident from the look on his face in the picture.

Brandeis and Taft had a complicated relationship. Political foes (to put it mildly) while Taft was president, they were able to put aside their differences once they were both on the court and they even reached the point where they enjoyed each others’ company. Still they often didn’t see eye to eye and would often get frustrated with each other. Lurie cites some quotes by Taft on Brandeis but I wish he had included one of my favorite Brandeis quotes on Taft. In the 20’s Felix Frankfurter wrote down some notes from private conversations he had with Brandeis. Those notes were later edited by Melvin Urofsky and published in the 1985 volume of the Supreme Court Review. Here’s what Brandeis had to say there about Taft:

“It’s astonishing he should have been such a horribly bad President, for he has considerable executive ability. The fact, probably, is that he cared about law all the time and nothing else. He has an excellent memory, makes quick decisions on questions of administration that arise and if a large output were the chief desideratum, he would be very good. He is a first-rate second-rate mind.”

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