Lost Brandeis Opinion Posted on Web


The Louis D. Brandeis School of Law is not the only school that has a collection of Brandeis papers.  Harvard has a very large collection that is devoted almost exclusively to his time on the Supreme Court. (Brandeis University has a collection as well–mostly papers donated to it by Brandeis’ daughter Susan Gilbert.) The papers at Harvard were supposed to come to the University of Louisville, but after Brandeis’ death Felix Frankfurter (who never particularly shared Brandeis’ interest in UofL) managed to get the papers diverted to Harvard. Which is a shame, because the collection is a particularly fascinating one. Brandeis was a compulsive re-writer of his opinions, sometimes writing as many as 15 or 20 drafts. And the collection contains the drafts for nearly every opinion Brandeis wrote for the court, which make a great window into Brandeis’ thought processes.

Harvard made a microfilm copy of the collection which is available at a few libraries throughout the country. But now it looks like they are digitizing the collection and putting it on the web. And they have started with a bang. Their first posting is 7 drafts of a previously unpublished opinion: Ruthenberg v. Michigan (1927.) Never heard of it? That would be because after the arguments were made but before the Court’s decision was announced, Ruthenberg, the petitioner, died, so the case was dismissed. It was a First Amendment case that predated Whitney, and had it been published, it is possible that it might have eclipsed that landmark opinion as one of the great defenses of free speech. But you can decide that for yourself–provided that you can decipher Brandeis’ particularly messy handwriting.

A tip of the baseball cap to Kurt Metzmeier who told me about this.

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