Thursday 5 June 2014


Today is the 98th anniversary of the swearing in of Louis Brandeis as a Justice of the US Supreme Court. Do you think he (L) looks like John "Mad Men" Slattery (R)? His elevation was not without its hurdles.  Six former presidents of the American Bar Association and even former US President Taft denounced President Wilson's nomination of Brandeis.  There was a strong whiff of anti-semitism in their rejection, although these pillars of society couched their objections in their perception that Brandeis was a radical.  Radical is good.  It allows for the questioning of our unconsidered certainties. Inosfar as the US is bedded down as an inclusive multicultural society, it owes a debt to Brandeis.  Insofar as the individual citizens of the federal republic are free from intrusive scrutiny by government, it owes a debt to Brandeis.  In 1890, when he was a 34 year old lawyer in private practice he wrote an article (Vol.IV, Dec 15 1890, No. 5) in the Harvard Law Review called "A Right to Privacy".  In that Brandeis (and Warren) elaborated on "the right to be let alone", taking us through what common law has to say on the matter and citing case law to the effect that you own a) your photographic likeness b) copies of artistic stuff that you own c) the contents of letters sent in private to another individual and that, even as a 'public person'  you have the right to keep private aspects of your private life (your homosexuality for example) that do not impinge on your ability to exercise your office.

While on the Supreme Court bench, Brandeis offered a classic dissenting opinion in the case of Olmstead vs United States. He argued that wiretapping, although it wasn't an invasion of the private home, nevertheless invaded upon the right to be let alone with your private conversations even if Olmstead was a notorious millionaire bootlegger.  In Whitney v. California, Brandeis, with the other 8 Supreme Court Judges, upheld the conviction of Anita Whitney for being a communist (and therefore advocating the violent overthrow of the government, although Whitney denied this intention) but elaborated the necessity to define and establish that there was a 'clear and present danger' before anyone was arrested for expressing an opinion. "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears".

A few more soundbytes from Brandeis (clearly we need to read some more of his opinions because they have been eroded in detail in the 70+ years since he died):
  • "We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."
  • “America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.”
  • “Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.”
  • “I abhor averages. I like the individual case. A man may have six meals one day and none the next, making an average of three meals per day, but that is not a good way to live.”
  • “If we would guide by the light of reason we must let our minds be bold.”
  • “Most of the things worth doing in the world had been declared impossible before they were done.”
  • “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”
Brandeis University was founded shortly after his death as a nonsectarian Jewish community-sponsored coeducational liberal arts college and named for him after Albert Einstein withdrew his name and support from the governing body.  Einstein wanted British radical socialist intellectual Harold Laski to be the first president of the institution but the rest of the organising committee felt this was a step too far left.  I guess Louis Brandeis was, in Goldiloxian politics, just left enough.

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