essays from brandeis university's commemoration of the 100th anniversary of the appointment of ...

252 Pages·2017·3.36 MB·English

ESSAYS FROM
BRANDEIS UNIVERSITY’S
COMMEMORATION OF THE
100TH ANNIVERSARY
OF THE APPOINTMENT
OF LOUIS D. BRANDEIS
TO THE UNITED STATES
SUPREME COURT
Edited by Daniel Terris
and David J. Weinstein
These essays were commissioned from participants in a 2016 celebration
at Brandeis University commemorating the 100th anniversary of the
nomination and confirmation of Louis D. Brandeis to the United States
Supreme Court.
Support for the centennial celebration and this publication comes from
Brandeis University and from the Louis D. Brandeis Legacy Fund for
Social Justice, founded by Jules Bernstein ’57 and his wife, Linda Lipsett.
Celebrating the 100th Anniversary
of Louis D. Brandeis’ Appointment
to the U.S. Supreme Court
CONTENTS

n Introduction 3
Daniel Terris
n PART I – LOUIS D. BRANDEIS, THE SUPREME COURT AND AMERICAN DEMOCRACY
Lessons Learned from Louis D. Brandeis 9
Ruth Bader Ginsburg H’96
n PART II – CITIZENSHIP AND THE ECONOMY: LABOR, INEQUALITY AND BIGNESS

The Last Autonomist 23
Richard Adelstein
What a Little Sunlight Can Do: Learning from the Economic Legacy of Louis D. Brandeis 41
Alexis Goldstein
n PART III – PRIVACY, TECHNOLOGY AND THE MODERN SELF

The Declining Significance of Home: Privacy “Whilst Quiet” and of No Use
to Artists or Anyone 69
Anita L. Allen

Privacy Imperiled: What Would Brandeis Make of the NSA & Edward Snowden? 89
Shane Harris

Translating Justice Brandeis’ Views on Privacy for the 21st Century 101
Steven A. Mirmina ’89
n PART IV – JEWISH JUSTICES AND THE EXPANDING DIVERSITY OF THE SUPREME COURT

The Appointment of Louis D. Brandeis, First Jewish Justice on the Supreme Court 123
David G. Dalin PhD’77

Diversifying the Supreme Court: Brandeis, Marshall, Sotomayor 147
Linda S. Greene
n PART V – SPEECH AND PARTICIPATION IN A DEMOCRACY:
WHAT ARE THE RIGHTS AND RESPONSIBILITIES OF THE EDUCATED CITIZEN?

Brandeis, Speech, and Money 183
Leslie Kendrick

The Brandeis/Citizens United Question 197
Jon D. Levy
Speech and Democracy: The Legacy of Justice Brandeis Today 215
Philippa Strum ’59

n Selected Bibliography 241
Anu Shah ’16
n Organizing Committee 248
Photo courtesy of the Robert D. Farber Archives & Special Collections Department, Brandeis University

Louis D. Brandeis 100: Then & Now
Daniel Terris*
Then
On January 28, 1916, President Woodrow Wilson announced that he was nominating Boston
attorney Louis Dembitz Brandeis to fill a vacancy on the Supreme Court of the United States. The
58-year-old Brandeis had an inkling what he might be in for: “I am not exactly sure,” he wrote to
his brother Alfred, “that I am to be congratulated, but I am glad the President wanted to make the
appointment and I am convinced, all things considered, that I should accept.”
The public reaction to the president’s announcement was swift and explosive. Former
President William Howard Taft, denouncing the nomination, called Brandeis “a muckraker, an
emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite … who is utterly
unscrupulous…a man of infinite cunning…of great tenacity of purpose, and, in my judgment, of
much power for evil.” Even the liberal New York Times was unhappy, complaining that Brandeis
“is essentially a contender, a striver after change and reforms. The Supreme Court by its very
nature is the conservator of our institutions.”
The qualities that concerned Taft and the Times are the very things that we at Brandeis University
value so much in our institution’s namesake. As a young lawyer, he had taken on the inquisitive press
and defined, for the first time in American life, a “right to privacy.” Later, when taking legal action
to limit the number of hours that women were forced to work in certain industries, he invented a
new form of argument – relying on data, not just legal theory – and the “Brandeis Brief” became
a staple of American law. When the growing power of mammoth financial institutions threatened
to overwhelm the interests of small investors, he argued eloquently for limits on the ways in which
financiers could use “other people’s money.” And he spoke explicitly about his commitment to
“social justice,” an idea that Brandeis and other prominent thinkers of the progressive era brought
into the public lexicon – and which remains a cornerstone of the Brandeis University ethos.
brandeis.edu/ldb-100 | 3
The battle over the Brandeis nomination made headlines across the country for more than four
months, and it is clear that some of the opposition to the nomination had its roots in anti-Semitism.
The Senate Judiciary Committee held weeks of hearings, but according to the tradition of the time,
the nominee himself was not invited to speak on his own behalf or answer their probing questions
about his judicial philosophy. Instead, Brandeis helped to orchestrate a quiet but effective campaign
from his home in Massachusetts to try to shore up political support for his confirmation.
On June 1, 1916, Wilson’s vice president Thomas Riley Marshall, in his role as president of the
Senate, announced that Louis D. Brandeis had been confirmed as an associate justice of the
Supreme Court by a vote of 47 to 22. Brandeis was on the train from his office in Boston to his
summer home in Dedham, Massachusetts, when the Senate was voting. When he arrived, his wife
Alice met him at the door with a new greeting: “Good evening, Mr. Justice Brandeis.”
Brandeis served as a justice of the Supreme Court for the next 23 years, creating a legacy of
brilliant and innovative jurisprudence that makes him not only one of the great justices, but one
of the primary shapers of the modern-day United States. His dissent in Olmstead v. the United
States, which argued for limiting the government’s use of technology to spy on its own citizens,
continues to influence legal doctrine in the age of Edward Snowden. And his famous concurring
opinion in Whitney v. California made freedom of expression not just a constitutional principle
but an active force in American life. Evil and destructive rhetoric, he insisted in Whitney, must be
met with “more speech, not enforced silence.”
Those who feared his appointment were wrong about at least one thing: Brandeis was no activist
lawyer determined to turn upside down the cherished traditions of the Supreme Court. He would
prove, in fact, to be a proponent of judicial restraint. He believed deeply in American democratic
institutions, which meant for him that Congress and the president ought to make the laws, and
Supreme Court justices should avoid interpreting the law to suit their moral or political positions.
Above all, Louis Brandeis believed in creating space and freedom for the individual to live a
meaningful life as an engaged citizen of a democracy. Much of his jurisprudence had as its
ultimate end the goal of protecting the space where citizens could learn, and where ideas could
be debated. For that reason, it is fitting that the founders of this university chose to honor him
as its namesake. His greatest legacy is the meaning that he found in robust civic and intellectual
engagement, a hallmark of Brandeis University from its founding to the present day.
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Now
Over the course of the winter and spring of 2016, Brandeis University marked the centennial of
the nomination and appointment of Louis D. Brandeis to the Supreme Court of the United States
with a series of events, exhibitions and special occasions.
The celebration kicked off on January 28, 2016, with “Louis Brandeis, the Supreme Court and
American Democracy,” featuring Justice Ruth Bader Ginsburg and an all-star cast of judicial,
scholarly and journalistic commentators.
Five panel discussions followed during February, March and April, focused on different aspects of
the varied and remarkable career of Louis D. Brandeis (“LDB”). The life and career of Brandeis
served as the starting point for the kind of vigorous debate that for him characterized the best of
American life.
The contributors to our LDB 100 panels brought to our conversations a variety of intellectual
and professional perspectives. Scholars, journalists, judges and activists joined in the kind of
robust multi-disciplinary discussion that the author of the original “Brandeis Brief” would have
cherished.
This Collection
In this publication, 11 of the contributors to our LDB 100 series reflect on the extraordinary
achievements of Louis Brandeis in light of contemporary developments in law, politics and
society. They demonstrate that the legacy of Justice Brandeis is a dynamic and powerful current in
21st century American life.
Ruth Bader Ginsburg’s address from “Louis D. Brandeis, the Supreme Court and American
Democracy,” the kickoff event for the LDB 100 series, focuses on the development of the
“Brandeis Brief” for Brandeis’ argument in Muller v. Oregon, followed by Justice Ginsburg’s
reflections on how the thinking of Louis Brandeis has had a direct influence on her own thinking
and career.
The other 10 essays, commissioned as original contributions to the LDB 100 series, are grouped
(as were our panel discussions) around key themes:
brandeis.edu/ldb-100 | 5
Citizenship and the Economy: Labor, Inequality and Bigness
Richard Adelstein and Alexis Goldstein examine Louis Brandeis’ concerns about the power and
influence of large corporations, and consider the implications of his ideas in an era when the
issue of income inequality has once again become part of the national discourse.
Privacy, Technology and the Modern Self
Anita Allen, Shane Harris, and Steven Mirmina return to LDB’s seminal essay on “The Right to
Privacy” and his landmark dissent in Olmstead v. United States in light of the pervasive intrusions
on private life that technology has made possible in our time.
Jewish Justices and the Expanding Diversity of the Supreme Court
David Dalin and Linda Greene review the extraordinary battle over the 1916 nomination process,
and trace the history of the changing racial, ethnic and gender composition of the United States
Supreme Court over the following century.
Speech and Participation in a Democracy: What are the Rights and Responsibilities of the
Educated Citizen?
Leslie Kendrick, Jon Levy and Philippa Strum trace the Justice’s evolution on issues of freedom of
speech and expression, culminating in his famous concurring opinion in Whitney v. California.
Their essays focus particularly on Brandeis’ overriding conviction that the health of American
democracy depends on active citizen participation in democratic debate and practice.
Together these contributions, and the conversations hosted at the University and archived on
online, represent the continuing vitality of the thought and spirit of Louis D. Brandeis, a man
who welcomed the challenges of profound social and political change, and whose responses to
those challenges resonate to this day.
Daniel Terris
Chair, LDB 100 Organizing Committee
*Daniel Terris is the director of the International Center for Ethics, Justice and Public Life at Brandeis
University. An intellectual historian, he has written on race and ethnicity in the United States, business ethics, and
international law and justice. His books include Ethics at Work: Creating Virtue in an American Corporation and
The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (with Leigh Swigart
and Cesare P.R. Romano).
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PART I :
LOUIS D. BRANDEIS,
THE SUPREME COURT
AND AMERICAN DEMOCRACY