Brandeis and Harlan Roundup March 2016


I have just discovered a rash of Louis D. Brandeis and John Marshall Harlan related articles. Here is a quick run down of them.

Mel Urofsky has penned an article related to the upcoming nomination of a successor to Justice Scalia that has been reprinted in a number of newspaper. He argues that Brandeis was the most unique justice to serve on the Supreme Court and that there will probably never be another one like him. He is almost certainly right.

Nicholas Lemann had an article (“Notorious Big”) published in the Books section of the March 28, 2016 issues of The New Yorker. He writes about the historical conflict between populism and big business/government in presidential elections and its current iteration in the contest between Bernie Sanders and Hillary Clinton. Naturally, Brandeis’s name comes up when he discusses the progressive era and he devotes a good chunk of the article to Brandeis’s views on the matter.

Notre Dame professor Barry Cushman has an article in the Winter 2016 issue of The Green Bag (“Justice Brandeis and Substantive Due Process” v. 19, no. 2, pp.145-156) where he argues that Brandeis’s use of the Due Process Clause in his opinions is more nuanced than traditionally thought.

And finally, Clare Cushman has added to the growing body of study relating to Supreme Court clerks with an article in the latest issue of the Journal of Supreme Court History. (“Fountain Pens and Typewriters: Supreme Court Stenographers and Law Clerks, 1910-1940” v. 16, no.1, pp.39-71.) Brandeis is not mentioned at all in the article (there has already been plenty written about his clerks) but there is a section devoted to Harlan and his last clerk, John E. Hoover (J. Edgar’s uncle.) My only quibble with the article is that when she cites a letter written by Mr. Hoover her footnote places the original at the University of Louisiana instead of its proper home here at the University of Louisville. (Boo!) I would normally blame the editor for a mistake like that instead of the author, but since Ms. Cushman is also the editor of the journal, I don’t see any way of her escaping the blame. That small mistake aside, the article is a great read and ought to be enjoyed by anybody with an interest in Supreme Court history. (The article is available online, but only for people with access to Wiley’s database.)

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