Judge Dennis Davis
Judge Brandeis
Judge Dennis Davis - Judge Brandeis
- So, thank you very much, especially shifting gear to some quite dramatic extent from Aaron Copland to Louis Brandeis, but Brandeis, as I suppose, is a figure, just like Copland, in some ways, who we should remember, and just like Copland’s music, if I could put it this way, is really still central to the broader American body of classical music. Louis Brandeis, for reasons I’m going to talk about in a moment, not withstanding that he’s been dead for a very long time, remains, in a couple of very interesting ways, so central to law in general, and American law in particular. So, who are we talking about? We’re talking about Louis Brandeis, the first Jewish American Supreme Court justice who got onto the American Supreme Court on June 5th, 1916. We’ll come back to that in a moment. He replaced Justice Joseph Rucker Lamar. He was born in Louisville, Kentucky, November the 13th, 1856. In 1877, he graduated from Harvard Law School with the highest grade point average at that point in the history of the university. Shortly thereafter, he entered private practise, and made a very significant contribution as a legal practitioner to American law until, as I say, 16 years later, or should I say, 26 years later, he was appointed to the US Supreme Court in 1916. Let me just, if I could, give you a little clip of Brandeis just to set the scene, and then I’ll explain to you what I intend to do in this lecture of mine. So, if we could have Clip One, Lauren?
[Narrator] On the 1st of June, 1916, Louis Brandeis became the first Jewish justice on the Supreme Court to the United States of America. Louis Brandeis was born to Jewish parents who had moved to the United States from Prague in the aftermath of the European Revolutions of 1848. He grew up in Kentucky, and graduated from Harvard Law School with the highest grades ever achieved up to that point when he was 20 years old. Brandeis soon established himself as a talented barrister, and set up a law firm in Boston with Samuel Warren, a friend from his time at Harvard. The success of the firm provided him with the financial security to take on an increasing number of progressive cases that championed social justice, and for which he took no payment, since he deemed them to be of public interest. This led to Brandeis earning the moniker, the People’s Lawyer, as he challenged the power of big business, fought to expose public corruption, and oppose the monopolistic behaviour of oligarchs. On the 28th of January, 1916, President Woodrow Wilson nominated Brandeis to the Supreme Court, but he faced bitter opposition from business owners and other members of the social and economic elite who viewed him as a radical, alongside broader antisemitic attitudes. As a result, it took 125 days for him to be finely confirmed on the 1st of June by a vote of 47 to 22. As a Supreme Court justice, Brandeis wrote opinions in favour of individual liberty and freedom of speech while protecting citizens’ rights to privacy. When he eventually retired from the Supreme Court in February, 1939, The New York Times, which had led criticism of his nomination in 1916, referred to him as one of the great judges of our time.
So, that gives us a little bit, just a feel for Brandeis. I’d want to say that he wasn’t just a great Supreme Court justice of his time. I want to say he was a great Supreme Court justice of all time, and when you look at some of the quality of the US Supreme Court now, just extraordinary that at that particular point in time, the court was graced of someone of that unbelievable intellect. Indeed, as we shall mention in this lecture, there were perhaps two great Jewish justices, one who succeeded Brandeis some years later, which of course was Felix Frankfurter, who himself deserves the full lecture at Lockdown University, and I will arrange that with Trudy, but Brandeis, as indicated, gone to Harvard from Louisville, Kentucky, where he was, at that time, in a sense, on record, the greatest student they’d ever had. In fact, it was said of him that he had a photographic brain. There’s a letter from a classmate at Harvard Law School, which does deserve citation to you. It comes from a book by Mason, called “Brandeis, A Free Man’s Life,” published 1946, and it says the following about Brandeis. “Brandeis is supposed to know everything, "and to have it always in mind. "The professors listened to his opinions "with the greatest deference, "and it’s generally correct, there are traditions "of his omniscience floating through the school, "one I heard yesterday. "A man last year lost his notebook of agency lectures. "He hunted long and found nothing. "His friend said, ‘Oh, and ask Brandeis, ”'he knows everything. “'Perhaps he’ll know where your book is?’
"He went and asked, said Brandeis, ‘Yes, ”'go into the auditor’s room, “'and look on the west side of the room ”'on the sill of the second window, “'and you will find your book,’ and it was so.” So, Brandeis had this reputation of just an extraordinary intellect. In 1890, I’ll give you an example, he entered private practise, and published an article with his mate, who we just spoken about, in which they wrote about the right to privacy in the Harvard Law Review. It’s one of the most famous articles written in American jurisprudence, and I think, if I’m right, until for about 50 years, it was by far and away, the Brandeis-Warren article was by far and away the most cited article in all of US legal writing. So, we are talking about someone who is quite considerable. I want, if I may, however, to concentrate on four issues with regard to Brandeis in this talk. Firstly, in no order of preference, although I think from a purpose of a lecture, it’s perhaps logical to do it in this way. The first, of course, is to talk about his commitment to free speech. The second is to talk about privacy, and the way he defined that. Thirdly, is to talk about his role in the development of antitrust or competition law, and fourthly, I want to talk about his Zionism, and, you know, in so many ways, therefore, I look at Brandeis as somebody, I think, being a judge myself for the quarter of a century, and thinking, gee, he’s this sort of chap I would’ve really liked to have been, but you have to have had the sort of exceptional talent that he had to get to that level. Now, before he became a judge of the United States Supreme Court in June, 1916, of course, he had made a major name for himself as the People’s Lawyer, a lawyer who took cases on behalf of individuals, a lawyer who took cases on behalf of small individuals against large corporations. Brandeis was, in many ways, if you wish, a forerunner to public interest lawyers. That is, to those people who take cases on behalf of poorer, Indigenous people, which have a fundamental implication for law for the society as held. That wasn’t to say that he wasn’t successful.
By the turn of the century, he was earning $50,000 a year, an immense amount of money at that time, which made him extremely successful, and which allowed him to take on cases of this kind. There is, as a result of this, one particularly important component of the Brandeis history, which lives with us today, and those of you who lawyers on this group, and I, one of the things I’ve learned over the years of Lockdown University is to never underestimate the audience we speak to, because although we never have the opportunity of seeing you in the flesh, as it were, from the questions that I always have posed to me, just obvious that there are all sorts of people who know a lot more about my topic than I do. So, many of you are lawyers will know that there’s a concept called the Brandeis brief. It was a revolutionary instrument brought about by Louis Brandeis when he was actually a lawyer, a barrister, if you wish. In a case in 1908, famous case called Muller v. Oregon, Brandeis marshalled a massive amount of non-legal data, scientific and economic data, rather than relying only on legal analysis in his brief. And he submitted this data to the US Supreme Court, which helped him persuade the court to uphold the law, restricting the working hours of women, despite its general tendency at the time, that is the court, to strike down economic regulations which protected indigent and vulnerable workers. And the concept, therefore, of the Brandeis brief, which continues to this very day, is the possibility of putting up relevant economic and social data evidence in a brief, in, as it were, as set of affidavits, if you wish, or attachments to affidavit, which ultimately, therefore, will be considered by the court without the need for oral evidence. It’s fascinating to me that the concept of being able to confront judges with this kind of data traditionally never employed, certainly before 1908, never employed, and which became known as the Brandeis brief, has effectively percolated through the halls of courtrooms throughout the world.
To give you an example of just how important this was, and how there, almost 100 years later, we were recalling the name of Brandeis and the Brandeis brief, when in 1995, many of us lawyers were briefed to perform before, or to appear before the South African Constitutional Court to argue the constitutionality or lack thereof of the death penalty for South Africa as it emerged out of the darkness of apartheid and into the sunlight of constitutional democracy. And the idea of the Brandeis brief, of going to a court where we knew that the court was not going to hear oral evidence of experts, but that it might be prepared to read a set of data which indicated why the death penalty was ineffective, why it discriminated against Black and poor people to an egregious extent, and why it was really ineffective in curbing the crime wave that was engulfing South Africa. All of that was submitted to the court, which it accepted, and in a sense, if you wish, the inspiration for that was Louis Brandeis. So, Brandeis, the People’s Lawyer, gets onto the court in 1916. As indicated in the clip I played for you, it took a devil of a time for him to be confirmed. He, of course, had assisted Woodrow Wilson in winning the 1912 presidential election, advising him on economic policy, and contributing to the creation of the Federal Trade Commission, to which I shall make reference presently, in which, to this day, is a very important American entity in dealing with economic power. He was nominated on January the 28th of 1916 to the US Supreme Court, the first Jew ever to be so nominated. Now, as the clip suggested, one wasn’t quite sure how much antisemitism, and how much opposition by large corporations played a role in this, but it took this incredible amount of time, so, 120 odd days before Senate was prepared to confirm Brandeis by 47 to 22.
And then four days later, he took the oath, and he became a judge of the US Supreme Court, and then became, as it were, one of the most important judges, together with Justices Benjamin Cardozo, who himself also deserves a lecture all on his own, and of course, we know about the Cardozo Law School in New York, and Justice Harlan Fiske Stone. Brandeis was regarded as one of the three Liberal Musketeers on the court, opposing a conservative block known as the Four Horsemen. Like the other Musketeers, Brandeis generally voted in favour of Roosevelt’s New Deal legislation, and similar economic regulations. It’s interesting that when he retired from the court in February the 13th, 1939, he was replaced by Justice William O. Douglas, who himself carried on a similar tradition in relation to the key issues to which I’m now going to make reference. So, I said to you, and I promised you that I will talk to you about Brandeis’ enduring relevance. The first is in free speech jurisprudence. In a case called Schenck v. the United States, a couple of years after Brandeis joined the court, he, together with Justice Oliver Wendell Holmes, argued that in wartime, speech could be suppressed if it provided a clear and present danger to a government interest, but some years later, in a case called Abrams v. United States, where Holmes articulated a more speech-protective position, arguing that ideas should be freely disseminated to see which ones could win out in the market of ideas, this was a further call to Brandeis to support that particular position, and then came the famous case of Whitney v. California. Because Brandeis believed in a democracy, the most important position was that of citizen, but in order for a person to enjoy the benefits of free society, he should have to meet certain responsibilities.
These civic responsibilities were basically obligations involving making informed decisions on matters of public policy by participating in governmental actions, such as testifying at legislative hearings, and by voting, but “In order to vote, you had to make "an informed judgement ,” said Justice Brandeis, in relation to candidate or programme, and in order to do that, you’d have to have information, and this meant information all sides of an issue. Unpopular opinions, no matter how radical could not be silenced, because an informed citizen needed to know these views to evaluate them and to either accept or reject them. Free speech did not exist. So that, in his view, political philosophers could debate, but it was there to educate citizens, and central to that was the idea of an active citizenry who could make informed decisions and policies, and on candidates. And it was this version of the First Amendment, which underlies so much of the jurisprudence that followed thereof, and when I read this, when I read this, I thought to myself, wow, what’s happened to us today? You know, we are engulfed both on the right and on the left by wokeness, the idea that, you know, on the left, we’ve got a whole host of restrictions on speech, which make it incredibly difficult, as we’ve seen, for universities to pursue the exploration of truth, and on the right, we’ve got the banning of books, and the idea that certain forms of speech are not to be allowed. And I suppose this is where sort of the Judith Butlers of this world kind of meet the Ron DeSantises of this world, and ultimately, together, do exactly the opposite of what Louis Brandeis had in mind for an act of deliberate democracy.
So, when I said to you when I started this lecture, I wanted to make a case that Justice Louis Brandeis, the first Jewish-American Supreme Court justice was not just a historical curiosity, that this is not just a contribution to the notion of, well, let’s go through the sort of history of the US and have a look what happened. This is an idea that Brandeis has, as in so many of the endeavours for which he was famous, still represents perhaps the view which is still too modern, too challenging, and too demanding for us to truly grasp and vindicate. The second issue, which Brandeis was famous for, was the concept of privacy. As I said, he and Warren wrote this article in the Harvard Law Review called “The Right to Privacy,” written in 1890. I want to tell you that when I, together with my colleagues, Halton Cheadle and Nick Haysom wrote what became the first book on constitutional law in South Africa, “The Bill of Rights,” we actually went and had a look at that article, all the dusty, old Harvard Law Review of 1890, to try to understand what the right of privacy and its contours were in order to give content to our constitutional right to privacy. And this article certainly shaped the private law of privacy for 60, 70 years.
As I said, until the 1940s, it was the most cited law review article in history, but that article also coupled together with arguments that Brandeis had made before the Supreme Court as the People’s Lawyer in a case called Olmstead v. the United States, basically established a constitutional right to privacy, the right, if you wish, in layperson’s terms, to be left alone by an interfering state. I should, within reason, be allowed to do what I want without nosy parkers. Roy Olmstead had been convicted of bootlegging through evidence secured by a warrantless tap on his phones. He claimed this violated his Fourth Amendment rights, but a majority of the court said that since there had been no physical intrusion into the house, there’d been no violation of his rights. Brandeis wrote a famous dissent in this case, arguing that a phone tap did violate the Fourth Amendment, since the framers had intended that people should be secure in their houses from any form of search without a warrant. The constitution guaranteed a right to privacy, the right he declared, which was the most prized possession of civilised people. His view prevailed. Congress excluded evidence secured by a warrantless tap in federal prosecutions, and the courts in the 1960s extended this to the states, and, in short, many, many judgments followed in this regard. But perhaps the most central contribution that this made was of course, in 1965, when in the landmark decision of Griswold v. Connecticut, the court expanded the right of privacy to such an extent that some years later, that very right was used in Roe v. Wade as a central plank in ensuring the right of abortion to women in the United States of America, sadly, a right that federally is no more, no more guaranteed, as it were, thanks to recent Supreme Court jurisprudence.
I’m sure that Justice Brandeis have been horrified that in the very court in which he served in distinction for some 23 years, that the court would’ve essentially so in cavalier fashion, rejected the central right to which he made reference, and which he had developed both as a lawyer and in the case Omstead, as a justice. The third component I would like to talk about is Brandeis in the context of antitrust. Now, this is an important part. Those of you who follow these debates with regard to the economy will know that for many years, from the 1980s onwards, the major piece of legislation which had been designed to curb abuses of market power, and to render congruent economic and political power, that is, the Sherman Act, passed at the turn of the 19th, 20th century. That act had been there to ensure that large business interests could not subvert political democracy. Only in the 1980s did the Chicago School of Economics come along with the idea of efficiency, which therefore meant that antitrust lost its kind of political focus, and simply was concerned whether a price rise, or there was a diminution of supply of a product were concerned. But you see, Brandeis, who was one of the great inventors of antitrust law, both as a lawyer and as a judge, was the man who invented the phrase, the curse of bigness, and he fought concentration of economic power and its effects all his life. His whole argument was on behalf of the Federal Trade Commission, which he had inspired the Wilson administration to pass, was ultimately to regulate anti-competitive trade practises by big business.
For Brandeis, what was so important, and it’s so interesting when you think about where we are today, that for him, although the Sherman Act had vague phrases in the statutes, it was there to deal more with the concept of ethics in business, and equality, rather than efficiency, strictly. He was concerned about the small competitors, and the way they were treated in the marketplace. He saw a concentration of economic power in the hands of the few as unfairly choking of opportunity for the many. He was also concerned with social economic effects, because he considered the concentration of power to be fundamentally anti-democratic. And when you look at a case such as Citizens United passed again by a very different Supreme Court to the one that Justice Brandeis could have ever thought of, you realise just the power of these points, the notion that you could allow corporations to, in an unrestricted way, make significant contributions to political candidates. Not for nothing. It seems to me that many commentators suggest that the decision in Citizens United to essentially allow those contributions to go unfettered, as they have so today, has made a very significant difference to the fabric structure and resilience of American democracy. And I say all of this, ‘cause I’m trying to keep, to convince you just how important this Jew from Louisville, Kentucky was, not only being on the Supreme Court for 23 years, but his entire legacy. The best expression of his view was a dissenting opinion in a case called Louis Liggett v. Lee.
The Supreme Court held that Florida’s graduated tax on corporations, which increased according to the number of stores the particular corporation operated, failed the rational basis test, and thus, violated the equal protection clause of the 14th amendment of the US Constitution. Justice Brandeis dissented, arguing that the law did not create an arbitrary distinction, but rather, but rather discriminated on the reasonable basis that larger corporations constitute the greater social and political menace than smaller ones. He compared large corporations, quote, “to a Frankensteinian monster,” and he commented on large corporations’ anti-democratic nature. He wrote, “The changes thereby wrought "by increases in corporate size in the lives "of the workers, of the owners, and the general public "are so fundamental and far-reaching "as to lead scholars to compare the evolving "corporate system with the feudal system, "and to lead other men of insight and experience to assert "that this master institution of civilised life "is committing it to the rule of plutocracy.”
Here’s also what he said. In the same judge, “There is a widespread belief "that the existing unemployment is a result, "in a large part, of the gross inequality "in the distribution of wealth and income, "which giant corporations have fostered, "that by the control which the few have exerted "through giant corporations, "individual initiative and effort are being paralysed, "creative powers impaired, and human happiness lessened; "that the true prosperity of our past "comes not from big business, "but through the courage, the energy, "and the resourcefulness of small men "that only by releasing from corporate control "the faculties of the unknown many, "only by reopening to them the opportunities for leadership "can confidence in our future be restored, "and the existing misery be overcome. "And that only through participation "by the many is responsibilities "and determination of business, "can Americans secure the moral "and intellectual development which is essential "to the maintenance of liberties.” So, Justice Brandeis, right through his life, took a couple of central views. In the first place, he argued that when we talk about antitrust law and the concentration of the economy, in the hands of the few, we are effectively subverting the broader enterprise of democracy, because it allows a small bunch of plutocrats to effectively influence the entire process, and effectively, to the disadvantage of the many.
The second point was therefore that we should be less worried about efficiency than we should be about equity, and we should be about the attempt to converge economic and political democracy. His third point was that if economies are going to grow, it’s the smaller entrepreneurs who should be allowed to flourish in all sorts of manner of ways, than simply allowing a few large corporations to crush initiative, innovation, and entrepreneurship. In short, he was always in favour of the small person, and he saw antitrust law as fundamentally directed to that particular goal. Think about it today. We have, in the field of antitrust law, and I mean many of you’ll read about the Google cases, the Apple cases, the cases that take place, I see that the Supreme Court today refused to allow Echo to pursue its case against Apple further in the US Supreme Court. Not surprisingly, given the nature of that call, but if you look at antitrust law all over the world, including the United States of America, where, of course, the Federal Trade Commission and the DOJ, Department of Justice, are, in a sense, taking an entirely different view, and when the FTC’s chair is Lena Khan, who has written very much within the called, the Neo-Brandeisian School, that is, the school which, on the line of Brandeis, is seeking to curb the excessive power of large corporations which can act in an unfettered and uncontrolled way. You can see his legacy has come back.
So, when I talk about Brandeis as someone who died more than half a century ago, much more, and who left the court in 1939, you can see, I hope I’ve been able to convince you, I suggest that here was a man who had quite a lot to offer at the time, and has significantly a lot to offer to us now. You can debate with me whether antitrust should, in fact, take the direction that Brandeis advocated, but what you can’t deny is all over the world, regulators are worried about excessive inequality and concentration of economies. I doubt that that will be a subject of Davos, but it is a subject which, in a sense, is troubling regulators across the world, and the Brandeisian vision, in a readapted 21st century, is alive and well. Okay, so let me move then to the final topic that I want to touch on in relation to Brandeis, and that’s Brandeis, not the lawyer, not the judge, but Brandeis the Zionist. Now, here, I want to give you a clip to give you some feel of Louis Brandeis’ role within the Zionist movement. So, if we can have Clip Two, Lauren, that’d be great.
- Well, one of the things that’s always interested me in other scholars is why someone like Brandeis became a Zionist. He grew up in an assimilated German-Jewish family. There was very little in his parents’ background, there was very little even in his early career that brought him into large contact with the mass of Jews, so it really is not until he was in his forties, maybe even into his fifties before he really had major contact with Jews, and the one sort of latent influence that was there was his uncle who was what we would now call role model. His uncle had been a lawyer, and who turns out to have been a Zionist, and then he meets a man named Jacob de Haas, who says, “Your uncle was a noble Zionist,” and Brandeis’ ears literally perk up, and says, “Tell me more.” He began to read on it in 1913, he joins the movement 1912, 1913. He really becomes quite influential when World War I breaks out and he’s asked to head the Provisional Executive Committee.
Brandeis brought into the movement a number of American Jews who, up until this point, had really not been involved too much in the movement, but what they had in common was that they were all involved in progressive reform, as was Brandeis. In fact, Brandeis knew people like Julian Mack, and Stephen Wise, not from Jewish activities, but from their reform activities. In the long run, what was more important was he brought a certain philosophy to the movement. The leaders of the American Jewish Committee, which at that time, was the dominant organisational entity in American jury, were the lawyer, Louis Marshall, and the financier, Jacob Schiff. Marshall was a very strong-willed figure. The joke used to be that the American Jewish Committee ran on Marshall law, and both he and Schiff had very strong antipathies towards Zionism, because they believed that American Jews had achieved the status they had in the United States by foregoing the yearning to return to Palestine.
And what Brandeis did was to marry Zionism to American ideals, and his famous saying was, “To be a good American, "we must be a good Jew, "and to be a good Jew, we must be a Zionist.” In World War I, Turkey was on the side of Germany, and Turkey had owned Palestine at that time. When it became clear that Turkey would lose Palestine, Great Britain, in an effort to gain the support of worldwide Jewry, issued the Balfour Declaration, which promised a home for the Jews in Palestine after the war. Then the question arose, what kind of Jewish state would it be? Here was a chance to take what had up till now been a dream and turn it into reality. There were parades through the city, and everything, and the Pittsburgh Programme is the only statement we really have by American Zionism as to what kind of Jewish state American Zionists envision. There was a lot of pressure on Brandeis to go visit Palestine at the end of the war, and he was very, very sensitive to the idea of what the proper restraints were upon a member of the Supreme Court, but finally, he does go, and he falls in love with the country. The letters he writes back to his wife are just ecstatic. “I now understand why Jews have loved the country for this,” and of course, the settlers in Palestine, knowing all Brandeis had done, went out of their way to give him a royal welcome there.
Oh, is that it, Lauren? I forgot.
Well, one of the things
So-
That’s-
Yeah, sorry, that’s the end of the clip.
Sorry. There was a lot, it’s a longer piece, but I kind of thought I’d ration time. So, it’s really interesting to me that here was somebody where as I say, showed no real interest in Zionism for a very long period of time, and then, almost his entire life, if you will, essentially, in other words, he certainly showed little interest in Jewish affairs until the turn of the century, and then, of course, as indicated in the clip I showed you, he suddenly became active. Certainly during the first World War, having accepted the role of chairperson of the Provisional Executive Committee for General Zionist Affairs, made a major impact in the American branch of the Zionist movement, drawing into it a number of sympathisers, and improving the organisation, its finance. Of course, when he became US Supreme Court Justice in 1916, he had to resign his official position, but that didn’t stop him, and after the war, as we’ve indicated, he made a significant role heading a delegation of American Zionists to a conference in London, and of course, that’s where the difference between him and Chaim Weizmann took place about the role of the organisation and its pursuit of political activities that caused the rift between the two leaders, to which of course, Wizmann won. Brandeis withdrew from Zionist activities, although he continued to take part in economic activities relating to Eretz Israel, and he did intervene.
For example, the political matters, he appealed to President Roosevelt to oppose the British partition scheme of 1937, calling instead for the whole area of Eretz Israel become a national homeland. It’s interesting that, of course, he had a vision of this, because it was he who coined the term that to be a good American meant that local Jews should be Zionists. And in a sense, therefore, he was one of these people who thought you could… That it was central for Jews to see the idea of Israel as fundamental, but what he also saw was in Israel, which essentially, could possibly replicate his idea of a decentralised society, a society which would allow small communities to shape their lives as they wanted, and that Israel could become the sort of, if you wish, an exemplar of that particular vision of the world, which was so central to so much of his philosophy. So, in summary, Louis Brandeis, the judge for 23 years, the People’s Lawyer, who as I say, made such a significant contribution to defending people against economic power, who ultimately contributed to the Brandeis brief, who did more than most in shaping our jurisprudence with regard to privacy, with regard to freedom of expression and antitrust, and was a particular form of Zionist. how he would respond to today, I haven’t the slightest idea. He was clearly a Zionist of a particular kind, which itself was interesting, and in that sense he was a great American judge. And in that sense, we should be incredibly proud that he emerged out of an American Jewish community to make such a profound contribution to our law, and with that, I think, let me turn, if I may, to look at some of the points that you have raised in conversation, which is what I normally do at the end, and we’ll do it right now, if I can get to the first one.
Q&A and Comments:
How it says, “Brandeis created the right to privacy "for his brief in a case in photography. "The NY highest court commented on his brief "that he was correct, "but the court could not find a law supporting his position, "and pointed out that the legislature need to pass the law, "not the court. "The next session, the NY legislature "passed the first part.” Yes, that’s quite correct. Cardozo was Jewish, Brandeis and Cardozo. Of course, he died in 1938. and many years later, in honour thereof, the university’s law school, the Cardozo Law School, is named after him.
Q: “What drove…” Great question, Joel. Your question is always lovely. “What drove Wilson to nominate Brandeis in the first place?”
A: The answer to that was he’d made a significant contribution to Woodrow Wilson. He was a Republican who made significant contribution to Wilson’s economic policy. It was he who essentially believed, as I indicated, that the Federal Trade Commission, which was the commission which became central to the enforcement to the Sherman Act, and to the Clayton Act, which followed the Sherman Act, and in which, again, Brandeis played a very significant role. These were very central planks of the Wilson policy, and he was a very, very prominent, brilliant lawyer, and therefore, being both politically connected and brilliant seemed to me that for that reason more than any other, that Wilson wanted him there, and he wanted him there, because he shared his particular view precisely in relation to the question of the economic policies to which I’ve outlined.
Thank you very much, Annette, for the compliment, I’m very…
Q: “Did he go directly from being a lawyer?”
A: Yes, to the Supreme Court, yes, and of course, that’s more than possible, by the way, out of interest, although she was a solicitor general. Another distinguished Jewish judge Elena Kagan on the court now, who has graced the court with great dignity and flourishing intellectual eloquence. Although she was solicitor general, when I was at teaching at Harvard, she was the dean. She became a solicitor general, and then she went on to the court, so it’s very possible. You don’t have to be a… You don’t have to be a practise, sorry, a judge in order to get there.
Shirley says, “Brandeis’ grandson, Walter Raushenbush, "his daughter, Elizabeth’s son was my real estate "law professor at University of Wisconsin, "was Lutheran and conservative, politically conservative, "but he was very proud of his granddad.” That’s very funny, just shows you.
Ron says, “The danger of business concentration "was well recognised in the late 19th century "in the Sherman Act.” Yes, of course. Theodore Roosevelt was particularly famous for that, and there are very, very famous cases dealing, you know, with oil in the turn of the century, which was particularly important, and the whole point I’m making, Ron, in this particular regard, is that probably from the time the Sherman Act began, certainly until through the Warren Court and beyond, people actually believed that the concentration of economic power was the central position of antitrust law, that it was anti-oligarchic, if you wish, and it was only in the 1980s, with the book written by Robert Bork called “The Antitrust Paradox,” that this view changed. And whether it’s changing back is, of course, debatable. Certainly won’t change back if Donald Trump becomes the president, but in other countries, it’s certainly the wind is blowing in the other way, and that’s why it’s such an interesting thing to talk about Brandeis.
Thank you, Rita and Ruth.
“Brandeis was a son,” says Helen, “of Bohemian Jews from Prague,” yeah, and thank you very much. There’s one, I think it’s Kelvin? “This seems why capitalism is no longer working "for the consumer, "but only for the oligopolies.” Well, that’s the concern, Kelvin. The concern is that to a large degree, to a large degree, we are not focusing in the right way. We are not focusing on the profound consequences of inequality, and that the vast majority of people are essentially left for their own resources. And you could argue that Trump is exploiting that, and other autocrats are exploiting that for their own advantage, which is really deeply disturbing.
Q: Somebody says here, “I lost you for a moment. "Did I hear you mention Olmsted?”
A: Yes. No, it wasn’t the landscape architect, to the best of my knowledge. Yes, I’ve got that one about the photography and that was, of course, a particular case.
Brenda has an opinion that says, “Free speech does not give you the right "to shout fire in the crowd.” That wasn’t in, but the truth is, it’s right. That was the restriction on free speech, that of course, if free speech provides an imminent danger, such as a shouting, fire, in a crowded cinema. That’s the kind of speech that can be regulated. I think, when I spoke with David Cole, many of you may have listened to that, he’s wonderful, wonderful constitutional lawyer, American Civil Liberties Union director. You’ll know that he made a great play for how important the First Amendment is, and that yes, it’s true, there are restrictions, but the restrictions in America are far more narrow than in many other countries, including our own. No, Judge Cardoza did not, Ruthie, live to see the law school and anything, ‘cause he died in '38.
Q: Oh goodness, you’ve asked a difficult question, Paula. “Brandeis’ position on eugenics?”
A: You know, this group always amazes me. People know so much. You refer to Buck v. Bell. That is the judgement of Justice Oliver Wendell Holmes, but yes, Brandeis did concur in it, I agree, and that was the judgement which sanctioned, effectively, sterilisation for mentally incompetence and others, a judgement that, by the way, lasted for a very long time, and a judgement you may recall, those of you who listened to my lecture, when I discussed “Judgement at Nuremberg,” the film, one of the points that Stanley Kramer shrewdly put into the film script was the way in which, how dare American prosecutors moan at Nazi judges in relation to eugenics and sterilisation, when that’s precisely what Oliver Wendell Holmes sanctioned? Why Brandeis went along with that, I’ll never know, and it is certainly an extraordinary embarrassment that that particular judgement not just saw the light of day, but continued for such a long time.
Perhaps I should, I’m going to do a little bit more research to see whether I can find any reflection that Brandeis might have had about Buck v. Bell. The judgement , to a large degree, of course, is this idea of being differential to the legislature, but quite frankly, one really wonders about this in this particular case, and I think I’ve answered all the rest of the questions. Thank you very much. I hope that I’ve managed to persuade you that Justice Louis Brandeis is not just a considerable justice at his time, but his memory lives on in so many ways, both in terms of pursuit of justice, and if you wish, the pursuit of justice for the Jewish people in particular. Do have a good evening, and thank you so much for listening.