The Brandeis Myth and the Brandeis Dichotomy: Are 70 Years of Supreme Court Decisions Based on a Lie?

10Jun08

It has been almost 70 years since Brandeis retired from the Supreme Court and during that time his place in the pantheon of all time great justices has seemed so secure that it is rare to see a negative word written about him. So it’s all the more startling to find a new article in the North Carolina Law Review that not only casts Brandeis in an unflattering light, but also calls into question many of the decisions reached by the Court since 1932.

Lee J. Strang and Bryce G. Poole’s article “The Historical (In)Accuracy of the Brandeis Dichotomy: An Assessment of the Two-Tiered Standard of Stare Decisis for Supreme Court Precedents” 86 North Carolina Law Review 969, makes the argument that Brandeis misrepresented the historical practice of the court when it came to stare decisis.

The article is about the Court’s practice of giving less precedential weight to earlier decisions regarding constitutional issues than to ones regarding statutory issues. Strang and Poole refer to this as the “Brandeis Dichotomy.” This practice was first mentioned in a Supreme Court opinion in Brandeis’ 1932 dissent in Burnet v. Coronado Oil & Gas Co. In his opinion, Brandeis states that this has historically been the Court’s practice (Strang and Poole refer to this as the “Brandeis Myth”) and lists many cases that the Court had previously overruled that supposedly proves his point.

Since 1932 many justices on both sides of the ideological fence have used the Brandeis Dichotomy to overrule previous cases. But there’s a problem: Strang and Poole say that Brandeis’ claim that the Court has always given less weight to previous constitutional cases is simply not true. They go through all of the cases Brandeis cited in Burnet and find no evidence to substantiate his claim. While it is true that the cases Brandeis listed were overruled, they were actually done so for a variety of other reasons. And Strang and Poole could find no other evidence in any other cases to support Brandeis’ claim of a historical practice. In fact, they say that prior to 1932, the Court was more likely to overrule statutory cases than they were constitutional ones.

Strang and Poole don’t actually accuse Brandeis of lying, but they strongly hint at it. This is a strong accusation and it raises a host of questions. Did Brandeis deliberately mischaracterize Supreme Court practice or have Strang and Poole completely misread those cases? If they are right, are all of the cases decided on the basis of Brandeis’ dissent in Burnet now bad law? Or are 70 years of decisions enough to form a precedent? It’ll be interesting to see how this all plays out.

Strang and Poole’s article can be found on SSRN.

Burnet v. Coronado Oil & Gas Co. can be found on Justia.com.

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