Brandeis: the Legacy of a Justice Joel K

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Marquette Law Review Volume 100 Article 5 Issue 2 Winter 2016

Brandeis: The Legacy of a Justice Joel K. Goldstein Saint Louis University School of Law

Charles A. Miller Lake Forest College

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Repository Citation Joel K. Goldstein and Charles A. Miller, Brandeis: The Legacy of a Justice, 100 Marq. L. Rev. 461 (2016). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss2/5

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 38800-mqt_100-2 Sheet No. 88 Side A 02/22/2017 09:25:38 468 .... PINIONS ...... 464 O ** ...... 491 ORK W ILLER EHAVIOR A. M B UDICIAL J ISCRETIONARY S D ’ of the United States ...... 488 ...... of the United States S HARLES ’ C UDICIAL J Teacher ...... Teacher ...... 473 RANDEIS AND * B RANDEIS Later Justices ...... 484 ...... Later Justices B ODEL OF ) 2/16/17) 11:38 AM ture Doctrine ...... 468 ...... ture Doctrine M S USTICE ’ ...... 494 ELETE J D OLDSTEIN USTICE J OT ...... 462 N O K. G (D RANDEIS RANDEIS B B OEL DOCX J -P. VERVIEW OF MPACT OF I O ILLER N . . The Source of Fu HE USTICE USTICE NTRODUCTION _M A B. The Most Powe rful Moral J C. Brandeis’s Students: C. Brandeis’s D. Brandeis’s Students: Presidents T A One hundred years after his appointment, Justice Louis D. Brandeis re- after his appointment, Justice Louis One hundred years BRANDEIS: THE LEGACY OF A JUSTICE OF A JUSTICE LEGACY THE BRANDEIS: M K . Emeritus Professor of Politics and American Studies, Lake Forest College. OLDSTEIN C Y IV III. * Vincent C. Immel Professor of Law, Saint Louis University School of Law. ** The authors would like to thank Stacey Osmond, Zachary Merkle, Alex, Davis, and Jordan Buchheit, Stepha- past or current students at Saint Louis University School of Law, for research assistance and Law nie Haley for administrative help. They are also grateful to Lesley Schoenfeld of the Harvard Library School Library and Scott Campbell of the University of Louisville Brandeis School of Law for their help. II. G V. J V. mains a distinctive and unusually influential figure in the history of the Su- and unusually influential figure mains a distinctive is not remembered many other great justices, Brandeis preme Court. Unlike Rather, what isfor his majority opinions. distinctive about him is the extent to continue to influence his dissents and concurring opinions which so many of 75 years after he retiredjustices more than after he joined the and a century Court. Whereas value as legal prece- cite majority opinions for their justices retired justice due to the the dissents and concurrences of a dents, they invoke of his or her reputation. Signifi- power of his or her ideas or the credibility to turn to his classic dissents and con- cantly, Brandeis's successors continue discretionary opinions of other justices. currences more often than to the confirms the insight of Paul Freund, Their continuing reliance on Brandeis law clerks that Brandeis remains "the one of the Justice’s most distinguished most powerful moral teacher" to have served on the Court. I. I I. 38800-mqt_100-2 Sheet No. 88 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 88 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 88 Side B 02/22/2017 09:25:38 , , , M K ATA C Y OOKS EGAL B UPREME :D [100:461 A. S (1964). U.S. S EVIEW OF EFFREY R , in Annual Meeting OMPENDIUM RANDEIS ,J to fill the vacan- to fill the C Why Brandeis Matters 1 ORK ISTORY OF D. B Y Seven former pres- 2 PSTEIN OURT E EW :AH 465 (1946). C OUIS L , N EE 5 IFE L L S ’ ENATORS ASE OF UPREME The two committees Senate AN S 3 C S M HE II 141–44 (5th ed. 2008). HE AND , :T REE ,T USH B RIAL :AF T 373–76 (summarizing various efforts to rank Supreme 373–76 (summarizing various efforts to rank ALKER NTRODUCTION RESIDENTS There were few such opinions. His concur- There were few such opinions. ,P 6 RANDEIS G. W A Hero of American Justice ) 2/16/17) 11:38 AM I. I note 2, ,B USTICE ON 464, 465 (6th ed. 2015) (summarizing various efforts to rank justic- 464, 465 (6th ed. 2015) (summarizing various ,J ELETE ASHINGTON TO MARQUETTE LAW REVIEW MARQUETTE Rating the Justices: Lessons from Another Court D USTICES supra W ASON HOMAS , OT ,J ODD T M N T O ROM F note 1, at 489. (D AND , HOMAS BRAHAM BRAHAM (June 28, 2010), https://newrepublic.com/article/75902/why-brandeis-matters DOCX T EVELOPMENTS supra ,A -P. , D J. A PAETH Lee Epstein et al., ILLER ASON LPHEUS ENRY J. S PPOINTMENTS _M M A EPUBLIC See generally A.L. Yet long before Brandeis retired from Yet long before February 13, 1939, the Court on A 4 R . . See, e.g. . .See 4 5 3. 1 2. H 6 The centennial of Justice Louis D. Brandeis’s appointmentthe Supreme to D. Brandeis’s of Justice Louis The centennial Yet Brandeis’s judicial legacy defies conventional measures. legacy defies conventional Yet Brandeis’s judicial Unlike idwest Political Sci. Assoc. (Chicago, Illinois) (Apr. 18, 1992), idwest EW AROLD ECISIONS AND OURT OLDSTEIN idents of the American Bar Association including William Howard Taft pub- unfit for the Court. licly declared Brandeis Court justices which place Brandeis in the “great” category); Court justices which place Brandeis in the es virtually all of which place Brandeis in “great” category); Jeffrey Rosen, es virtually all of which place Brandeis in “great” N C he was regarded as one of its seminalhe was regarded as recognition that has endured justices, a for more three-quarters of a century since then. than 462 G [https://perma.cc/3LY9-NEGF] (calling Brandeis “the greatest constitutional philosopher of the [https://perma.cc/3LY9-NEGF] (calling Brandeis twentieth century”); Anthony Lewis, Chief Justices John Marshall,Chief Justices John and Earl Warren, Charles Evans Hughes, he did shape or an ability to forge consensus, not, through the force of his personality the course of the Supreme cobbling together majorities Court by on constitutional issues. Nor did he make his mark through the number ma- of canonical jority opinions he left behind. cy caused by the death of Justice Joseph Rucker LamarJustice Joseph Rucker by the death of cy caused immediate provoked to a contentious confirmationcontroversy and led battle. charged with considering the nominationcharged with considering single vote in each approved it by a Senate ultimatelyinstance before the confirmed 47–22 Brandeis, on June 1, 1916. H D rences and dissents, which the Court later used to moldrences and dissents, which the Court new and enduring doctrine, left a wider imprint. Yet, significant though some of these contribu- reflect the legacy of Justice Brandeis’s tions were, even they do not properly the Court movedtwenty-three years on the Court. Often towards the result he (Feb. 11, 2010), http://www.nybooks.com/articles/2010/02/11/a-hero-of-american-justice/ Court [https://perma.cc/RP9X-SHJF] (calling Brandeis “perhaps the most brilliant of all Supreme justices”). M http://epstein.wustl.edu/research/conferencepapers.1992MPSA.pdf [https://perma.cc/63ZV-PG2D] (reporting the top ten authors of significant majority opinions, which does not include Brandeis). Court provides an appropriate occasion to an appropriate Court provides Wood- his judicial legacy. consider row Wilson’s nomination 28, 1916, on January of Brandeis 38800-mqt_100-2 Sheet No. 88 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 88 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 89 Side A 02/22/2017 09:25:38 7 9 7, 463 OLITICS 8 P ISTORY H 47, 124 (Fe- EWISH .J RANDEIS ORALITY IN M B M . U. L.J. 4, 5 (1966); cf. , 68 A OUIS USTICE .L T .J R SSAYS ON M :E , 11 S in , HILOSOPHY P UBLIC ,P ) 2/16/17) 11:38 AM ANDEL ELETE D J. S OT Section III.B. N O An Appreciation of Justice Brandeis Justice Brandeis: A Law Clerk’s Remembrance BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D infra ICHAEL M DOCX Sections III.C, III.D. Mr. Justice Brandeis and the Constitution -P. 10 discussion ILLER See infra _M . . See 8. Freund, Paul A. 7. Paul A. Freund, 9 10 This essay continues in Section II by placing Brandeis’s discretionary This essay continues in Section II Whenillumi- and dissenting opinions to Justice Brandeis used concurring Rather, Justice Brandeis’s judicial legacy was, as Paul A. Freund put it, as Freund as Paul A. judicial legacy was, Brandeis’s Rather, Justice Yet the power of Brandeis’s articulated moral only teachings constitutes M K OLDSTEIN C Y yet also important, Brandeis’s work demonstratedyet also important, how a conscientious judge fashion as they arise in cases before the can apply values in a principled his moral to the Court, Court. A century after his appointment insights continue to informof constitutional law, discussion and his performance provides a model for judicial behavior. Felix Frankfurter, nate moral provided the opportunity for issues, these discretionary writings him in an instructive way. questions and speak to recurring moral to identify 7 (1978); see also lix Frankfurter ed., 1932) (“In truth, Mr. Justice Brandeis is a moral teacher . . . .”). lix Frankfurter ed., 1932) (“In truth, Mr. Justice Brandeis is a moral 250 (2005) James Madison, (listing Brandeis along with Thomas Jefferson, Alexander Hamilton, The enduring quality of these expositions is demonstrated,The enduring quality of these expositions in part, by the frequency with which modern continue to cite them others jurists and for the light they shed on contemporary problems or the support they lend to their discussions. 2016] embracing without suggested some and approach, his have those victories of proved fleeting. “the most moral powerful court.” sat on our highest ever to have teacher That assessment Brandeis’s impact to describe continues after half a century judgment.Freund wrote that opinions to express Brandeis used his judicial fundamentaland memorable values in a profound constitutional way. As essentially a moral- “while Brandeis was without doubt Freund put it in 1978, . He was,. a moralist-cum- in short, ist, he was. a moralist. with a difference genius it was to perceive morallawyer, whose special issues in what others saw institutional arrange- trends, and to devise as vast impersonal, inevitable ments moral designed to salvage values in a modern technological age.” G part of his judicial legacy. Less tangible than those gems of his judicial prose, of his judicial Less tangible than those gems part of his judicial legacy. III discusses the impact judicial service. Section opinions in the context of his in shaping subsequent doctrine and in of Brandeis’s dissents and concurrences discussion. for judicial and extra-judicial articulating foundational concepts behavior. Section V provides con- Section IV addresses Brandeis’s judicial John C. Calhoun, Abraham Lincoln, Frederick Douglass, Jane Addams, and Oliver Wendell Holmes John C. Calhoun, Abraham Lincoln, thought”). as having produced “most notable expressions of American political 38800-mqt_100-2 Sheet No. 89 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 89 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 89 Side B 02/22/2017 09:25:38 M K AW In L C Y 16 The Col- [100:461

His opin- 14 ORK CHOOL OF TRUCTURE OF A S S W in eroding substantive HE :T RANDEIS note 5, at 632 (reporting that UDICIAL OURT J C O’Gorman D. B S ’ supra EAL 11 OUIS O’Gorman & Young, Inc. v. D note 1, at 627–28 (reporting that Brandeis , L EW N RANDEIS he spoke for a 6–3 majority he spoke for a 6–3 in up- B 12 supra , 285 U.S. 262 (1932) (using Fourteenth Amendment ASON M USTICE J he wrote for a 5–4 majority he wrote for a 5–4 a pre- in applying ) 2/16/17) 11:38 AM 13 , ETHINKING THE But see ,R ELETE MARQUETTE LAW REVIEW MARQUETTE 76–105 (1998) (describing role of D Section III.A. OT N O infra USHMAN (D VERVIEW OF VERVIEW did not end the Court’s aggressive use of substantive due did not end the Court’s aggressive Yet the opinion helped erode the underpinnings of the lib- C O 15 EVOLUTION DOCX N R , New State Ice v. Liebmann, -P. ARRY discussion Jacob Rupert, Inc. v. Caffey, Jacob Rupert, Inc. B ILLER II. A See 251 U.S. 264 (1920). 282 U.S. 251 (1931). _M (last visited Nov. 15, 2016), http://louisville.edu/law/library/special-collections/the-louis- O’Gorman . See, e.g. .See . 3. 12. 15 16 1 14 11. We have calculated Brandeis’s number of opinions from information provided at the web- Many Brandeis’s opinions resolved important of For in- issues of law. The observer mayThe observer of monumental at the paucity be surprised majority ONSTITUTIONAL IBRARY OLDSTEIN Due Process Clause to strike down Oklahoma law regulating sale of ice without license). Brandeis wrote 455 opinions for the Court, 10 concurrences, and 65 dissents for a total of 530 opin- Brandeis wrote 455 opinions for the Court, 10 ions). stance, in d.-brandeis-collection/the-collected-supreme-court-opinions-of-louis-d.-brandeis d.-brandeis-collection/the-collected-supreme-court-opinions-of-louis-d.-brandeis [https://perma.cc/5YU9-SE5U]. wrote 454 majority opinions and 528 opinions); Epstein et al., wrote 454 majority opinions and 528 opinions); C L 464 clusions. G opinions Justice Brandeis wrote for the Court during his twenty-three years of during his twenty-three for the Court Justice Brandeis wrote opinions of moreservice. The absence tendency by such opinions did not reflect a in the Court’s resolu- he usually joined On the contrary, Brandeis to dissent. tions. The overwhelming number of his published judicial opinions—some 86%—were457 of his 531 or majority opinions. sumptionconstitutionality to uphold a New of insurance regulation Jersey Clause of the Fourteenth Amendment.against attack under the Due Process As will be suggested below, Court’s use Brandeis had frequently criticized the and Fourteenth Amendmentsof the Due Process Clauses of the Fifth to strike tenure on the Court, but it was only down regulatory measures early in his President Herbert Hoover’s appointments Charles Evans Hughes and Owen of created the possibility that Brandeis could Roberts to the Court in 1930 that clauses in a majorityexpress his view on the due process opinion. ion in measures,process to strike down regulatory a practice that continued for a few more years. holding the power of Congress to prohibit, as a war measure, of Congress to prohibit, as a war holding the power the use of cer- manufacturingtain products in liquor. In Hartford Co. Fire Insurance site of the Louis D. Brandeis Collection at the Louis D. Brandeis School of Law Library. site of the Louis D. Brandeis Collection at the Brandeis lected Supreme Court Opinions of Louis D. erty of contract doctrine that the Court had used during the first third of the erty of contract doctrine that the Court and state economictwentieth century to strike down federal regulation. 38800-mqt_100-2 Sheet No. 89 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 89 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 90 Side A 02/22/2017 09:25:38 , 21 , 465 Senn, Swift ). for First URCELL MERICAN AND THE he wrote A , Erie A. P 19 , OWER P ASES IN DWARD C E 114 (2000) (defending Erie v. Tompkins Brandeis wrote for wrote Brandeis RIE and criticizing Brandeis’s E 18 , UDICIAL J & But see Senn, 301 U.S. at 478, Erie Erie Railroad Co. v. Tompkins, MERICA A WIFT THE , S Swift). RIE HE E : :T ENTURY -C 23 A General Defense of ISSONANCE left its own problems but, at to be solved 25 ONSTITUTION WENTIETH T C &D Erie ) 2/16/17) 11:38 AM 24 ELETE ARMONY D OURTS IN Louisville Bank v. Radford Bank Louisville and C 17 OT ROGRESSIVE ,H N P ); Ernest A. Young, O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: 17 (2013) (providing general defense of Brandeis’s arguments in (D Y REYER Senn v. Tile Layers Protective Union, Local No. 5 Union, Local No. Layers Protective Senn v. Tile at 73–75. and held that the invocation of the federal court’s diversity invocation of the federal court’s and held that the ’ F EDERAL 22 F DOCX OL , 20 id. ,326 (1941) (citing 321, v. Swing, 312 U.S. A.F.L. , and Brandeis regarding picketing as protected speech). and Brandeis regarding picketing as protected -P. ONY 143–64 (1981) (discussing difficulties occasioned by .&P T ILLER ee 41 U.S. 1 (1842). 292 U.S. 571 (1934). 295 U.S. 555, 601–02 (1935). 301 U.S. 468, 482–83 (1937). See, e.g. See, e.g. 304 U.S. 64 (1938). 304 U.S. at 78. CON _M . . . .S RANDEIS AND THE 8. 9. 2. 17. 1 1 20 21. 2 23 24 25 Yet only one of Brandeis’s majorityYet only one of Brandeis’s opinions, that in Erie was, that restored some to be sure, a singular decision rationality and Brandeis’s dearth of path-blazing majorityBrandeis’s dearth of path-blazing him opinions sets apart from M K J.L., E ., B OLDSTEIN EDERALISM OLITICS OF THE C Y R Swift v. Tyson for a 5–4 majorityfor a 5–4 a Wisconsin in upholding peaceful statute that allowed Four- it violated the an attack that labor disputes against picketing to publicize teenth Amendment.subse- provided part of the basis for opinion Brandeis’s Court had imposed eroding the restrictions the Taft quent Court decisions on union activity. consistency to law to forum-shop,the incentive by eliminating which other consequential justices. It was not simplyother consequential justices. It was the great chief justices like Marshall, many and Warren Hughes, enduring majority who wrote opinions. Other associate justices, such as Hugo Black, William J. Brennan, Jr., Lewis a unanimous private legislation for taking down New Deal Court in striking just compensationfor public use without property of the Fifth in violation Amendment. In claim that the Court had been acting unconstitutionally since F P due process). was truly historic. That decision overruled the ninety-six-year-old precedent, That decision overruled the ninety-six-year-old was truly historic. 2016] States v. United Lynch G Brandeis’s opinion in Erie Amendment protection of picketing); Thornhill v. Alabama, 310 U.S. 88, 102 (1940) (citing Amendment protection of picketing); Thornhill 301 U.S. at 478, least the applicable law would not vary depending on whether a federal or least the applicable law would not state tribunal had decided the case. subject matter the federal court to fashion a not authorize jurisdiction did common in a diversity case law.” Instead, a federal court “federal general which the high- or decisional, the law, whether statutory was bound to follow est state court in that state would apply. J had inadvertently created. 10 38800-mqt_100-2 Sheet No. 90 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 90 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 90 Side B 02/22/2017 09:25:38 M K est The C Y

[100:461 Brandeis 1985 Sup. Ct. 37 And even Harlan Fiske Harlan Fiske 32 . 27 and Owen Rob- and Owen 30 who, as Chief Justice, who, as Chief Justice, 34 S. 602 (1935); Carter v. Carter Coal Co., 298 S. 602 (1935); Carter v. Carter Coal Co., 298 Gold Clause Cases, 294 U.S. 240 (1935); Home Gold Clause Cases, 294 U.S. 240 (1935); Home note 6, at 18. who often was the swing vote. swing vote. who often was the 35 supra The Brandeis-Frankfurter Conversations, , 1927); Buck v. Bell, 274 U.S. 200 (1927) and even George Sutherland and even at 1387, 1388 (showing that Brandeis changed more than 50% ) 2/16/17) 11:38 AM Indeed, some Indeed, of those with whomBrandeis 29 26 id. United States, 272 U.S. 52 (1926). ELETE . 1267, 1314, 1386 (2001) (showing that Brandeis joined about 93% MARQUETTE LAW REVIEW MARQUETTE D EV OT N O who was more senior; Hughes, .L.R (D 33 INN Steward Mach. Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. Steward Mach. Co. v. Davis, 301 U.S. 548 (1937); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Powell v. Alabama, 287 U.S. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); DOCX M (Brandeis, arguing against dissents in non-constitutional cases); Robert Post, , Schenck v. United States, 249 U.S. 47 (1919); Nixon v. Herndon, 273 U.S. 536 , Schenck v. United States, 249 U.S. 47 (1919); , United States v. Butler, 297 U.S. 1 (1936); Grovey v. Townsend, 295 U.S. 45 , United States v. Butler, 297 U.S. 1 (1936); , New State Ice Co. v. Liebmann, 285 U.S. 262 (1932); Liggett Co. v. Lee, 288 , New State Ice Co. v. Liebmann, 285 U.S. , Nat’l Labor Rel. Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); W , Nat’l Labor Rel. Bd. v. Jones & Laughlin Steel , , , Schenck v. United States, 249 U.S. 47 (1919); Missouri v. Holland, 252 U.S. 416 , Schenck v. United States, 249 U.S. 47 (1919); , Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939); United States v. Caro- , Graves v. New York ex rel. O’Keefe, 306 U.S. , Herndon v. Lowry, 301 U.S. 242 (1937); Nebbia v. New York, 291 U.S. 502. -P. 85 ILLER ee, e.g. Benjamin Cardozo, See, e.g. See generally Melvin I. Urofsky, See, e.g. See, e.g. _M 28 He rarely wrote dissenting (or even concurring) opinions. He rarely wrote dissenting (or even wrote more significant matters for the Court on often did Brandeis. than . See, e.g. . . . See, e.g. . See, e.g. . See, e.g. . See, e.g. 36 31 35 36. 34 32 33. S 30 31 29 27 26. Epstein, et al., Rating the Justices 28. Circumstance more than anything else limitednumber the of Brandeis’s Although Brandeis is often portrayed as a great dissenter, he had a general as Although Brandeis is often portrayed OLDSTEIN Rev. 299, 314–15 Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking the Taft Court, Coast Hotel v. Parrish, 300 U.S. 397 (1937); The Coast Hotel v. Parrish, 300 U.S. 397 (1937); Bldg. and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934); Near v. Minnesota, 283 U.S. 697 (1931); Bldg. and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934); Near v. Minnesota, 283 U.S. 697 Stromberg v. California, 283 U.S. 359 (1931). (1927). (1935); Nebbia v. New York, 291 U.S. 502 (1934). (1935); Nebbia v. New York, 291 U.S. 502 (1934). U.S. 517 (1933); Myers Adm’x v. 45 (1932); Humphrey’s Ex’r v. United States, 295 U. 45 (1932); Humphrey’s Ex’r v. United States, U.S. 238 (1936); United States v. Curtiss-Wright 299 U.S. 304 (1936). Exp. Corp., 619 (1937); Palko v. Connecticut, 302 U.S. 319 (1937); Nixon v. Condon, 286 U.S. 73 (1932). 619 (1937); Palko v. Connecticut, 302 U.S. 319 Stone, (1920); Nixon v. Herndon, 273 U.S. 536 ( State Highway Dep’t v. Barnwell Bros., 303 U.S. 177 lene Prods. Co., 304 U.S. 144 (1938); S.C. (1933). (1938); United States v. Louisiana, 290 U.S. 70 brought symbolic importance and who possessed opin- he wrote to opinions or Roberts, ion-assigning authority; of the opinions of the Taft Court); when Brandeis found himself in the majority on such matters, institutional that others generally wrote the mostreasons dictated significant decisions, such as Holmes, erts, 466 F. Powell, Potter Stewart, Jr., Byron and wrote White, more important majori- than Brandeis. ty opinions G historic majority decided fewer con- The Court on which he served opinions. recent times. has been true in more stitutional cases than The Court’s conservative composition for most that he would often be in dictated of his tenure the minority cases. Court’s controversial constitutional in the served for extended periods, such as Oliver Wendell such as Oliver extended periods, served for Holmes, aversion to dissenting, especially in cases that did not involve the Constitu- aversion to dissenting, especially in tion. 38800-mqt_100-2 Sheet No. 90 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 90 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 91 Side A 02/22/2017 09:25:38 467 43 note 11. supra , 369–70 (1984); Urofsky, ashington, D.C. (Oct. 26, 1953) EOPLE P note 1, at 628 (stating that Brandeis’s “dis- (identifying presumptive norm on Taft Court (identifying presumptive norm on Taft Court 42 supra USTICE FOR THE , :J He wrote seventeen dissents from He wrote seventeen opin- www.roberthjackson.org/wp-content/uploads/migrated- 41 ASON note 36, at 309, 328 (Brandeis describing when he with- note 36, at 309, 328 (Brandeis describing when M RANDEIS He averaged fewer than three dissenting opin- fewer than He averaged note 36, at 1274 ) 2/16/17) 11:38 AM 39 Only 12% less were dissents and of his opinions D. B see also ELETE 38 supra D OUIS OT N ,L Brandeis also rarely wrote concurring opinions. His ten concurring opin- Brandeis also rarely wrote concurring opinions. O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D TRUM In fact, most In fact, came of his dissents first two-thirds during the S note 11 and accompanying text. DOCX 40 see also Post, -P. ILLER obert H. Jackson, Assoc. Justice of the Supreme Ct. of the U.S., Tribute to Louis D. HILIPPA See supra text accompanying note 11 and note 11. See supra See generally id. See id. _M at 1284 (citing Canon of Judicial Ethics in 1920s calling for judges on courts of last resort to at 1284 (citing Canon of Judicial Ethics in 1920s . . . See generally of Louis D. Brandeis The Collected Supreme Court Opinions id. 43. R 42 39. 40 41 37. 38. P Yet this small judicial workload has had a dispro- portion of Brandeis’s Once Brandeis joined the Court, he limitedOnce Brandeis joined published writings about his M K OLDSTEIN C Y Brandeis, The Man, at the 39th Annual Convention of Hadassah in W ions came at an average of less than one every other year and in fact were bunched in six Court terms ions came at an average of less than one every other with three each coming in the 1926 and 1935 terms. “use effort and self-restraint” to promote consensus). “use effort and self-restraint” to promote consensus). for justices to join Court opinions notwithstanding disagreement to foster Court’s influence and pres- disagreement for justices to join Court opinions notwithstanding tige); Brandeis-Frankfurter Conversations, supra holds a dissent); portionate impact as Justice Robert H. Jackson on his judicial reputation. For, for the frequency of his . not . . was “distinguished later observed, Brandeis strength—notdissents, but for their for their number, but for their quality.” (transcript available at http:// files/thecenter/files/bibliography/1950s/tribute-to-louis-d.-brandeis,-the-man.pdf [https://perma.cc/QP65-XNPC]); of his conference vote dissents during the Taft Court to join Court opinion). of his conference vote dissents during the Taft 2016] was opinion the Court’s views if his of expression a separate withheld often modified and sometimes at least in part, reflect his concerns, to simply be a to citizen. good institutional than 2% were concurrences. G of his service, when Edward White and William Howard were Taft chief jus- Courts. tices of rather conservative termsions during his five on the Whiteforty-two Court and during dissents his nine terms serving for eight terms the Taft Court, and only five while on Charles Evans Hughes. with Chief Justice law to his judicial opinions. He did not write law review articles or give academic speeches or media interviews. Moreover, con- in writing dissents and currences, he wasinstitutional responsibility of speak- not constrained by the ing for a majority the consequent obligation to conform and his ideas to the limits discretionary opinions, he was free to share the of consensus. In these of his mindinsights that were the unique product and experience. As Walton unconfused by the need own utterance, H. Hamilton his put it, “The dissent is it is not the law, but the law as he would of voicing the opinions of others; ions per term.ions per senting opinions are of quality, not quantity”). 38800-mqt_100-2 Sheet No. 91 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 91 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 91 Side B 02/22/2017 09:25:38 , M K Ad- C Y New State Ice PINIONS O For instance, 49 45 169, 187 (Felix Frankfur- [100:461 [100:461 RANDEIS B ISCRETIONARY D The Court must defer to the su- S ’ USTICE 51 note 6, at 22. .J R he argued that the Court had no right he argued that the Court had no right M supra , 50 in , RANDEIS B ) 2/16/17) 11:38 AM USTICE ELETE MARQUETTE LAW REVIEW MARQUETTE J D The Jurist’s Art Rating the Justices OT He called instead for judicial deference to such legisla- deference for judicial He called instead A. Doctrine The Source of Future N O 46 (D during his first term the Court on the Court, he argued that Thus, in Brandeis’s second dissenting opinion, issued in second dissenting opinion, issued Thus, in Brandeis’s era. 48 DOCX 47 MPACT OF MPACT OF , Jay Burns Baking v. Bryan, 264 U.S. 504, 534 (1924) (Brandeis, J., dissenting); , Jay Burns Baking v. Bryan, 264 U.S. 504, , (Brandeis, J., dissenting); Liggett Co. v. Lee, 288 U.S. 517 (1933) This observation applied equally to Brandeis’s concurrences. concurrences. to Brandeis’s equally applied observation This I -P. 44 HE at 286–87 (Brandeis, J., dissenting). at 600. ILLER Lochner Id. Walton H. Hamilton, _M New State Ice Co. v. Liebmann .Id. .Id. . See, e.g. . See, e.g. . III. T 50. 285 U.S. 262. 51 48. 244 U.S. 590 (Brandeis, J., dissenting). 49. 46 47 44 45. Epstein in sixteen cases that were and her colleagues also report that Brandeis dissented Brandeis’s concurrences and dissents helped shape doctrine the Court later and dissents helped shape doctrine Brandeis’s concurrences In OLDSTEIN 285 U.S. at 284–87, 302–03 (Brandeis, J., dissenting); O’Gorman & Young, Inc. v. Hartford Fire Ins. Fire 285 U.S. at 284–87, 302–03 (Brandeis, J., dissenting); O’Gorman & Young, Inc. v. Hartford Adams v. Tan- Virginia, 253 U.S. 412 (1920); Co., 282 U.S. 251 (1931); F. S. Royster Guano Co. v. ner, 244 U.S. 590, 600 (1917) (Brandeis, J., dissenting). tive decisions. Brandeis produced his mostBrandeis moral and enduring powerful teachings in these opinions. discretionary adopted, in some cases even whilehe was still on the Court. that it could not be taken” without violating fundamental rights. to weigh the evidence or determine all statements whether of fact upon which but simplyOklahoma’s the far more were well-founded legislature acted modest the existence of its belief in task of determining the “reasonableness” remedy.of evils and the effectiveness of its dy adopted, and the experience elsewhere, not to determine not whether the reme-dy adopted, and the experience elsewhere, dy was wise, to establish the facts since such matters or even were within the inquiries is to ena- “The sole purpose of the province of the state legislature. view of the facts, actual or possible, the ble this Court to decide whether, in action of the State of Washington clearly arbitrary or so unreasonable was so 468 it be.” have G once he joined the Court, Brandeis inherited Holmes’sonce he joined the role as the most con- of the Fourteenth use aggressive criticizing the Court’s sistent judicial voice Amendment regulating economic matters to strike down state legislation during the must consider the “evil” the State of Washingtonmust sought to remedy, consider the “evil” the State of the reme- Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 (1921) (Brandeis, J., dissenting); New State U.S. Duplex Printing Press Co. v. Deering, 254 J., dissenting). Ice v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, ter ed., 1932). later overruled. Epstein et al., ams v. Tanner 38800-mqt_100-2 Sheet No. 91 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 91 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 92 Side A 02/22/2017 09:25:38 , 58 . 121, 128 in which, The fol- The 59 IEW 52 60 V S ’ UDGE 469 56 :AJ . ORK W Duplex Printing Press Co. v. Duplex Printing Press Quaker City Cab Co. v. Commonwealth of Pa. Olmstead v. United States Olmstead v. United EMOCRACY D UR see also O the Court held that Congress, in response to the Court held that Brandeis argued that a Florida statute was pre- argued that a Florida Brandeis ) 2/16/17) 11:38 AM 53 AKING West Coast Hotel v. Parrish ELETE ,M D OT and N O REYER 55 B BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D Bedford Cut Stone Co. v. Journeyman Stone Cutters’ Ass’n Co. v. Journeyman Stone Cutters’ Bedford Cut Stone Liggett v. Lee Liggett v. DOCX -P. TEPHEN S and at 543 (Brandeis, J., dissenting); ILLER 57 , his feelings, and of his intellect. They knew that only a part his feelings, and of his intellect. They of life are to be found of the pain, pleasure and satisfactions in material They sought to protect Americans things. in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let The protection guaranteed by the AmendmentsThe protection is much undertook broader in scope. The makers Constitution of our the pursuit of happiness. to secure conditions favorable to man’sThey recognized the significance of spiritual nature, of _M .Id. .Id. . See Ultimately, in the mid-1930s, greater began to display the Court 55. 291 U.S. 502 (1934). 56. 300 U.S. 379 (1937). 57. 254 U.S. 443, 479 (1920) (Brandeis, J., dissenting). 58. 274 U.S. 37, 56 (1927) (Brandeis, J., dissenting). 59. 312 U.S. 219, 229–31, 236 (1941). 60. 277 U.S. 438, 478 (1928). 53. 288 U.S. 517 (1933). 54 52 Brandeis had frequently dissented fromBrandeis had frequently the White opinions of and Taft 54 United States v. Hutcheson, United States v. Hutcheson, M K OLDSTEIN C Y deference to legislative decision-makingdeference in economic matters, like in cases New York Nebbia v. Brandeis’s classic dissent in Or take in the context of the Fourth Amendment,in the context of the con- he argued that the Constitution governmentferred as against the to to privacy or, as he put it, “the right a right be let alone.” In one of the most memorable in Supreme passages Court opinions, Brandeis wrote: embodied in the classification made by the legislature of a State shall seem to this Court a wise legislature embodied in the classification made by the Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 533–34 (1924) (Brandeis, J., dissenting) (argu- one.”); ing that Court’s role was not to weigh evidence but to determine whether legislative act “transcends the bounds of reason”). 277 U.S. 389, 411 (1928) (Brandeis, J., dissenting) (“The Court may think such views unsound. But, 277 U.S. 389, 411 (1928) (Brandeis, J., dissenting) imply that the policy be reasonable does not must obviously, the requirement that a classification In law to exempt union ac- had clarified federal anti-trust dissents by Brandeis, harmony the law into tivity, thereby bringing with his interpretation. 2016] facts. relevant know the to state legislature of the authority perior in lowing year sumptivelyfactual showing absent any constitutional was that it unreasonable. union activity, including in Courts constraining Deering G (2010) (discussing Brandeis’s belief in legislative superiority for fact-finding regarding societal prob- superiority for fact-finding (2010) (discussing Brandeis’s belief in legislative lems). 38800-mqt_100-2 Sheet No. 92 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 92 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 92 Side B 02/22/2017 09:25:38 M K dis- C Y . 193 He He 68 EV Con- article, [100:461 He ar- He 64 65 .L.R the Court ex- ARV H 67 , 4 Goldman v. Unit- v. Goldman Olmstead Olmstead his In as a text to which “lit- 62 Harvard Law Review Harvard Law Review Olmstead dissent, not Taft’s majority opin- 61 The Right to Privacy, Katz v. United States Olmstead Olmstead ) 2/16/17) 11:38 AM . During the intervening years, other justices had . During the intervening years, other ELETE MARQUETTE LAW REVIEW MARQUETTE D at 464. (“The Amendment does not forbid what was done here. There OT N O (D Olmstead , 277 U.S. , 277 DOCX -P. at 473 (Brandeis, J., dissenting). at 472–74. at 478. at 478 (Brandeis, J., dissenting). ILLER , Justice Murphy cited Warren and Brandeis’s article of 1890 and re- Brandeis, however, reasoned that the Fourth and Fifth Amendments reasoned that the Fourth and Fifth Brandeis, however, oldman v. United States, 316 U.S. 129, 137 (1942) (Murphy, J., dissenting). 66 alone—the most comprehensive mostand the right rights, of civilized men.valued by right, every unjusti- To protect that by the Governmentfiable intrusion of the upon the privacy whateverindividual, means the employed, must deemed be a of the Fourth Amendment.violation d. d. 389 U.S. 347, 353 (1967). 63 _M .Id. .I .I .Olmstead .Id. 7. 8. G 64 65 66 6 6 63 61 62. Samuel D. Warren and Louis D. Brandeis, In the end, it was Brandeis’s Brandeis and his law partner, Samuel D. Warren, Samuel and his law partner, Brandeis D. first developed that had OLDSTEIN ion, that endured, including his classic encomiumion, that endured, including his classic of the constitutional concept of privacy. Nearly forty years later, in sent, Brandeis argued that the Fourth Amendment’ssent, Brandeis argued against unrea- prohibition and seizures was not limitedsonable searches where the govern- to situations ment as and looked for, and confiscated, objects physically entered property, literal and formalisticthe Court, in a rather by Chief Justice Taft con- opinion cluded. were produced in an age when force and violence were the meansan age when force and violence were were produced in of compel- new instruments by 1928 technology offered ling evidence, but like wiretapping that allowed government spaces. surreptitiously to invade private stitutional interpretation, he said, must adapt to modern circumstance in order to vindicate the principle animating these texts in the Bill of Rights. concept nearly forty years earlier in their classic concept nearly forty a common but they were writing about “The Right to Privacy,” right law against unwanted right. publicity, not a constitutional (1890). was no searching. There was no seizure. The evidence was secured by the use of the sense of hear- was no searching. There was no seizure. The evidence was secured by the use of the sense ing and that only. There was no entry of the houses or offices of the defendants.”). ployed.” gued that the Fourth Amendment unjustifiable intrusion by “every enjoined the Governmentindividual, whatever the means upon the privacy of the em- 470 G followed Brandeis in recognizing “a right of personal privacy” in the Four- of personal “a right followed Brandeis in recognizing plicitly overruled Dissenting in 1942 in found Brandeis’s dissent persuasive. ed States ferred to Brandeis’s “memorable dissent” in “the value of the right to privacy.” tle can or need be added” regarding 38800-mqt_100-2 Sheet No. 92 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 92 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 93 Side A 02/22/2017 09:25:38 “I can- 72 Rediscovering Chief Jus- recognized 69 , at 158–63 (dis- adopted Brandeis’s Katz supra In 1947, dissent- In 1947, In 1952, Justice In 1952, Justice Katz 182, 197 n.20 (J. Roland 471 70 71 “the dissenting position [in was now convinced that was now convinced RIVACY Katz P Erwin Chemerinsky, in , majority. The adoption of these princi- 77 “a belated vindication” of Brandeis’s dis- Justice Stewart, who wrote the Justice Stewart, But see Goldman, 74 . Katz : “Our Government is the Potent, the Omnipresent : “Our Government is the Potent, the Omnipresent Olmstead Katz L.J. 643, 646 (2007) (claiming and here specifically stated that “the Fourth and here specifically , Frankfurter, though not yet the full Court, yet the full Court, though not , Frankfurter, Olmstead 75 ) 2/16/17) 11:38 AM followed the path it suggested. , Justice Frankfurter observed that since it was decided, “instead , Justice Frankfurter observed that since it was RANDEIS Irvine v. California, 347 U.S. 128, 146 (1954) (Frankfurter, J., dis- U.S. Irvine v. California, 347 and Brandeis dissent). ELETE D Privacy: One Concept or Many 73 OT Katz Katz 45 B On Lee Katz Brandeis in N . 149, 161 (2009) (calling O see also EV BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D its overdue burial in its overdue burial DOCX .L.R for reasons stated in its dissenting opinions. stated in its dissenting for reasons at 759; -P. ISS Id. , 389 U.S. at 350. Paul A. Freund, Griswold v. Connecticut, 381 U.S. 479, 530 (1965) (Stewart, J., dissenting) (“I can find U.S. Connecticut, 381 Griswold v. at 351. at 762–64. Justice Douglas referred to Brandeis’s dissent as the “historic statement” of at 762–64. Justice Douglas referred to Brandeis’s at 136. ILLER . Harris v. United States Harris v. See Katz On Lee v. United States, 343 U.S. 747, 762 (1952) (Douglas, J., dissenting). ] was adopted by the Court” if “the dissenting position” is read as meaning simply that the ] was adopted by the Court” if “the dissenting position” is read as meaning simply that the _M Yet Brandeis’s dissent had left its mark Yet Brandeis’s dissent had left its during the prior four decades ,” 79 M .Id. . .Id. .Id .Id. Olmstead But cf. 76 Olmstead 74. KatzStates, 389 U.S. 347 (1967). v. United 75. 76. 77 72 73 69 70 71.145, 159 (1947) (Frankfurter, J., dissenting) (associating U.S. Harris v. United States, 331 The Court did not explicitly rely on Brandeis’s classic dissent when explicitly rely on Brandeis’s classic The Court did not it M K OLDSTEIN C Y Brandeis’s Right to Privacy, senting) (describing Brandeis’s dissent as “prophetic” of situation presented).senting) (describing Brandeis’s dissent as “prophetic” Olmstead Fourth Amendment applied to warrantless electronic surveillance); Steiker, cussing differences between the right to be let alone. In inefficien- we have gone from inefficiency to crime, of going from strength to strength in combating foresaw this of Mr. Justice Brandeis unerringly insight cy, from corruption to corruption. The moral inevitability.” no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any no such general right of privacy in the Bill of Rights, case ever before decided by this Court.”). ples allowed the Fourth Amendmentto reach newer, potentially intrusive Douglas, who had been in the majorityDouglas, who had in Amendment to priva- a general constitutional ‘right cannot be translated into cy.’” the Fourth Amendment with the right to be let alone). the Fourth Amendment with the right to be let he had been wrong and that Brandeis was right fromhe had been wrong the beginning. Pennock & John W. Chapman eds., 1971) (stating tersely that in sent). majorityconstitutional right to earlier expressed hostility to a opinion, had context privacy in a different not improve proceeded to quote dissent],” he wrote, and then on [Brandeis’s four paragraphs from it. 2016] Amendmentteenth men” to free dear as any was “as which which “the and on freedomspiritual small depends in no of the individual measure.” G that the Fourth Amendment people, not places, and that its protec- protected intrusion. tion did not depend upon a physical approach); Carol S. Steiker, Teacher ing in would explicitly overruled the have and in some respects gave tice Stone and Justice Frankfurter also announced they were prepared to over- they were prepared also announced and Justice Frankfurter tice Stone turn 38800-mqt_100-2 Sheet No. 93 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 93 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 93 Side B 02/22/2017 09:25:38 M K C Y The [100:461 79 . had permeated 216, 216–17 (1960). Olmstead. ., , the Court used a , the Court And it protected it protected And EV 78 as well as from Brande- Olmstead Olmstead .U.L.R Rather, he drew at length 84 Olmstead W 83 , 55 N GriswoldConnecticut v. Wilson v. Schnettler, 365 U.S. 381 (1961) overruled , Brandeis’s formulationBrandeis’s had appeared , celebrating “the privacy and freedom of Katz Katz , the Court had dodged deciding the contracep- , the Court had dodged Justice Harlan, however, was not persuaded Justice Harlan, however, was not 82 ) 2/16/17) 11:38 AM , which he described as “[p]erhaps the most, which he described as “[p]erhaps com- The Right to be Let Alone dissent had also provided a concept that influenced a concept that influenced also provided dissent had ELETE MARQUETTE LAW REVIEW MARQUETTE D OT Griswold note 74, at 158. N the Court had associated the Fourth Amendment with a O For instance, Erwin Griswold, Dean of Harvard Law Griswold, Erwin For instance, 86 , 367 U.S. at 650–52, 655–56 (1961). (D 88 and Brandeis’s classic passage in Olmstead supra 87 Olmstead Olmstead Since Brandeis never wrote, in the U.S. Since Brandeis or law Reports re- Mapp DOCX , Mapp v. Ohio, 367 U.S. 643, 650–51, 654–56 (1961) (repeatedly referring to , Rules” to justify the Court’s practice of avoiding constitutional Rules” to justify the Court’s practice 80 -P. There, Justice Frankfurter’s plurality opinion invoked Brandeis’s There, Justice Frankfurter’s plurality 85 Steiker, Erwin N. Griswold, 81 at 550. at 552 (quoting Gilbert v. Minnesota, 254 U.S. 325, 335–36 (1920)). at 484. at 502–03. at 524 (Harlan, J., dissenting). ILLER oe v. Ullman, 367 U.S. 497, 503 (1961). ee d. d. d. d. d. See, e.g. 381 U.S. 479. _M .See .I .I .I .I .I . .S . See, e.g. 9. 1. P 78 7 80 82 8 83 84 85 86 88 87 Four years before Four years before Brandeis’s In the years leading up to Griswold OLDSTEIN Ashwander without attribution; tive issue. academic writing. is’s dissent in Gilbert v. Minnesota the home.” Court’s opinion, writtenCourt’s opinion, maintained by Justice Douglas, that although the not mentionConstitution does privacy, marital or otherwise, “penumbras” or “emanations” from to cre- clauses are sufficient a collection of constitutional ate the right. from Brandeis in prehensive statement liberty underlying these aspects of the of of the principle Constitution” dealing with the privacy of the home, the Court should avoid the constitutional question. the Court should avoid the constitutional right of privacy; privacy of the telephone upon which the user justifiably relied. which the user the telephone upon privacy of newly-minted to strike down constitutional right to privacy Connecticut law a of contraceptives in prohibiting the use 472 alarm. with had anticipated which Brandeis technologies, G views, about the application of a “right to be let alone” to sexual activity it is to sexual activity of a “right to be let alone” views, about the application formulation Yet quite clearly his have regarded it. unclear how he would that emergedhelped shape the doctrine from his argument in “ questions whenever possible. the shape of constitutional doctrine in other important doctrine in other of constitutional the shape ways beyond his antici- before 1965, two years pation. In Fourth Amendment as standing for “right of privacy”); (Douglas, J., dissenting) (“Under the Fourth Amendment, the judiciary has a special duty of protect- (Douglas, J., dissenting) (“Under the Fourth Amendment, the judiciary has a special duty cause.”). ing the right of the people to be let alone, except as warrants issue on a showing of probable 38800-mqt_100-2 Sheet No. 93 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 93 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 94 Side A 02/22/2017 09:25:38 90 473 Sup. Justice , 1962 Rules in 95 Concurring, 96 94 Ashwander The Court, he com- The Court, he in an article of 1962. in an U.S. 438, 478 (dissenting opin- U.S. 92 277 , In dissent, Justice Rehnquist 97 . recognized a Brandeisian back- recognized a Brandeisian Olmstead 91 Justice Goldberg in his concurrence Justice Goldberg dissent, was dissent, “implicit in many of the 93 ’s right to privacy in the right to be let ’s right to privacy in the right to Olmstead Princeton professor William Princeton in- Beaney 89 Griswold, Olmstead U.S. 479, 510 n.1 (Black, J., dissenting). ) 2/16/17) 11:38 AM Griswold ELETE D The Constitutional Right to Privacy in the Supreme Court The Constitutional Right to Privacy in the Supreme OT N dissent as a source of the right to privacy. O B. Most The Moral Powerful Teacher . 305 (1959). BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D EV , 410 U.S. at 172 (Rehnquist, J., dissenting). DOCX ade, 410 U.S. 113 (1973). L. R , some to Brandeis for guidance. justices again turned -P. Olmstead TAH at 216. at 494 (Goldberg, J., concurring). at 152. at 213 (Douglas, J., concurring) (“This right of privacy was called by Mr. Justice ILLER 98 d. d. d. 6 U 6 Roe v. Wade Id. _M .Id. .I .I .I 0. William M. Beaney, 2. Griswold v. Connecticut, 381 91. 98. 89 9 9 93 94. 95. Roe v. W 96 97 Justice Black, dissenting in Justice Black, dissenting Whenthe issue of abortion came to the Supreme in Court eight years later Yet does not depend on his ma- just as Brandeis’s judicial legacy certainly M K OLDSTEIN C Y Justice Douglas anchored alone, which Brandeis celebrated in Ct. Rev. 212, 218–28. which Chief Justice Warrenjoined, explicitly relied on and Justice Brennan quoting fromBrandeis’s dissent, it since it “comprehensively summarized the privacy.” the Constitution’s guarantees of principles underlying ground to Douglas’s opinion for the Court and, as it conflicted with his own opinion for the Court and, as it ground to Douglas’s constitutional formalism, not like what did he saw. plained, had converted the tort-based right that Warren the tort-based plained, had converted ar- and Brandeis had concept. ticulated into a constitutional Roe v. Wade ion).”) provisions of the Constitution and in the philosophic background out of which background the philosophic and in of the Constitution provisions wasthe Constitution formulated.” 2016] wroteSchool, most alone, “the to be let the right that familiar statement” of in Brandeis’s which appeared Brandeis’s formulation Dykstra discussed J. in Dean Daniel Utah Law School “The Right Most Men.” Valued by Civilized G Brandeis the right ‘to be let alone.’ Olmstead v. United States jority opinions, neither does it turn primarilyjority opinions, neither does it turn on the extent to which his dis- became law. Rather, his legacy rests on sents and concurring opinions later cluded a lengthy discussion of Brandeis in of Brandeis in lengthy discussion cluded a support. complained that the Court had abandoned its practice of not formulatingcomplained a rule that the Court had abandoned and cited Brandeis’s broader than the facts presented, Blackmun, who wrote the majorityopinion for seven justices in the case, cited Brandeis’s 38800-mqt_100-2 Sheet No. 94 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 94 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 94 Side B 02/22/2017 09:25:38 M K dur- C Y the 104 Olmstead Olmstead , Curious Con- 107, 112 (Alden suggests how was the other. This EFORMERS Ruthenberg v. Michigan Brandeis’s R Olmstead 102 101 [100:461 [100:461 MERICAN A in , Ronald K.L. Collins & David Skover Not surprisingly, Brandeis expressed these Not surprisingly, Perhaps more eloquently than any other Su- 99 Whitney v. California ) 2/16/17) 11:38 AM 105 Whitney v. California, 2005 Sup. Ct. Rev. 333, 334. Whitney. See ELETE The discussion above of The discussion MARQUETTE LAW REVIEW MARQUETTE D Section III.A. 100 OT Brandeis, Louis Dembitz N O supra (D Although Brandeis joined on procedural grounds Although Brandeis joined on procedural 103 DOCX -P. discussion at 359, 364 (majority opinion). at 379 (Brandeis, J., concurring). Whitney had not argued that the California law was ILLER Pennekamp v. Florida, 328 U.S. 331, 352 (1946) (Frankfurter, J., concurring). Pennekamp v. Florida, 328 U.S. 331, 352 (1946) Those who won our independence believed that the final Those who won our independence believed that the final end of the State was to make men to develop their facul- free ties; and that in its government the deliberative forces should _M .Id. .Id. . . See 102. U.S. 357, 372 (1927) (Brandeis, J., concurring). 274 103 104 100 101 105. Brandeis’s opinion grew largely out of a dissent he wrote in 99. Paul A. Freund, Although categorizing Brandeis’s thoughts risks oversimplification, his Brandeis’s thoughts Although categorizing His concurring opinion in OLDSTEIN preme articulated an enduring ra- Court opinion, Brandeis’s concurrence political speech. Hetionale for a robust doctrine of free wrote: 474 waythe instructive ideals. constitutional foundational which in he expressed in those formulationsThe vocabulary generations. As provided future have Justice: “The mission wrote about the Paul Freund indomita- that he pursued that became historic ideals the prophetic no less than to rediscover bly was American of into the structure to translate these to devise ways values, and our modern industrial society.” G Court’s unanimous opinion affirming Whitney’s conviction, his ringing concurrence reads like a dissent. currence: Justice Brandeis’s Vote in Whitman ed., 1985). of serious evil and had not asked judge or jury to unconstitutional absent clear and unusual danger evidence from which a reasonable factfinder could consider those questions. Moreover, there was find that the IWW was part of a conspiracy to commit serious crimes. of the ing the Court’s 1926 term regarding the appeal of Charles E. Ruthenberg, executive secretary law. The Communist Party of Michigan, for allegedly violating Michigan’s Criminal Syndicalism conviction case was mooted by Ruthenberg’s death in March 1927 before the Court could affirm his much and accordingly Brandeis had no occasion to issue a dissent in that case. Instead, he converted of his work in that case for use in ideas might five groups. First, he was be usefully placed in an eloquent pro- not overstate the case rights. Justice Frankfurter did ponent of individual constitutional struc- of the great when as “co-architect he referred to Brandeis ture of civil liberties.” case arose from Whitneyof Anna the conviction California’s for violating Industrial Workers the syndicalism her participation in statute through of the (IWW). World ideals most dissents. in his concurring opinions and powerfully dissent was one of the two of that structure. great pillars Brandeis’s “right to be let alone” has influenced the Court’s formulationto be let alone” has influenced the Brandeis’s “right of concept (or concepts) of privacy. the constitutional 38800-mqt_100-2 Sheet No. 94 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 94 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 95 Side A 02/22/2017 09:25:38 A. HARLES Under 107 475 98–99 (1969). ISTORY H 106 SES OF U ) 2/16/17) 11:38 AM ELETE D OT N O OURT AND THE BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: C (D 108 DOCX , 274 U.S. at 376. -P. UPREME S at 375–76. The phrase “they believed liberty to be the secret of happiness, and courage at 375–76. The phrase “they believed liberty at 377 (“Those who won our independence by revolution were not cowards. They did ILLER HE prevail over the arbitrary. They valued liberty both as an end as an liberty both valued They arbitrary. over the prevail and as a means. secret of hap- liberty to be the They believed They believed secret of liberty. courage to be the piness and that freedomyou will to think as think to speak as you and are means spread of politi- to the discovery and indispensable speech and assembly that, without free cal truth; discussion would be futile; that withaffords ordinarily them, discussion against the disseminationadequate protection doc- of noxious menacetrine; that the greatest to freedom people; is an inert should is a political duty; and that this that public discussion be a fundamental principle of the American government. the risks to whichThey recognized all human institutions are merely knew that order cannot be secured subject. But they through fear of punishment that it is hazard- for its infraction; thought, hope and imagination;ous to discourage that fear that hate men- that repression breeds hate; breeds repression; aces stable government; lies in the op- that the path of safety grievances and proposed portunity to discuss freely supposed remedies;remedy and that the fitting for evil counsels is good reason as applied through ones. Believing in the power of coerced by law—thepublic discussion, they eschewed silence argumentform. of force in its worst Recognizing the occa- sional tyrannies of governing majorities, they amended the assemblyConstitution so that free speech and should be guaranteed. of Fear of serious injury cannot alone justify suppression free speech and assembly. Men feared witches and burnt women.speech to free men It is the function of from the bondage of irrational fears. _M .Id. .Id. . Whitney ,T 106 108 107 Brandeis proceeded to define the prevailing “clear and present danger” prevailing “clear Brandeis proceeded to define the M K ILLER OLDSTEIN C Y test by giving each adjective and noun a constrained reading. test by giving each adjective and not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant of men, with confidence in the power of free and fearless reasoning applied through the processes the in- popular government, no danger flowing from speech can be deemed clear and present, unless 2016] G M Brandeis’s formulation,the evil anticipated must be serious, imminent and of speech. Anlikely to result absent suppression emergency must be so se- make discussion and vere and imminent action a neces- as to preclude further sary last resort. to be the secret of liberty” came from Pericles’ “Funeral Oration.” Presumably Brandeis expected to be the secret of liberty” came from Pericles’ “Funeral Oration.” Presumably Brandeis readers will. For a fuller discussion, see C his readers to recognize it, but few of today’s 38800-mqt_100-2 Sheet No. 95 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 95 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 95 Side B 02/22/2017 09:25:38 M K C Y Whit- OURT AT [100:461 C ho later called UPREME 31 (2011); see also In his dissent, S Yet Brandeis’s 114 112 HE opinion “one of the “one opinion EMOIR :T M opinions his impact on note 36, at 638. RANCH OURT B C supra Whitney , IFE , he cautioned against prosecuting , he cautioned against prosecuting UPREME :AL Whitney opinion was the culmination and Whitney ANGEROUS D :AS EAST RANDEIS ”); New York Times Co. v. Sullivan, 376 U.S. 254, 270 L D. B HE Olmstead Olmstead ) 2/16/17) 11:38 AM . In fact, his IVE CHIEFS Brandeis’s biographer, Melvin Brandeis’s Urofsky, suggest- ,T Whitney OUIS ELETE ,F 109 MARQUETTE LAW REVIEW MARQUETTE D ,L ICKEL OT note 36, at 618. N concurrence “the mostconcurrence “the opinion of the Taft significant” O Whitney TEVENS M. B (D S ROFSKY Schaefer v. United States 99 (1962). supra Pierce v. United States, 252 U.S. 239, 253 (1920) (Brandeis, J., dissenting). , and “[p]erhaps more than any other of his opinions . . . has shaped . . . more “[p]erhaps other of his opinions than any I. U DOCX AUL hitney P -P. W OLITICS ELVIN ROFSKY LEXANDER P see also ILLER Later in 1920, Brandeis dissented from Later in 1920, Brandeis dissented a case affirming a convic- OHN it punishable to teach in any place a single person that a citi- it punishable to teach in any place a war, no matterzen should not aid in carrying on what the relation of the parties may be. Thus the statute invades the privacy and freedom of the home. and mother Father may not _M 113 111 Olmstead Olmstead AR OF He might have added Justice Stevens to his list, w He might have added Justice Stevens 112. U 109. A 113. Schaefer (1920) (Brandeis, J., concurring and v. United States, 251 U.S. 466, 493, 495 114. Gilbert 334 (1920) (Brandeis, J., dissenting). v. Minnesota, 254 U.S. 325, 111. J 110. M Alexander Bickel later called Brandeis’s Brandeis’s called later Bickel Alexander Urofsky was surely right when he wrote that if Brandeis “had never writ- right when he wrote that if Brandeis Urofsky was surely B ). 110 OLDSTEIN Court. of nearly a decade’s thought and writingof nearly a decade’s free expression. In his regarding 1920 opinion in someone “for a disloyal heart” and worried that even in peacetime “an intoler- someoneand worried that even in “for a disloyal heart” ant majority, or by fear, may swayed by passion it be prone in the future, as has often been in the past, to stamp as disloyal opinions with which it disa- grees.” ney Brandeis’s he argued that the law punished not acts but beliefs, particularly one section but beliefs, particularly one section acts he argued that the law punished not that he wrote made Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (Stevens, J., for six-justice majority, referring to “Jus- tice Brandeis’s classic opinion in (1964) (Brennan, J., for six-justice majority, referring to Brandeis’s “classic formulation” in (1964) (Brennan, J., for six-justice majority, referring to Brandeis’s “classic formulation” often lonely commitment to individual rights was evident in cases be- also yond mostthe extensive passages in persuasive, as well as intellectually eloquent, of free speech.” literature cidence of the evil apprehended is so imminent that it may befall before there is opportunity for full cidence of the evil apprehended is so imminent discussion the falsehood and fallacies, to avert the evil discussion. If there be time to expose through be applied is more speech, not enforced silence. Only by the processes of education, the remedy to an emergency can justify repression.”). 476 G ed that Whitney American First Amendmentinfluence on the law,” constitutional its citing ju- John Marshall Black, Douglas, Brennan, and risprudence of Justices Harlan II. THE dissenting); tion for teaching pacifism in violation of a Minnesota law. ten anything other than the ten anything other American law constitutional would have been great.” still 38800-mqt_100-2 Sheet No. 95 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 95 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 96 Side A 02/22/2017 09:25:38 477 RANDEIS Quaker D. B OUIS L APERS OF that struck down a state P 120 and he did not abandon those 119 In a case of 1922 testing whether a In a ISCELLANEOUS 118 117 . :M IGNESS B ) 2/16/17) 11:38 AM 116 ELETE D OT URSE OF N C O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D HE , T DOCX 115 -P. , he gave voice to some in of these concerns in dissenting at 335–36. ILLER Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 (1921) J., dissenting). (Brandeis, But still intelligent, informed, there are just-minded, and civi- aggrega- the rapidly growing lized persons who believe that constitutes an insidious tion of capital through corporations menace to the liberty of the citizen; that it tends to increase that, because of the guid- the subjection of labor to capital; followpromptings the belief, of religious or of of conscience of paci- daughter the doctrine or and teach son conviction, fism. If, under the Constitution, administrativeIf, under the Constitution, officers may, as a mere time incident of the peace administration of their departments, as with the power to issue such orders be vested and in of substance in our Bill of Rights this, there is little governmentalevery extension of functions lurks a new danger to civil liberty. _M . . See, e.g. .Id. 117 118.416, 422 (1922) (Brandeis, J., dissent- 393, U.S. Mahon, 260 Pennsylvania Coal Co. v. 119 115 116.407, 436 (1921) (Brandeis, J., U.S. v. Burleson, 255 Co. Pub. Soc. Democratic Milwaukee 120. 277 U.S. 389 (1928). A wassecond aspect of Brandeis’s thought im- his belief that citizenship Third, Brandeis worried about “bigness,” both economicThird, Brandeis worried about “bigness,” and governmen- M K Olmstead OLDSTEIN C Y posed upon the individual duties that could be more important than rights. duties that could be moreposed upon the individual important than rights. rises duty to the community,”“[A]bove all rights in he declared in his dissent Co. v. Deering Duplex Printing Press dissenting). ing). measure more taxing corporations individuals. He wrote: heavily than 2016] G state law could prevent coal mining that caused the subsidence of a house, a caused the subsidence state law could prevent coal mining that Court majority in an opinion by Justice Holmes held that it could not, while Brandeis in dissent spoke of the “paramount rights” of the public under the “the advantage of living and do- enjoyed state law because the regulated party ing business in a civilized community.” convictions when he joined the Court. One week before he issued his dissent convictions when he joined the Court. in Pennsylvania City Cab Co. v. Commonwealth of mailingny a preferred included he thought had a publication which rate to from In dissenting the postmasterdecision which allowed a general to de- materials,subversive wrote: Brandeis tal. Regarding the former, had written Brandeis about the “curse of bigness” citizen during his years as a public-spirited (Osmond K. Fraenkel ed., 1934). 38800-mqt_100-2 Sheet No. 96 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 96 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 96 Side B 02/22/2017 09:25:38 M K C Y [100:461 Louis K. Liggett Co. v. Louis K. Liggett 121 Justice Brandeis: A Law Clerk’s Re- ee also Freund, “became in his hands a vehicle for the expression of his pro- ) 2/16/17) 11:38 AM ELETE Liggett MARQUETTE LAW REVIEW MARQUETTE D OT 13 ( N O (D 123 DOCX -P. at 410–11 (Brandeis, J., dissenting). at 580 (Brandeis, J., dissenting); s ILLER corporate control the faculties of the unknowncorporate control the faculties of the many, only by reopening to them for leadership, can confi- the opportunities the existing miserydence in our future be restored and be overcome, by the many and that only through participation in the responsibilities and determinations of business can Amer- icans secure the moral and intellectual development which is essential to the maintenance of liberty. If the citizens of Flor- nothing in the Federal Consti- ida share that belief, I know of tution which precludes the State from endeavoring to give it effect and prevent domination commerce in intrastate by sub- jecting corporate chains to discriminatory license fees. To are still mastersthat extent, the citizens of each State of their destiny. There is a widespread belief that the existing unemploy-There is a widespread belief that mentin the of the gross inequality in large part, is the result, and incomedistribution of wealth corporations which giant the few have exerted have fostered; that, by the control which initiative and effort are through giant corporations, individual being paralyzed, creative power impaired, and human happi- of our past came not ness lessened; that the true prosperity from courage, the energy, and big business, but through the the resourcefulness of smallmen; that only by releasing from ance and control necessarily exercised by great corporations corporations by great exercised necessarily and control ance initiative is being individual engaged in business, upon those impaired power and creative will that the absorp- be lessened; life, may and their perpetual by corporations, tion of capital similarbring evils to those which attended mortmain; that the of business by absorption to the accelerating evils incident and that the benefits thereby secured, corporations outweigh should be retarded. the process of absorption _M .Id. .Id. furnished another opportunity for Brandeis to echo, and build upon, his opportunity for Brandeis to echo, furnished another 121 122. 288 U.S. 517 (1933). 123 Brandeis also warned against the inappropriate exercise of governmentalBrandeis also warned against the inappropriate Five years later, amidstFive years later, the Great Depression, 122 OLDSTEIN 478 G membrance, supra note 8, at foundest convictions about the vices of bigness. He poured into his opinions the fruits of a lifetime foundest convictions about the vices of bigness. He himself of experience and study, with a freedom made possible by the fact that he was writing for alone.”). Lee earlier expression while dissenting fromearlier expression decision striking down a the Court’s imposedFlorida statute that operating chain heavier taxes on corporations He wrote: stores than on others. 38800-mqt_100-2 Sheet No. 96 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 96 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 97 Side A 02/22/2017 09:25:38 479 Brandeis 125 . Brandeis ar- 130 124 for Brandeis’s succinct and ele- see id. Prison officials had conspired to 128 ) 2/16/17) 11:38 AM The evidence convinced Brandeis that officials had The evidence convinced Brandeis ELETE D 129 OT N O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D 127 DOCX -P. at 477. at 421–22. at 424. ILLER Yet he regarded that contention as irrelevant. irrelevant. Yet he regarded that contention as Still I cannot believe that action of a public official is neces- Still I cannot believe that action of sarily lawful, prohi- because it does not violate constitutional bitions and because the same might result have been attained by other and proper means. the foundation of our civil At to governmentliberty lies the principle which denies officials law and which subjects an exceptional position before the them to the same that are commands rules of conduct to the citizen. The doctrine of the separation of powers was adopted by the adopted by the of powers was of the separation The doctrine promote of 1787 not to Convention but to preclude efficiency, power.the exercise of arbitrary The purpose was, not to by meansavoid friction, but, of the inevitable friction inci- the governmental among powers of dent to the distribution three departments, to save the people from autocracy. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) Myers v. United States, 272 U.S. 52, 293 (1926) Burdeau v. McDowell, 256 U.S. 465, 476 (1921); _M .Id. .Id. .Id. . . 126 126 Id. 127. 128. Casey States, 276 U.S. 413, 421 (1928) (Brandeis, J., dissenting). v. United 129 130 124 125 Yet did not rely simply Brandeis on institutional arrangements to hold Seven years later, Brandeis expressed similar inclinations in dissenting M K OLDSTEIN C Y government he dissented fromhigh standard of behavior. In 1921, to a a proceed- the governmentCourt decision allowing use in criminal to retain for ings documents furnished. private parties had stolen and then that entrap a lawyer suspected of providing morphineentrap a lawyer suspected of providing had suc- to prisoners and ceeded in their scheme. from a majorityupholding the conviction of a law- opinion by Justice Holmes laws that prohibited the purchase of mor-yer for violating federal narcotics phine not in or from package. its original gant statement of the facts and question presented (“Plaintiff’s private papers were stolen. The thief, gant statement of the facts and question presented (“Plaintiff’s private papers were stolen. them to to further his own ends, delivered them to the law officer of the United States. He, knowing so?”). have been stolen, retains them for use against the plaintiff. Should the court permit him to do acknowledged as true the majority’sacknowledged as Con- that “no provision of the argument could have been subpoe- their surrender and that the papers stitution requires naed.” had violated the law. no prior basis to believe the defendant 2016] separa- involving in cases expression found consistent concern That power. tion of powers, federalism, the Brandeis appreciated rights. and constitutional powers separation of Constitution’s to restrain government. as a strategy As in a dissent in 1926: he wrote G 38800-mqt_100-2 Sheet No. 97 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 97 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 97 Side B 02/22/2017 09:25:38 M K C Y The The 134 131 There he cau- There 132 . [100:461 [100:461 Olmstead 133 ) 2/16/17) 11:38 AM ELETE MARQUETTE LAW REVIEW MARQUETTE D OT N O (D 135 DOCX -P. at 425. at 479. It may be noted that the last sentence in this passage is inscribed on the wall of at 483. . at 485. ILLER Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting). Decency, security and liberty alike demand that government shall be subjected to the same officials rules of conduct that are commands to the citizen. In a government of laws, existence of the government will imperilled be if it fails to Our Governmentobserve the law scrupulously. is the potent, the omnipresentFor good or for ill, it teaches the teacher. whole people by its example. Crime is contagious. If the Government becomes it breeds contempt a lawbreaker, for born to freedom invasion of their are naturally alert to repel liberty by evil-mindeddangers to liberty rulers. The greatest lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Experience should teach us to be mostExperience should on our guard to protect liberty when the Government’sMen purposes are beneficent. _M .Id. . .Id. .Id. .Id 131 132 133 134 135 Yet Brandeis’s concern went beyond his belief that the rule of law bound Yet Brandeis’s concern went beyond Brandeis argued that, independent of constitutional arguments independent of constitutional Brandeis argued that, relating to Brandeis wrote his mostBrandeis of government of the perils exposition enduring OLDSTEIN tioned that the danger of a violation of constitutional rights was greatest when of a violation of tioned that the danger government popular ends: pursued the Fourth and Fifth Amendments,the Fourth and Fifth conviction on Court should reverse the the The wire-tappingequitable grounds. when committed represented simply had government citizens. Brandeis added to the con- as private officials as well wrote that because the governmentcerns previously expressed when he was the “omnipresent additional reason to make teacher,” it had certain its behavior conformed He wrote: to a high standard. the government. the illegal acts of government officials, but “if this Court should permit the Government, by means of its officers’ crimes, of punish- to effect its purpose ing the defendants, there would seembe present all the elements to of a ratifi- cation” and “the Governmentwould become itself a lawbreaker.” the defense of unclean hands against Court should protect itself by invoking 480 the de- right any not to vindicate be vacated, should conviction that the gued the government. from To protect it “to protect but rather fendant possessed purity of its courts.” To preserve the of its officers. illegal conduct G misconduct months two in in his dissent later a corridor in the House wing of the U.S. Capitol. a corridor in the House wing of the U.S. Capitol. 38800-mqt_100-2 Sheet No. 97 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 97 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 98 Side A 02/22/2017 09:25:38 140 143 481 OUIS His His ,L 137 ROFSKY written near the The “injustice” , see U 138 139 Rather, courts should not 142 ) 2/16/17) 11:38 AM ELETE D Courts, he continued, “would be powerless to pre- Courts, he continued, “would be International News Service v. Associated Press note 36, at 551–52; Richard A. Epstein, International News Service v. OT N 141 O 136 BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D supra , 144 DOCX IFE -P. International News Service v. Associated Press International News :AL at 262. at 267. ILLER For discussions of law; man every it invites to becomelaw a unto himself; it in- that, in the administration To declare vites anarchy. of the criminal law,end justifies the means—to the declare that the Government may commit crimes the con- in order to secure a private criminal—wouldviction of retribution. bring terrible pernicious doctrineAgainst that resolutely this Court should set its face. _M .Id. . See,Ins. Co., 282 U.S. 251, 257-258 e.g., O’Gorman & Young, Inc. v. Hartford Fire .Id. .Id. .Id. .Id. .Id. . 136 137 138. 248 U.S. 215, 248 (1918) (Brandeis, J., dissenting). 139 140 141 142 143 144 Yet Brandeis knew that separated powers and checks and balances did not that separated powers and checks Yet Brandeis knew RANDEIS M K OLDSTEIN C Y promulgate a new rule at all, but should leave to Congress the task of investi- leave to promulgate a new rule at all, but should brought to light. the injustice the case to gating and legislating with respect beginning of his tenure articulated his recognition of the limits articulated his recognition of beginning of his tenure of judicial ca- that Associated Press reason for deference. He agreed pacity as an additional had some collected during World right in the news its reporters property War sold at a lower price. INS had pirated and I and which eliminate the need for governmental to institutions, including the judiciary, clauses to resisted the use of the Due Process He had exercise self-restraint. strike down economic bodies, arguing that in a de- regulations of legislative mocracy judgments.should generally defer to those political courts D. B Brandeis did not address whether it was realistic to expect Congress to under- Brandeis did not address whether it take the assignment. But he presumably believed that in this instance leaving a wrong without a remedy to fashioning a judicial rule when was preferable legislative attention and waitingprudential considerations dictated inviting for Congress to act. “Courts,” he wrote, “are ill-equipped to make“Courts,” he wrote, “are ill-equipped the investigations which should precede a determination of the limitations which should be set upon any property right in news.” 2016] G dissent in of INS’s behavior was in the setting of the “obvious,” he said, but injustice of a decision for the Associated Press. case was not sufficient to support scribe the [needed] detailed regulations . . . .” . . . scribe the [needed] detailed regulations (1931); New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 283-285, 310 (1932) (Brandeis, J., dis- (1931); New State Ice Co. v. Liebmann, 285 senting). 38800-mqt_100-2 Sheet No. 98 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 98 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 98 Side B 02/22/2017 09:25:38 M K de- C Y . 85, 93 148 EV .L.R adjudicating Ashwander v. v. Ashwander A 150 Duplex Printing , 78 V [100:461 [100:461 anticipating constitutional ques- constitutional anticipating 146 and striking down a statute absent its and striking down 152 The opinion, which brought together years of together years opinion, which brought The ) 2/16/17) 11:38 AM 145 ELETE MARQUETTE LAW REVIEW MARQUETTE 153 D OT N O (D : DOCX Custom and Law as Sources of Property Rights in News Custom and Law as Sources of Property Rights -P. (“The Court will not pass upon the validity of a statute upon complaint of one who (“The Court will not pass upon the validity (“The Court will not pass upon a constitutional question, although properly presented (“The Court will not pass upon a constitutional at 347 (“The Court will not ‘formulate a rule of constitutional law broader than is re- at 347 (“The Court will not ‘formulate a rule at 348 (“The Court will not pass upon the constitutionality of a statute at the instance at 346–47 (“The Court will not ‘anticipate a question of constitutional law in advance at 346–47 (“The Court will not ‘anticipate a at 346 (“The Court will not pass upon the constitutionality of legislation in a friendly, at 346 (“The Court will not pass upon the constitutionality (“When of an act of the Congress is drawn in question, and even if a seri- the validity at 354–56 (referring to “the long established presumption in favor of the constitutional- ILLER All rights are derived from the purposes of the society in duty to the communi-which they exist; above all rights rises mayty. The conditions developed in industry be such that their struggle without those engaged in it cannot continue danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to formulatingrequire; than the facts rules broader constitutional _M .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. considering a constitutional challenge to a statute where considering a constitutional it can fairly be adjudicating matters brought by those without standing; adjudicating matters brought 147 150 151 152 153 147 148 149 151 145. 288 (1936). 297 U.S. 146 The mostThe in is his concurrence opinions of Brandeis’s cited Finally, notwithstanding his concern regarding the burdens on the people his concern regarding the burdens Finally, notwithstanding 149 OLDSTEIN construed in a manner it; to sustain non-adversary, proceeding, declining because to decide such questions is ‘legitimate only in the last non-adversary, proceeding, declining because of real, earnest and vital controversy between individu- resort, and as a necessity in the determination als.’”). tions; claims who have benefitted from brought by those are challeng- the laws they ing; Tennessee Valley Authority. Tennessee clear unconstitutionality. by the record, if there is also present some other ground upon which the case may be disposed of.”). by the record, if there is also present some other fails to show that he is injured by its operation.”). of one who has availed himself of its benefits.”). ascertain ous doubt of constitutionality is raised, it is a cardinal principle that this Court will first whether a construction of the statute is fairly possible by which the question may be avoided.”). cases). ity of a statute” and citing statements against findings of unconstitutionality except in clear Associated Press: of the necessity of deciding it.’”). applied.’”). quired by the precise facts to which it is to be 482 G ciding cases on a constitutional basis whenciding cases on a ground is availa- an alternative ble; (1992). experience and thought about the role of the Supreme guide- Court, provides the role of and thought about experience deciding the rules against He articulated inaction. judicial action or lines for context; outside of an adversarial questions of governmental had an essen- Brandeis also believed that government power, As he concluded in his dissent in tial regulatory function. Press v. Deering 38800-mqt_100-2 Sheet No. 98 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 98 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 99 Side A 02/22/2017 09:25:38 483 dis- see al- Olmstead New State Ice v. 154 ). Brandeis’s commitment to So, too, the rights of free So, too, the rights 160 155 Liebmann Instead, “[t]heir exercise is subject to Instead, “[t]heir 156 ) 2/16/17) 11:38 AM And although his formulation imagined experi- And although his formulation 158 Decades later Justice Harlan referred to Brandeis’s Decades later Justice Harlan referred ELETE D 159 OT N O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 478 (1937) 468, 478 U.S. Local No. 5, 301Senn v. Tile Layers Protective Union, DOCX -P. concurrence, must sometimesyield since they were “fundamen- dissent in 1932. ILLER New State Ice Co. v. Liebmann, 285311 (1932). U.S. 262, Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 (1921) (Brandeis, J., dissenting). Olmstead v. United States, 277 U.S. 478 (1928) (Brandeis, J., dissenting). 438, Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring). set the limitsset the permissible of duties the and to declare contest new situation demands.which the the function of the This is and group rights individual which, while limiting legislature may and defense, of aggression processes of justice substitute for the more primitive method by combat. of trial _M . .Id. . . . . Id. See also 158 159 160. (1968) (Harlan, J., dissenting); 145, 193 U.S. Louisiana, 391 Duncan v. State of 154 155 156 157 Thus, rights, even those Brandeis most even those Brandeis Thus, rights, must cherished, sometimes yield to Brandeis accepted government not simply regulation, to avert harm, how- 157 Whitney M K Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 752 (1964) (Stewart, J., dis- OLDSTEIN C Y so values” ofsenting) (stating that the point regarding “the unique states in the federal union “was never better made” than by Brandeis in his “classic dissent” in government’s in his regulatory function. As he wrote proper be let alone—thesent, the “right to most comprehensive of rights and the right most men,” valued by civilized the Fourth an absolute, because was not Amendment did not prohibit every governmental individual pri- intrusion into intrusion.” unjustifiable vacy but only “every (balancing the constitutional right of union members to publicize “the facts of a labor dispute” and union members to (balancing the constitutional right of of public the state’s police power to “regulate the methods and means of publicity as well as the use streets”). restriction, if the particular restriction proposed is required in order to protect in order to protect particular restriction proposed is required restriction, if the the State from destruction or from serious injury, political, economic, or moral.” speech and assembly, which he recognized as basic to political society in society speech and assembly, which as basic to political he recognized his tal, [but] not in their absolute.” nature mentation both levels of a federal government, at experimentingthe state at is one of the happy incidents of the fed- level offered a special advantage: “It eral system State may, that a single courageous if its citizens choose, serve as economicand a laboratory; and try novel social experiments to without risk the rest of the country.” “laboratory” metaphor as a “celebrated dictum.” 2016] G Liebmann ever, but out of a sense of optimism the virtue of experimentation as regarding an engine of progress. “There must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet he wrote in his changing social and economic needs,” 38800-mqt_100-2 Sheet No. 99 Side A 02/22/2017 09:25:38 A 02/22/2017 No. 99 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 99 Side B 02/22/2017 09:25:38 M K C Y [100:461 161 372 (1998). 167 Jay Burns Baking v. Bryan, 264 U.S. opinion which was decided at was decided opinion which Erie RANSFORMATIONS But a reader is bound to juxtapose But a contains some of his most stirring :T But stare decisis was not an “inexo- But stare decisis was not 162 165 EOPLE P Sometimes, if we would guide by the light of reason, we Sometimes, if we would guide by the light of does not command that we err again when we have occa- does not command that we err Yet the two views do not cancel one another the two views do not cancel one Yet HE is ordinarily a wise rule of action. But it is not a universal, T 163 ) 2/16/17) 11:38 AM E ,W New State Ice ELETE MARQUETTE LAW REVIEW MARQUETTE D stare decisis OT N O Courts must be willing to overturn constitutional deci- C. Brandeis’s Students: Later Justices , 285 U.S. at 310. CKERMAN (D 166 A Di Santo v. Pennsylvania, 273 U.S. 34, 42 (1927) (Brandeis, J., dis- see also Di Santo v. Pennsylvania, 273 U.S. Courts should generally follow precedent in order to lend Courts should DOCX 164 -P. RUCE B at 405–06. at 405. at 412; ILLER See New State Ice _M .Id. .Id. .Id. 161. 162. 285 U.S. at 311 (Brandeis, J., dissenting); see also 163. 164. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407–08 (1932) (Brandeis, J., dissenting) 165 166 167 Brandeis’s dissent in Brandeis’s dissent Brandeis’s formulations to percolate through the U.S. Re- have continued Brandeis’s belief in experimentation also informed his understanding of OLDSTEIN rable command.” writing, most notably his final sentence: “If we would guide by the light of guide by the light “If we would writing, most notably his final sentence: reason, we must let our minds be bold.” that uplifting message with a line earlier in the opinion: “Manthat uplifting message within the opinion: his is weak, and a line earlier judgment is, at best, fallible.” senting) (“But the doctrine of and sion to pass upon a different statute. In the search for truth through the slow process of inclusion such ques- exclusion, involving trial and error, it behooves us to reject, as guides, the decisions upon 264 U.S. 219, 238 (1924) Washington& Co., v. Dawson have been mistaken.”); tions which prove to 504, 517, 520 (Brandeis, J., dissenting) (“ must let our minds be bold.”). 484 federalism, as a means of promoting experimentation gov- and decentralizing ernmental his also reflected in power, was G the time power of Congress’s a broader understanding was adopting the Court Commerceunder the As Bruce Ackerman Clause. “just at the mo- observed, ment old notion that Congress destroying the Deal Court was that the New had limited the economy, powers over a new—if Brandeis was creating more modest—constitutional for states’ rights in the courts.” role ports in the seventy-seven years since he left the Court. It is a particularly ra- he left the Court. ports in the seventy-seven years since consistency and predictability to law. sions which otherwise resisted correction “to bring its opinions into agreementsions which otherwise resisted correction with experience and with facts newly ascertained.” out, and it is very possible to admireout, and it is very Brandeises. Indeed, the different both judgments the complexity reflected judgments of Brandeis’s and his recognition that the law, life, often had to accommodate like seemingly inconsistent beliefs. stare decisis. (Brandeis, J., dissenting) (“Stare decisis (“recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate (“recognizing that the process of trial and error, also in the judicial function”). inexorable command.”). 38800-mqt_100-2 Sheet No. 99 Side B 02/22/2017 09:25:38 B 02/22/2017 No. 99 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 100 Side A 02/22/2017 09:25:38 , 485 97 12 12 98 66 50 15 11 14 183 vade mecum The quality of 169 provides guidelines or Ashwander dissent. They are cited for their ring- They dissent. Olmstead ) 2/16/17) 11:38 AM ELETE D OT N O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D is cited nearly twice as many times as the next nearest DOCX -P. concurrence and 168 ILLER _M Whitney 168. The data in this Table relies on research performed over several years by Stacey Osmond, 169. Ashwander v. Tenn. Valley Auth., 297 U.S. at 346–48 (Brandeis, J., concurring). The frequency with which the Court or its justices have invoked Brande- which the Court or its justices have The frequency with Table 1 Number or Dissent Citing a Brandeis Concurrence of Opinions Ashwander The next two most opinions are the familiar cited pair of Brande- M K OLDSTEIN C Y Ashwander v. Tennessee Valley Authority (1936) Tennessee Valley Authority Ashwander v. Missouri ex rel. Southwestern Bell Telephone Co. v. Missouri ex rel. Southwestern Bell Telephone Co. Public Commission of Missouri (1923) Service Publishing United States ex rel. Milwaukee Social Democrat Co. Burleson (1921) v. Crowell v. Benson (1932) Olmstead v. United States (1928) Whitney v. California (1927) Burnet v. Coronado Oil & Gas Co. (1932) New State Ice Co. v. Liebmann (1932) Duplex Printing Press Co. v. Deering (1921) Myers States (1926) v. United 2016] concurrenc- to his to look continued have successors Brandeis’s that re tribute majorityJustices cite prevailing because they reflect opinions es and dissents. Their use signi- dissents can claim and Concurrences no such authority. law. they are like- a perception that ideas expressed and of the fies an appreciation regard in which of the high either because ly to be persuasive Brandeis is held ideas themselves.or because of the or dissents since his retirementis’s concurrences provides one telling measure Since his retirement February, 1939 Supreme in influence. of his continuing or dissents. Ta- cited forty-seven Brandeis concurrences Court opinions have mostble 1 shows the ten opinions. cited Brandeis discretionary Since 1939 G case. This should hardly be a surprise. This should hardly be a surprise. case. ing rhetoric on behalf of freedom of expression and a right to be let expression and a right to ing rhetoric on behalf of freedom of the opinion and the authority of the author give it the aura of a the opinion and the authority of the justice. waiting to be consulted by any conscientious is’s Zachary Merkle, Alex Davis, and most recently Jordan Buchheit. The Table and related numbers on Zachary Merkle, Alex Davis, and most recently Jordan Buchheit. The Table and related numbers Court’s the following pages are updated to include cases decided through the end of the Supreme October 2015 term. (unpublished excel sheets and summary charts) (on file with author). “rules” that Brandeis propounded for the federal judiciary. “rules” that Brandeis propounded for 38800-mqt_100-2 Sheet No. 100 Side A 02/22/2017 09:25:38 02/22/2017 A No. 100 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 100 Side B 02/22/2017 09:25:38 M K note C Y [100:461 supra , New State New State Lochner v. ILLER Abrams v. United Abrams v. see M Youngstown v. Sawyer A wide discrepancy in A wide discrepancy 172 , that in some a doctrine in a cases from the others. During that period, ten justic- During that period, 173 opinion more than thirty times. (1896), Justice Holmes’s(1896), in stare decisis New State Ice ) 2/16/17) 11:38 AM Burnet v. Coronado Oil & Oil v. Coronado Burnet Co., in which Gas the Ashwander ELETE MARQUETTE LAW REVIEW MARQUETTE D OT N O (D After these cases comesAfter in Brandeis’s dissent DOCX 171 -P. (1905), and Justice Jackson’s concurrence in (1905), and Justice ILLER The next case is case The next Olmstead v. United States, 277 U.S. 438, 478–79 (1928) (Brandeis, J., dissenting); Whit- Olmstead v. United States, 277 _M . 170 (1919) with 57 citations would Brandeis’s first five. crack have cited Brandeis’s 170 171. Burnet 393, 405 (1932) (Brandeis, J., dissenting). v. Coronado Oil & Gas Co., 285 U.S. 172. New v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). State Ice Co. 173. excel sheets and summary chart) (on file with authors). (Unpublished 174. Chief Roberts (4) and Justices Stevens (6), Scalia (4), Kennedy (3), Souter (1), Justice These numbers become more even impressive compared when to citations at 97–99. 174 OLDSTEIN (1952) have been cited 32, 43 and 44 times(1952) have been other Supreme by in opinions of Brandeis’s concur- less often than the top five Court justices respectively, Only Justice Holmes’s dissent in rences or dissents. States gested by the numberhave looked to his opinions for guid- of justices who is further sug- The extent of Brandeis’s continuing influence on the Court seventy-seven years, 34 of the 42 justices who have During the last ance. retired have cited at least one of his con- served on the Court since Brandeis who cited Brandeis mostcurrences or dissents. The ten justices often were Brennan (62), Rehnquist (42), Mar-(65), Justices Stevens (79), Frankfurter (37), Breyer (32), Harlan (24), O’Connor (23), and Powell Douglas shall (39), ideologies and dispositions. Half of (23), a list that includes jurists of varying discretionary opinions at least ten the justices (21) have cited Brandeis’s is wan- There is no indication that Justice Brandeis’s influence times. concur- Since 2000, 12 of the 13 justices have cited thirteen Brandeis ing. rences or dissents ninety-seven times. legal system much based as as is the American, on precedent is inevitably controversial. New York of the prominent concurrences or dissents of other justices. Justice Harlan’s of other justices. of the prominent concurrences or dissents Ferguson famous in Plessy v. dissent right to experiment the economy in its legislation affecting and its fortunate we would guide by the credo: “If with its closing position as a “laboratory,” mustlight of reason we let our minds be bold.” held the Brandeis seat for nearly thirty- of his influence. Justice Stevens, who Testimonials by many evidence of Brandeis’s successors provide further America’s a “hero” and “one of five years, referred to Brandeis as greatest Justice wrote a disquisition on a disquisition Justice wrote 486 alone. G number of citations separates 106, ney v. California, 274 U.S. 357, 375–76 (1927) (Brandeis, J., concurring); es Ice, that combines an opinion arguments the Justice’s of a state’s on behalf Thomas (3), Ginsburg (1), Breyer (10), Alito (1), and Kagan (1). 38800-mqt_100-2 Sheet No. 100 Side B 02/22/2017 09:25:38 02/22/2017 B No. 100 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 101 Side A 02/22/2017 09:25:38 487 the cf. also 184 Dennis v. Dennis v. a leading 180 , at 585 (Douglas, dissent simply to id. New York Times New York Times , 253 U.S. 330, 333 Myers and Holmes’s dissent in and Pierce about the cost of governmentabout the cost of and Miranda v. Arizona at 629 (Douglas, J., concurring); respectively. In id. 183 186 Schaefer as well as several other of his discre- as well as several 176 and Frankfurter invoked Brandeis’s and Frankfurter at 567–68, 571 (Jackson, J., concurring) (citing (Jackson, J., concurring) id. at 567–68, 571 Olmstead 181 178 Id. at 568 n.12 (Jackson, J., concurring); note 111, at 5. Justice Brandeis’s influence on Justice Ste- note 111, at 5. Justice Brandeis’s influence on id. Myers ) 2/16/17) 11:38 AM Mapp Ohio v. Whitney supra at 632 n.2 (Douglas, J., concurring) (citing Brandeis’s majority , ELETE In D OT N 182 O which Brandeis joined); Youngstown Sheet & In Youngstown Sheet v. Sawyer Tube Co., BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D IVE CHIEFS see also id. four opinions representing the views of seven justices cited of seven justices the views four opinions representing ). Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring); (1927) 274 U.S. 357, 372 ). Whitney v. California, 179 ,F , 384 U.S. at 479–80. DOCX and the Fifth Amendment,and Justice Brennan, in his majority opinion, cited Brandeis’s “clas- 177 -P. 185 opinion. at 526 (Frankfurter, J., concurring) (citing Jay Burns Baking v. Bryan, 264 U.S. 504, at 526 (Frankfurter, J., concurring) (citing Jay Justice Breyer called Brandeis a “legal seer” and praised his “im- praised seer” and a “legal Brandeis called Breyer Justice 187 at 613–14 (Frankfurter, J.., concurring); at 506–07 (Vinson, C.J., plurality opinion for himself, Reed, Burton, and Minton, at 506–07 (Vinson, C.J., plurality opinion for J.); at 595; Schaefer TEVENS ILLER , 343 U.S. at 702 (Vinson, C.J., dissenting (citing Brandeis’s , 343 U.S. at 702 (Vinson, C.J., dissenting United States v. North American Transportation & Trading Co. 175 Id. _M and .Id. .Id. . .Id. . Mapp, 367 U.S. at 659. . Miranda . at 535 (Frankfurter, J., concurring) (citing . at 535 (Frankfurter, J., concurring) (citing id 175. S 180. 579 (1952). 343 U.S. 181 176. Stephen Breyer, Assoc. J, U.S., Speech at Brandeis School of Law, Louisville, Ky.: Jus- 177. 494 (1951). 341 U.S. 178 179 182 183. 367 U.S. 643 (1961). 184. 384 U.S. 436 (1966). 185 186 187. 376 U.S. 254 (1964). Whatnot simply is striking is dis- concurring and often Brandeis’s how M K at 537 (Frankfurter, J., concurring); OLDSTEIN C Y tionary opinions. vens was reinforced by the fact that the latter’s revered constitutional law professor, Nathaniel Na- vens was reinforced by the fact that the latter’s thanson, had clerked for Justice Brandeis. 517); Brandeis’s concurrence in Brandeis’s concurrence 2016] judges.” G partiality, wisdom,partiality, and judicial depth.” senting opinions are cited, but that they are invoked in manyinvoked most of the but that they are are cited, senting opinions sem- lawinal constitutional time. since his decisions in For instance, United States Ashwander of evidence under the Fourth justifying the exclusion law-breaking in Amendment Court quoted Brandeis’s warning in Court quoted Brandeis’s case on presidential power growing out of President Truman’s power growing out of President case on presidential order to seize America’s steel mills, and Douglas Justices Frankfurter in their concurrences dissent in cited Brandeis’s Whitney Pierce v. United States, 252 U.S. 239, 253 495 (1920);Schaefer v. United States, 251 U.S. 466, 493, (1920) (Brandeis, J., dissenting). tice Brandeis as Legal Seer (Feb. 16, 2004) (available at tice Brandeis as Legal Seer [https://perma.cc/Z8N9- http://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_02-16-04 BWK5]). id. J., dissenting). Abrams v. United States, Youngstown v. Sullivan record, not to rely on, Brandeis’s opinion).272 U.S. 52 (1926)). Myers Adm’x v. United States, opinion in (1920)). 38800-mqt_100-2 Sheet No. 101 Side A 02/22/2017 09:25:38 02/22/2017 A No. 101 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 101 Side B 02/22/2017 09:25:38 M K 194 con- C Y the 189 Citizens Whitney Justice Ste- 191 When, in 2001, , provided the principle 190 and argued that his dissent Olmstead [100:461 [100:461 Stanley v. Stanley Georgia opinions in striking down opinions in striking Whitney , not In 188 Whitney the case holding that the Second the controversial campaign finance Whitney Justice Breyer’s concurrence cited Justice Breyer’s 196 195 , , and 192 at 466). in their dissents). Whitney ) 2/16/17) 11:38 AM Olmstead Liebmann Whitney. at 301 (Goldberg, J., concurring) (citing Brandeis’s at 301 (Goldberg, J., concurring) (citing Brandeis’s ELETE MARQUETTE LAW REVIEW MARQUETTE D and that Chief Justice Rehnquist’s dissent also invoked. that Chief Justice OT dissent for the “right to be let alone” as welldissent for the “right earli- as the N at 427, and 193 O (D Whitney McDonald v. Chicago McDonald v. see also id. Hill v. Colorado, 530 U.S. 703, 716–17, 751, 788 (2000) (the majority, associat- (the majority, Hill v. Colorado, 530 U.S. 703, 716–17, 751, 788 (2000) DOCX , Liggett -P. at 664, 700 (2000) (Stevens, J., dissenting) (Justice Stevens, in dissent, writing for Olmstead Olmstead D. Brandeis’s Students: Presidents of the United States at 270; at 564, 566–67. at 534–35 (2001). at 536–38, 540 (Breyer, J., concurring). at 553 (Rehnquist, C.J., dissenting). at 553 (Rehnquist, C.J., dissenting). applied to economic matters.). ILLER at 395 concurrence while Justice Stevens, in the principal dissent, cited Brandeis’s opinions in dissent, concurrence while Justice Stevens, in the principal _M . See also .Id. .Id. .Id. .Id. .Id. 197 Boy Scouts 197 188 196. 863, 865, 869, 921, 926 (2010) (Justices Stevens and Breyer each citing 742, U.S. 561 189. 557 (1969). 394 U.S. 190 191. Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). 192 193 194 195.310, 395, 427, 466 (2010) (Chief Justice Roberts, concurring, citing Brandeis’s U.S. 558 Yet rich corpus of ideas Justice even the Court’s continued reliance on the Liebmann OLDSTEIN in himself and three other justices, invoked Brandeis’s “laboratory” of democracy metaphor while the himself and three other justices, invoked Brandeis’s “laboratory” of democracy metaphor majority invoked Brandeis’s concurrence about free speech in vens’s majority cited the 1890 Warren opinion article as well as and Brandeis in the “classic opinion” More recently, multiple Brandeis discretionary opinions were cited in 488 sic formulation” free expression. regarding Election Commission United v. Federal G Brandeis’s the Court considered whetherthe Court the First Amendment for precluded prosecution been improperly that had a phone conversation broadcasting the intercepted, constitutional principles for guidance regarding the Court looked to Brandeis at stake. discussion and privacy that were regarding public Amendment illus- These cases right to bear arms applied as against the states. on opposing sides of a justices trate a not infrequent phenomenon in which they have reached with Brandeis’s teach- case each seek to associate the result ings. Court drew fromCourt drew Brandeis’s of obscenity. possession statute that outlawed Georgia a Brandeis’s opinions in ing the right of an unwilling listener to be free from unwanted communications to the right to be let ing the right of an unwilling listener to be free from alone, whereas Justice Scalia dissented, arguing that the right to be let alone applied to government, not private speech and Justice Kennedy, arguing that opin- that was relevant to speech); Boy Scouts of America v. Dale, 530 U.S. 640, 660–61 (majority ion); decision, and in Ashwander Ashwander Brandeis left behind understates his judicial legacy. The ideas he articulated The judicial legacy. Brandeis left behind understates his currence for the proposition that repression causes hatred). hatred). currence for the proposition that repression causes er law review article 38800-mqt_100-2 Sheet No. 101 Side B 02/22/2017 09:25:38 02/22/2017 B No. 101 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 102 Side A 02/22/2017 09:25:38 202 489 APERS APERS .P .P UB UB 2, 6 (Jan. 10, 134, 144 (Feb. APERS drew from him APERS 195, 198–99 (Feb. 23, .P President Gerald .P 204 691, 692 (Dec. 2, 1974). UB 201 UB APERS 814, 819 1969); Con- (Oct. 20, .P APERS .P UB UB President Reagan, who re- President Reagan, APERS 203 .P UB President George H. W. Bush in- . 1252, 1253–54 (Sept. 12, 1983) (“The idealis- 205 Remarks at the Annual Meeting of the National dissent. see also Remarks at a White House Briefing on the APERS .P and called him a great jurist on multipleoc- see also UB 199 ) 2/16/17) 11:38 AM Olmstead President Richard M. President Richard described Nixon, who ELETE 198 D 965, 976 (Sept. 23, 1971) OT N O 581 (Apr. 2, 1979). 1008 (Sept. 9, 1987); BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D APERS .P APERS DOCX APERS UB -P. .P P .P Special Message to the Congress on Crime in America, 1 Special Message to the Congress on Crime in P 1110, 1, 1983); 1114 (Aug. UB 1103, 1104 (Sept. 30, 1987) (describing Brandeis as “great” and “legendary”). ; Remarks at an Informal Meeting With Members of the White Press Corps on House also closed a national radio address on the American radio address also closed a national right of priva- UB ILLER Remarks at the Annual Meeting of the American Bar Association in Atlanta, Georgia, 1 Georgia, Atlanta, Remarks at the Annual Meeting of the American Bar Association in 200 _M .Id. . see also APERS APERS 202. Remarks at the Boy Scouts Annual Awards Dinner, P 198.P Annual of the Union, 1 Message to the Congress on the State 199. Remarks at a Question-and-Answer Session With a 10-Member Panel of the Economic 200 204. Statement on the American Bar Association’s Rating of Supreme Court Nominee Robert 205 203. National Policy Message to the Congress Privacy of on Proposals To Protect the Privacy 201.P Radio Right of Privacy, Address About the American In his 1967 State of the Union Address, President Lyndon B. Johnson in- Lyndon B. Address, President State of the Union In his 1967 .P .P M K OLDSTEIN UB UB C Y ferred to Brandeis as one of the “great [American]ferred to Brandeis as one of the “great jurists” 1967); in warning against the dangers of centralized government. He told the Ameri- government.in warning against the dangers of centralized when he said, was right Brandeis Justice can Bar Association in 1983: “I think ‘Experience teaches us to be most on our guard in protecting liberty when Government’s purposes are beneficent.’” casions, Ford called Brandeis “one of the wisest” justices in American justices history. “one of the wisest” Ford called Brandeis 312, 313 (Mar. 10, 1967) (same). Club of Detroit. Court Judge Haynsworth’s Nomination to the Supreme P of the Chief Justice of the United States, versation with Newsmen on the Nomination P 389, 397 (May 22, 1969). President Carter began a statementPresident Carter began measures announcing new to protect pri- Brandeis’s vacy by quoting 2016] fromPresidents parties both public discourse. in have resonated bench on the from borrowed have frequently their own prose to advance Justice Brandeis’s proposals. the ‘right mostcalled by civilized valued Brandeis voked “what Justice men’—the an end to wiretapping right to privacy” in calling for except in cases of national security. G cy by stating that “in the first half of this century, Mr. Justice Brandeis called Brandeis this century, Mr.“in the first half of cy by stating that Justice mostprivacy the ‘right men.’ valued by civilized half of this centu- In the last ry, we must also make it the right that is most protected.” Brandeis as one of his “heroes” Brandeis as one of 1974). tic goals of those who centralized American government didn’t change the nature of what we con- tic goals of those who centralized American government didn’t change the nature of what once said that ‘Men born to freedom are naturally Brandeis Supreme Court Justice Louis fronted. lurk in alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty Nomination of Robert H. Bork to be an Associate Justice of the Supreme Court of the United States, Nomination of Robert H. Bork to be an Associate Justice of the Supreme Court of the United P H. Bork, 2 P P 6, 1967) (same); Remarks at the Swearing In of Ramsey Clark as Attorney General, 1 P 6, 1967) (same); Remarks at the Swearing In Individuals. P Association of Towns and Townships, 2 P 38800-mqt_100-2 Sheet No. 102 Side A 02/22/2017 09:25:38 02/22/2017 A No. 102 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 102 Side B 02/22/2017 09:25:38 . , M K UB 766 C Y 1349, [100:461 APERS APERS .P .P (May 20, 2009), UB UB 209 ROJECT (Jan. 21, 2009) (quoting P and the importance On other occasions, 211 APERS 210 .P UB RESIDENCY 2466 (Nov. 4, 2000). P P , APERS .P MERICAN UB see also The President’s WeeklyMay Address 1, , A 2750, 2751 (Dec. 20, 2000). In vetoing a measureIn vetoing that would make unau- 208 ) 2/16/17) 11:38 AM APERS (May 7, 2015), http://www.presidency.ucsb.edu/ws/?pid=110154 ELETE MARQUETTE LAW REVIEW MARQUETTE .P D Remarks at a Republican Party Fundraising Dinner in Los Angeles, Remarks at a Republican Party Fundraising Dinner in UB OT dissent. N ROJECT 168, 169 “laboratories of democracy” metaphor). (Feb. 6, 1990) (invoking O P (D (Jan. 28, 2009) (same); see also APERS DOCX 212 .P -P. APERS Olmstead Olmstead Like Jimmy priva- Clinton invoked Brandeis on Carter, President UB : .P RESIDENCY ILLER P 207 UB See also Memorandum on Preemption Remarks at a Democratic National Committee Fundraiser in Portland, Oregon Justice Brandeis remindedin- us that “those who won our Brandeis Justice discussion is a political . that public . . dependence believed should be a fundamentalduty; and that this of the principle American we must al- caution that His words government.” when considering measuresways tread carefully may that limit public discussion—even when those measures are in- goals. tended to achieve laudable, indeed necessary, _M At a state dinner for the President a state dinner for At of Chile,first President Bush the 682, 683Remarks on the Issuance of Final Regulations on Protection of (May 4, 1999); 206 211. 206.2 P Remarks at the Republican Governors’ Association Annual Dinner, 208. Remarks Announcing the Financial Privacy and Consumer Protection Initiative, 1 P 212. 210. MemorandumInformation Act on the Freedom of 209. Message on Returning WithoutHouse of Representatives Intelligence Approval to the 207. Remarks of Chile, 1 at the State Dinner for President Patricio Aylwin P Within Barack Obama the first ten days of his presidency, twice cited Whitney MERICAN OLDSTEIN APERS cy from the Brandeis that sunlight is one of the best disinfectants); Remarks Following a MeetingBrandeis that sunlight is one of the best disinfectants); With Business Leaders, P 2010, https://obamawhitehouse.archives.gov/the-press-office/weekly-address-president-obama-calls- congress-enact-reforms-stop-a-potential-corpor [https://perma.cc/HYW5-4RF5] (same). may, if its that “[i]t is one of the happy incidents of the federal system that a single courageous state risk to citizens choose, serve as a laboratory; and try novel social and economic experiments without the rest of the country”). A insidious encroachment by men of zeal, well-meaning but without understanding.’”). understanding.’”). but without insidious encroachment by men of zeal, well-meaning 490 a who “foresaw Brandeis” great Supreme “[t]he voked D. Louis Justice Court time State may courageous when a single try novel as a laboratory and serve economicsocial and of the coun- to the rest experiments without risk try.” was to make end of the state that the final that Brandeis “observed recalled men their faculties. And free to develop that ‘Those who he added love free- and courage to be the secret of dom secret of happiness know liberty to be the liberty.’” G Brandeis in advocating governmentaltransparency. Obama virtues of federalism invoked Brandeis for the thorized disclosures of classified information a felony, Clinton relied relied Clinton of classified informationthorized disclosures a felony, on of citizenship. 1351 (Oct. 17, 1989); (May 13, 1992). http://www.presidency.ucsb.edu/ws/?pid=86191 [https://perma.cc/9GU8-QRF9] (quoting Brandeis http://www.presidency.ucsb.edu/ws/?pid=86191 [https://perma.cc/9GU8-QRF9] (quoting Authorization Legislation for Fiscal Year 2001, 3 P P Medical Privacy, Records 3 P California, 1 P 38800-mqt_100-2 Sheet No. 102 Side B 02/22/2017 09:25:38 02/22/2017 B No. 102 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 103 Side A 02/22/2017 09:25:38 : 213 , Nov. 214 ATTER ROJECT P M HAT AGAZINE Ex facto jus T M Remarks at a Demo- RESIDENCY P HINGS IMES T EHAVIOR 491 (Nov. 2, 2015), B THER , N.Y., T MERICAN &O , A IFE UDICIAL L J ROJECT P In this respect, Brandeis stood apart AWS AND , 1956–1963, 58 (Philip B. Kurland ed., 1965). 215 L ODEL OF ODEL F M , O S ’ RESIDENCY P ) 2/16/17) 11:38 AM RANKFURTER F Remarks at a Democratic National Committee Fundraiser in New Committee Remarks at a Democratic National ELETE RANDEIS D RANKFURTER ELIX B F OT The Moral Grandeur of Justice Brandeis F N O ELIX BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: MERICAN (D F USTICE DOCX -P. , A DDRESSES OF Jay Burns Baking v. Bryan, 264 U.S. 504 (Brandeis, J., dissenting). IV. J A ILLER reprinted in _M . See [The law arises from facts]. That ancient rule mustThat ancient prevail in order that [The law arises from facts]. 215. Adams v. Tanner, 244 U.S. 590, 600 (1917) (Brandeis, J., dissenting). 213 214. Felix Frankfurter, Even the voluminousEven the the not fully capture above does evidence presented cases was approach to deciding constitutional First, Justice Brandeis’s Moreover, Brandeis viewed Justice law constitutional as dynamic, not Frankfurter continued, using Brandeis’s language that judgmentsFrankfurter continued, using Brandeis’s regard- M K OLDSTEIN APERS AND C Y legacy of Justice Brandeis’s twenty-three years on the Court. Although much twenty-three Justice Brandeis’s legacy of the Court. years on compelling left behind was of what he his of foundational ideals, articulations morelegacy was sum than the expressed ideals. of his includes his It also While something should be said model judicial performance. of principled regarding his methodology of constitutional decision-making, his judicial be- by trying to identify its opinions than by reading his havior is better captured components. Nevertheless, three interconnected features seem apparent. absolutesHe eschewed in a continuing ef- and abstractions deeply empirical. under- “Knowledge is essential to into harmonyfort to bring law life. with he wrote in a dissent. should precede judging,” standing, and understanding 11, 1956, [https://perma.cc/XX8Z-NGQ8]; York City http://www.presidency.ucsb.edu/ws/?pid=111016 [https://perma.cc/8JF9-TPJ9]; cratic National Committee Fundraiser in Potomac, Maryland (Nov. 4, 2015), http://www.presidency.ucsb.edu/ws/?pid=111018 [https://perma.cc/4RYU-8F6H]. He believed that courts could not determine whether legislatures acted in an courts could not determine whether He believed that manner or capricious unreasonable, arbitrary a complete un- without having derstanding of the facts that might have informed As their outputs. Justice of Brandeis’s appointmentFrankfurter wrote on the fortieth anniversary to the Court: “At a time when constitutional law our was becoming dangerously un- when decisions were rested on hollow responsive to important social changes, formulas, themselves the product of limited experience, he insisted, as the great men of law have always insisted, that law must be sensitive to life.” 2016] G P not only from those committed Lochnerian jurisprudence but to Justice to Holmes, emphasized whose opinions often abstract principles untested against experience. static, and as fundamentally about general purposes, not specific applica- ing whether legislative behavior was arbitrary and unreasonable “should be ing whether legislative behavior was facts, actual or possible— based upon a consideration of relevant oritur we may have a system of living law.” 38800-mqt_100-2 Sheet No. 103 Side A 02/22/2017 09:25:38 02/22/2017 A No. 103 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 103 Side B 02/22/2017 09:25:38 M K C Y see also [100:461 223 222 His votes often did not 225 ) 2/16/17) 11:38 AM note 25, at 122 (associating Brandeis’s “commitment to judicial ELETE MARQUETTE LAW REVIEW MARQUETTE D supra Interpreters should read the Fourth Amendment should read the Interpreters in , OT N 217 O (D or criticized his work as result-oriented, Brandeis’s practice URCELL 224 Whitney, 274 U.S. at 373 (Brandeis, J., concurring); New State Ice Co. v. Lieb- , ,P DOCX -P. Nor should they limitNor should the Fourth Amendment’s protection note 109, at 106–08 Brandeis’s belief in, but omission of, language re- (discussing at 476. at 473. at 472. 218 Similarly, speech must of its crit- be given wide protection because ILLER “Clauses guaranteeing to the individual protection against specific to the individual protection “Clauses guaranteeing The Fifth Amendment jury presentment or indict- a grand required Olmstead v. United States, 277 U.S. 438, 472–74 (1928) (Brandeis, J., dissenting). Whitney 357, 375 (1927) (Brandeis, J., concurring). v. California, 274 U.S. The Constitution afforded protections beyond those the Founding the Founding those beyond protections afforded Constitution The 220 _M supra . See, e.g. . See, e.g. . .Id. .Id. .Id. .Id. . 219 221 , 216 225 223. Jaybird Mining Co. v. Weir, J., dissenting). 271 U.S. 609, 615, 619 (1926) (Brandeis, 224 216 217 218 219 220 221 222. United States v. Moreland, 258 U.S. 433, 451 (1922) (Brandeis, J., dissenting); Justice Brandeis practiced judicial humilityJustice Brandeis practiced judicial by his adherence to jurisdic- Brandeis’s related beliefs in the value of experience and the dynamic beliefs in the value of experience Brandeis’s related na- ICKEL OLDSTEIN menta prosecution but “infamous as a prerequisite for crimes” invited accommodatereinterpretation to conditions. to changing tional rules and principles that limited role and his belief that the Court’s courts should defer to legislative judgment regarding economic matters. Alt- hough somehis commitment have associated to judicial restraint with his progressive agenda ture of law contributed to his humility as a jurist. Judicial decisions were not to revision based on future develop- carved in stone but were always subject B of allowing procedural impediments to dictate his decisions suggests a principled appreciation of the limits imposed on courts. restraint” with its “tactical” use to “defend Progressive values threatened by a hostile judiciary”). restraint” with its “tactical” use to “defend Progressive values threatened by a hostile judiciary”). mann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). abuses of power, mustabuses of power, have a similar to a changing capacity of adaptation world.” light of its animatinglight of its con- an “unduly literal than subject it to purposes rather struction.” garding “living Constitution” in order to gain Chief Justice Taft’s joinder to his dissent). garding “living Constitution” in order to gain Chief Justice Taft’s joinder to his dissent). against unreasonable searches and seizures to the form and seizures searches against unreasonable evil took in the the to had evolved Technology taking. and entering and Founders’ era: breaking give the government means “[s]ubtler and more of invading pri- far-reaching vacy.” ments. a peculiar virtue of our system “It is of law that the process of inclu- allowed to sion and exclusion, so often employed in developing a rule, is not in an opinion yields later to an expression end with its enunciation, and that the impact he wrote in a 1926 dissent. of facts unforeseen,” 492 tions. G ical role in a democracy: to allow to develop and society to im- individuals prove. generation imagined.generation 38800-mqt_100-2 Sheet No. 103 Side B 02/22/2017 09:25:38 02/22/2017 B No. 103 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 104 Side A 02/22/2017 09:25:38 231 Justice Ashwander. he deferred to the he deferred 493 Ashwander. thus can most properly should be overruled and should be overruled Though sympathetic to as hypocritical because it as hypocritical because 228 Erie Erie Swift New State Ice, New State In In if it and its progeny involved a usur- 226 pp. 360-361. Swift He admonished his colleagues that “in the , because he thought the case not justicia- , because he thought 227 ) 2/16/17) 11:38 AM ELETE D Ashwander OT , 274 U.S. at 379 (Brandeis, J., concurring). N O Ashwander, see supra 230 BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D Whitney , Oil & Gas Co., 285 U.S. 393, 405–08 (1932) (Brandeis, J., Burnet v. Coronado , DOCX concurrence suggested a statutory resolution that seemedconcurrence suggested a statutory more -P. at 311. ILLER Erie v. Tompkins, 304 U.S. 64, 90–92 (1938) (Reed, J., concurring). Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring). Ashwander v. Tenn. Valley Auth., 297 U.S. 288, (Brandeis, J., concurring). 341 (1936) Erie _M Ashwander. . See, e.g. . . See, e.g. .Id. . 226 230 231 227. 285 U.S. at 309–10 (“The objections to the proposal are obvious and grave. The remedy 228 229 Some Brandeis’s majority regard opinion in also might be viewed as judicial recogni- Yet Justice Brandeis’s opinion 229 M K OLDSTEIN C Y exercise of this high power [of judicial review] we must power [of judicial exercise of this high our guard, be ever on prejudices into legal principles.” lest we erect our the Court’s resolution of the constitutional issues, Brandeis would of the constitutional issues, Brandeis the Court’s resolution not have reached the merits in ble. judgment a measure in passing the Oklahoma of legislature state that restrict- monopolisticed competition character contradicted even though the statute’s his deeply-held economic views. be seen as a remarkable example of the federal judiciary recognizing a limit so involved confessing past error and re- on its own power even when doing linquishing power it had long asserted. Brandeis may have thought a statutory failure to correct Justice Joseph Story’s ruling unavailable since Congress’s Act for nearly a century impliedreading of the Rules of Decision acquies- argued that the Court had morecence in it. Indeed, Brandeis had to latitude reexamine holdings than its statutory interpretations. its constitutional 2016] merits on the his views reflect procedur- or jurisdictional because a dispute of Whitney’s to uphold Anna intervened. He voted al issues in- conviction, for her conduct the issue of whether raised at trial she had not stance, because danger.” a “clear and present presented G tion that the power of the federal judiciary was limited. It seemsjudiciary tion that the power of the federal harsh to condemn Brandeis for overturning pation of power by the federal judiciary in the first place. On the contrary, it in the first place. pation of power by the federal judiciary would seem commendable, appropriate, indeed for the Court to recognize the had aggrandized the power of the fed- error of a course it had endorsed which state courts. eral judiciary at the expense of the might bring evils worse than the present disease. The obstacles to success seem insuperable.”). might bring evils worse than the present disease. seem insuperable.”). The obstacles to success Brandeis, for the Court, rested the decision on constitutional, rather than statu- Brandeis, for the Court, rested the decision his prescriptions in tory, grounds contrary to one of deviated from some set forth two of the rules he in years earlier argued regarding whether The parties had not Reed’s true to For a fuller discussion of 38800-mqt_100-2 Sheet No. 104 Side A 02/22/2017 09:25:38 02/22/2017 A No. 104 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 104 Side B 02/22/2017 09:25:38 M K C Y USTICE .J R M he dissented be- he dissented ’s teachings, in order to ’s teachings, in order [100:461 [100:461 he articulated a robust version of he articulated a robust Ashwander RANDEIS B he reached out to decide a constitutional he reached out to That understanding of the institution That understanding of the institution These results did not reflect inconsisten- These results did not reflect reveals a further characteristic of his judi- further characteristic reveals a Whitney 236 235 237 . , 297 U.S. at 346–48. Erie USTICE Erie ’s statutory interpretation. interpretation. ’s statutory ) 2/16/17) 11:38 AM The Social Thought of Mr. Justice Brandeis, in V. J V. , he was not unsympathetic to the Court’s ruling on ELETE MARQUETTE LAW REVIEW MARQUETTE Thus, in Ashwander Swift D And in OT 232 234 N note 106, at 194. O Swift v. Tyson (D , 297 U.S. at 341 (Brandeis, J., concurring). supra , Max Lerner, Ashwander DOCX , -P. International News Service v. Associated Press Press Associated v. News Service International , 304 U.S. at 69; In ILLER ILLER 233 7, ed., 1932) (“At the basis of Mr. 30 (Felix Frankfurter Justice Brandeis’s attitude toward Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring). Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring). _M . . Ashwander .Erie . See, e.g. .Id. he decided on constitutional grounds because he respected Congress’s he respected grounds because on constitutional he decided 233 234 235 236. M 232 237 One need only open a newspaper or a computerOne need only open a newspaper to be reminded that the Brandeis’s predicamentBrandeis’s in Brandeis believed that the Supreme was “a teacher to the nation of Court RANDEIS OLDSTEIN dangers he warned of remain,in some respects in even more insidious forms today than when moral he wrote. That Brandeis’s teachings have not pre- does not markvailed in the world in which we live him as a failure or render his principles irrelevant. always prevail in his day either. “If the They did not lessons you have taught do not seemto have been learned very well yet, that Brandeis Raushenbush wrote her is not for any lack on your part,” Elizabeth cy. They were rather the product of a conscientious effort to manageThey were rather the product princi- cy. ples in conflict. cial behavior. Notwithstanding formulate his ability to princi- foundational He came recognized that ideals often into ples, he was ultimately a balancer. someconflict and that at point accommodations made needed to be to manage the inevitable tension. cause he appreciated Congress’s superior competence superior appreciated Congress’s cause he provide a remedy, to in Erie implicit in acquiescence the problem of regulation is his conviction that no rights are absolute.”). the problem of regulation is his conviction that no rights are absolute.”). dissenting). B 494 Whereas in G both scholarly and moral truths.” shaped his conception of his duty as a justice. He sought to make his opinions make a justice. He sought to shaped his conception of his duty as his instructive, not simply and he continued to rework them convincing, so they would teach, not simply persuade. question, seemingly at odds with one of question, seemingly at odds with one of reverse what regarded as an unconstitutional assumption he of power by the federal judiciary in the merits prevent it from of judicial behavior should but thought principles reaching those issues. Free Speech but ruled against Anita WhitneyFree Speech procedural on grounds. 38800-mqt_100-2 Sheet No. 104 Side B 02/22/2017 09:25:38 02/22/2017 B No. 104 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 105 Side A 02/22/2017 09:25:38 239 495 Rather, a century after he after a century Rather, note 1, at 634. 238 note 8, at 18 (alluding to Moses Maimoni- supra , supra ASON , ) 2/16/17) 11:38 AM ELETE D , which attempted to reconcile Aristotle’s theories with Jewish theolo- OT N O BRANDEIS: THE LEGACY OF A JUSTICE OF A LEGACY THE BRANDEIS: (D DOCX , A Law Clerk’s Remembrance -P. ILLER _M Guide for the Perplexed 239. Freund 238. Letter, February 14, 1939, quoted in M M K OLDSTEIN C Y gy). des’s 2016] from retired after he the day father the Court. G joined the Court, Brandeis’s discretionary opinions provide a reservoir of opinions provide discretionary Court, Brandeis’s joined the moral considering many to help in concepts complicated chal- constitutional still. Asthat face us re- concluding a 1978 observed in Paul Freund lenges membrance now coming “The generation of Justice Brandeis, age would of find a remarkably sympathetic in the life and works of guide to the perplexed were madeBrandeis, if only they aware of this resource of wisdom.” 38800-mqt_100-2 Sheet No. 105 Side A 02/22/2017 09:25:38 02/22/2017 A No. 105 Side Sheet 38800-mqt_100-2