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Middle Name. Brandeis^S Nomination Tc THE SUPREME COURT HISTORICAL SOCIETY VOLUME XXV NUMBER 3, 2004 JUSTICE BRANDEIS AS LEGAL SEER By Justice Stephen G. Breyer* *Justice Breyer delivered this address on February 16, - ... 2004 at the Brandeis School ofLaw of the University of Louisville, at which time he was presented with the schools - highest honor, the Brandeis Medal. The Medal is given annually to an individual whose life reflects Justice Brandeis's committment to the ideals ofindividual liberty, concern for the disadvantaged, and public service. The lecture was ' •P previously published in 42 Brandeis Law Journal 711-720. ' Tj^ It is abridgedhere with permission. ^ Itis an honor to be asked to give this lecture, associated M* with Justice Louis Brandeis. To set the scene, let me remind ^^^^u of several basic biographical facts of Brandeis's life. Louis Brandeis was born here in Louisville in 1856. A few years earlier, his family had left Prague, fearing a ^ conservative reaction to the failed democratic revolution there. The family prospered as merchants and was able to giveLouis : a good education—both here in Louisville and in Germany, " where he attended high school. Although Louis's family was Jewish, they did not observe Jewish customs or religious practices. Louis maintained that secular life, although he felt the influence ofhis uncle Lewis Dembitz, a practicing lawyer and orthodox Jew; indeed, he took Dembitz's last name as his Following a four-month confirmation battie, Louis Dembitz middle name. Brandeis^sBrandeis's nomination tcto the Supreme Court was confirmed Brandeiswasabrilliantlawstudent, lawyer, and judge. I June 1,1916, by a Senate®vote of 47 to 22 should like to read an excerpt (quoted by Tom McCraw)from a letter about him written by a fellow studentat Harvard Law found nothing. HisH friend said—Go and ask School. Brandeis, it says: Brandeis—he knowknows everything—perhaps he will Graduated last year from Law School andis now know where your bobook is—He went and asked. Said taking a third year here—was the leaderof his class Brandeis - "Yes- go iinto the Auditor's room, and look and one of the most brilliant legal minds they have on the west side of the room, and on the sill of the ever had here—and is but little over twenty-one withal. second window, and you will find your book" - And Hails from Louisville—is not a College graduate, but it was so.' has spent many years in Europe,. .. Tall, well-made. ThisletterThis lettersuggests thattl Brandeis was omniscient, indeed, dark, beardless, and with the brightest eyesI ever saw. a seer, a matter to which I shall return. Is supposed to know everything and to have it always Brandeis's professiotprofessional accomplishments livedup to his in mind. The Profs, listen to his opinions with the lawschool reputation. ForF( thirty years, first with hispartner greatest deference, and it is generally correct. There Samuel Warren, andandlater latei with other associates, he practiced are traditions of his omniscience floating through the law inBoston, where heturned t hisraw intelligence, powerful school. One I heard yesterday—A man last year lost legal imagination, unusu,unusual capacity for hard work, and love his notebook ofAgency lectures. He hunted long andof advocacy into a highlhighly successful career. That is to say. Continued onpage 12 A Letter from the President each year. This was formally named the Leon Silverman basis each year, in presenting the National Heritage Lecture. Ofparticular interest to me have been the recreations of Lecture Series to honor our distinguished Chairman of the The lecture returns to the Supreme Court Historical Society oral arguments before the Court in famous cases ofthe past. The per- board for his outstanding leadership during his 11 years as in 2005. The topic will be announced in coming months. For example, several years ago the early case of Chisholm v. forms President ofthe Society. There are usually five orsix lectur^^ From time to time, special lectures ofone kind or another Georgia was reenacted,(or more accurately, re-imagined)with primarily through in each series; they are held in the courtroom ofthe Supren^B ^ffe presented either in Washington or in other parts of the Chief Justice Marshall being represented by .Tustice Antonin the com- Court and last about one hour each, including an introduction country, as farther pointed out below. Scalia (in fact, he represented the entire Marshall Court that mittees: the Exec- ofthe speaker by one ofthe Justices who acts as host for the (a) Other Educational Programs evening). When the case was originally argued in 1793, ^^^HEki^Klr—... utive Committee, evening, with a reception afterwards; and are well attended. One ofthe most successful activities ofthe Society is the Attorney General Edmund Randolph appeared as private which meets quar- The text of each lecture is subsequently published in the conduct ofthe Summer Institute for high school teachers. A counsel for Chisholm. Contending that the Supreme Court terly and is re- Journal ofSupreme Court History, thereby preserving and total of 60 teachers come to Washington in two separate lacked jurisdiction ofthe case, the State ofGeorgia declined sponsible for the further disseminating the fmits ofthe speakers' efforts. sessions in June of each year for an intensive indoctrination to appear (unwisely in retrospect), and no member of the ^^HHH governance of the Through experience it has been concluded that the most about the Constitution and the role of the Supreme Court. Supreme Court bar accepted the invitation of the Justices to .^4^10119^1 effective way ofcreating an interesting lecture series is by the The participants then share this knowledge with other teachers speak in its behalf. In the recent recreation. Solicitor General tween annual meet- use ofa thematic approach. The theme for the Leon Silverman and students throughout the nation. Thus far a total of 545 Seth Waxman, a member of the Society's Executive «,"| ings; ten standing Series this past year was Advocacy before the Supreme Court. high school teachers have participated in the Washington Committee, appeared and argued for Chisholm. Former committees that The lecture series for 2005, which will be presented between sessions. The Summer Institute is so popular that the Society Attorney General Griffin Bell then accepted the invitation of submit reports February and May 2005, will have the theme ofMr. Jefferson is exploring ways of increasing the number of participants. the Court to appear for the State ofGeorgia and he presented recommendations and the Supreme Court, and will focus on President Thomas In addition, the first New York City Supreme Court a spirited argument but the outcome was the same, ofcourse. at each meeting of the Executive Committee; and various Jefferson, the Supreme Court, John Marshall and the initiative was held this past November in New York at the As you know, this decision precipitated the passage of the special committees, such as the ad hoc committee that Constitution. As in the past, an outstanding group ofscholars offices ofFried, Frank, Harris, Shriver & Jacobson LLR The Eleventh Amendment a few years later. successfully helped bring about the passage of the John and historians have agreed to make presentations. In addition Society received a generous grant from the Carnegie In anotherreenachuent, Philip Lacovara andTeresa Wynn Marshall Commemorative Coin Bill this year. All of the to the lectures being given in Washington, the Program Corporation of New York to implement this program, which Roseborough, currently an Executive Committee member, committees are of vital importance to the well-being of the Committee is exploring the possibility ofreprising one or more hopefully will serve as a model for future out-of-town presented the arguments in Gibbons v. Ogden, with Justice Society but the core substantive activities are planned and at a suitable venue in the State ofVirginia. This would provide seminars. This is an expensive endeavor but worthy of the Scalia once again graciously presiding. The courtroom was implemented primarily by three of them— the Acquisitions another opportunity for the Society to expand its geographic full support of the Society in my judgment. It is hoped that filled to capacity on each ofthese occasions. I am hopeful Committee, the Program Committee, and the Publications wings, so to speak. other law firms and foundations will be willing to fund the that other such reenactments can be scheduled to take place Committee. One of the highlights of the year is the Annual Lecture cost of programs in their home states. hereafter. In the last issue ofthe Quarterly, I discussed the work of that is delivered in the Supreme Court courtroom on tli^^ • These programs are made possible by avery happy There are other programs that because ofspace limitations the Acquisitions Committee. In this issue I will summarize afternoon ofthe day on which the Annual Meeting and Dinn^B Irtnership between the Society and Street Law, and the I have not attempted to describe. I hope the foregoing the programs ofthe Society that are planned and supervised take place— usually the first Monday in June. Almost all of Society is grateful for its support and valuable assistance. You demonsti'ates that the Program Committee is doing a splendid by the Program Committee. The next issue ofthe Quarterly the present members of the Supreme Court have delivered will read more about the 2004 Summer Institute sessions job for the Society, and I want to express my appreciation to will feature the Publications Committee. Hopefully these annual lectures in the past and other distinguished speakers administered by Street Law on page 16 of this issue, where all ofits members and to the staffers who provide assistance letterswill givenewermembersa betterunderstandingof what have included U.S. Court of Appeals judges and prominent you will learn in more depth about its approach to teaching to the committee.
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