The Jewish Jefferson
Most Americans know or remember Supreme Court justices by their politics and, occasionally, by the quality of their prose. Too often, legal scholars and law students reserve to themselves the weighty task of comparing justices’ judicial philosophies or assessing a jurist’s impacts on modern American law.
So with the release of Louis D. Brandeis: American Prophet (Yale University Press, 2016), which commemorates the hundredth anniversary of Brandeis’s Supreme Court confirmation, Jeffrey Rosen offers something uniquely valuable to the public: a sharply focused, sub-300 page examination of Justice Brandeis’s life, philosophy and impact on such politically-charged issues as right to privacy, freedom from electronic surveillance and “the curse of bigness” in government and private industry. Yes, you read that correctly. The ever-prescient Brandeis, who served on the Supreme Court during an era of silent movies and Henry Ford’s Model T automobile (1916-1939), foresaw the modern conflict between citizens’ Fourth Amendment right to be secure in their “persons, houses, papers and effects,” and the State’s security interest in conducting electronic surveillance on citizens’ communication devices. This is one of the reasons that Mr. Rosen calls Brandeis an “American Prophet”.
Mr. Rosen, who is also president and CEO of the National Constitution Center, makes a compelling case that Brandeis was among the most “farseeing constitutional philosophers of the twentieth century.” Prophet somehow manages to be both crisply written and densely informative, introducing Brandeis’s brilliant legal reasoning to a larger audience than ever before. Below is an edited transcript of our conversation with Jeffrey Rosen.
Q: Your book makes a point that Justice Brandeis was prescient in many of his positions and opinions, hence the subtitle “American Prophet”. Please cite a few instances in which his views and thinking foreshadowed contemporary situations.
Brandeis was the greatest prophet of electronic privacy of the twentieth century. In his path-breaking dissenting opinion in Olmstead v. U.S. (1927), where the Court upheld warrantless wiretapping, Brandeis had wanted to refer to a new technology, television, but misunderstood it as a two-way technology, where people could see each other from both ends of the camera. (He anticipated Skype!) Instead of referring to television directly, Brandeis somehow imagined a world of web cams and FMRI brain scans where electronic surveillance can invade cognitive liberty without physical intrusions into the home. Here are his prophetic words:
Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.
Brandeis insisted on translating the Fourth Amendment to the Constitution so it would protect as much privacy in the age of the wires as the Framers took for granted in the eighteenth century.
Brandeis was similarly prophetic in anticipating the crash of 1929. “I wish to record my utter inability to understand why a lot of folks don’t go broke,” he wrote three years earlier, predicting “a breakdown within a year.” And his analysis of why the financial system went bust in the 1929s – because greedy oligarchs like J.P. Morgan took reckless risks with what Brandeis unforgettably called “other people’s money,” investing in financial instruments too complicated for any one to measure their true value – proved similarly prophetic in anticipating the crash of 2008.
Q: Since your book is aimed at a general audience rather than legal scholars, talk a bit about the conception of the Brandeis brief and its significance and importance to the legal process today.
Brandeis called the Brandeis brief “what every fool knows.” It was path-breaking in assembling facts and empirical evidence in an attempt to persuade judges about the real world implications of legal decisions. Brandeis filed the original Brandeis brief in a case called Muller v. Oregon (1908), in which he persuaded the justices to uphold maximum hour laws for women workers by offering reams of statistics about the effects of poor working conditions on women’s health. The Brandeis brief was so influential that it inspired Thurgood Marshall when he filed his historic briefs arguing that school segregation was unconstitutional because of its effects on the education of African-American students. Justice Ruth Bader Ginsburg told me for the book that the Brandeis brief also inspired her path-breaking briefs as head of the ACLU women’s rights project, which persuaded the Supreme Court to strike down gender discrimination. She was inspired by the Brandeis brief in Reed v. Reed (1971), a case challenging a state law preferring men to women as estate administrators, which was self-consciously Brandeisian. “The Reed brief was intended to be kin to a Brandeis brief, replete with social and economic references,” Justice Ginsburg told me. “He was the model for our presentation of information showing what conditions for women really were.”
