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. 4 | Louis D. Brandeis | 100 | Then & Now 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.