Beyond Brandeis

A picture of Louis D. Brandeis, who in 1916 was nominated by President Wilson to the Supreme Court, appeared July 3 in the New York Times over a cutline that said, “Brandeis was denounced as too liberal by the American Bar Association, business interests and former President Taft, who considered him a radical.” The Times neglected to mention that he was also denounced as too liberal by the Times itself, along with a host of right-wing elements, including The New York Sun.Such concerns triggered a ferocious confirmation fight over Brandeis, stirred partly by those opposed to the idea of a Jew on the high bench and partly by those concerned over ideology, though the political kaleidoscope was all turned around and Brandeis survived. Some opposed Brandeis over character issues. His story, in any event, offers much to think about at a time when political passions are running so high over the nature of judges and the court.One of the editors on the attack against Brandeis was C.W. Barron of the Wall Street Journal, who testified before the Senate that, as a lawyer, Brandeis had violated professional ethics by representing two sides in a case involving the United Shoe Machinery Company. “About 10 years ago Brandeis warned me to be careful in what I said about him, and I have been careful, too,” the Times quoted the great editor as saying. Barron said he kept the court records in a safe in his office and added, “I can write an editorial on Brandeis in five minutes, but I might have spent five years in verifying the facts.”Barron’s charges were only one of a number the Senate subcommittee heard before clearing Brandeis. Its report was greeted by the New York Times, on May 25, 1916, with one of its most memorable editorials. It said that if Brandeis “is to enter public life,” the “legislative hall, not the Bench of the Supreme Court, is the proper theater for the exercise of his abilities.” Brandeis, it complained, was “essentially a contender, a striver for changes and reforms that, under our system of Government, can be properly achieved only through legislation, not through the judgments of the courts.”The Times reiterated a view it had expressed earlier in the fight, that “the voice of the advocate moved to utterance in behalf of theories of social justice should be heard in the legislative hall rather than the chamber of the court,” which, the Times said, “sits not to expound on theories or doctrines but to judge of the constitutionality of the enactments which Congress may decree to those or other ends.” And then the Times issued this magnificent paragraph, which could be chiseled into the wall where judges used to hang the Ten Commandments:“The Supreme Court, by its very nature, must be a conservative body; it is the conservator of our institutions, it protects the people against the errors of their legislative servants, it is the defender of the Constitution itself. To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses. It would introduce endless confusion where order has reigned, it would tend to give force and effect to any whim or passion of the hour, to crown with success any transitory agitation engaged in by a part of the people, overriding the matured judgment of all the people as expressed in their fundamental law.”The Senate went ahead and confirmed Brandeis, and as many predicted – or feared — he emerged as a dominant figure on the court, moving it to the left on some issues. As public life brought his way the slings and arrows of the enemies of the Jews, he also emerged as an eloquent Zionist. He retired in 1939, as war was about to bring an end to the Great Depression. What a difference a generation made.“The retirement of Justice Brandeis takes from the bench of the Supreme Court one of the great judges of our times,” said the Times, declaring that the storm against him “seems almost incredible now” and that in “the respect and affection of the American people he has come to occupy a place like that reserved for Justice Holmes …” Like Holmes, the Times said, Brandeis “has regarded the Constitution as no iron straitjacket, but a garment that must fit each generation.”It quoted Brandeis as noting that the court “has often overruled its earlier decisions” because it “bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” The newspaper which only a generation ago had insisted the Court, by its very nature, must be a conservative body, now praised Brandeis for being aware that the Court “is not an abstraction but a vital force which gives direction to the pace and range of economic forces.” At the heart of its editorial was this sentence: “The Constitution is a living law.”And so we have come full circle on a Mobius strip. Now we have a Republican president often derided as a Wilsonian in foreign affairs considering the possibility, when the opening comes, of elevating to chief justice of the United States a man, in Associate Justice Scalia, who speaks of the virtues of the “dead,” or immutable, Constitution – and a Times afraid that Justice Scalia and other conservative justices will be, precisely, all too prepared to let the Legislature decide the social and transitory issues that the court had taken on in the decades after Brandeis. It’s one of the twists that history has managed to put in the blindfold of justice.

Beyond Brandeis

Beyond Brandeis

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