Transcripts For CSPAN3 Justice Brandeis Nomination 100th Anniversary 20160228

Ladies and gentlemen, welcome the president of brandeis university. [applause] ms. Lynch good evening, it brings me great pleasure to welcome everyone. Students, faculties, alum, staff, distinct panelists and friends to this remarkable gathering here at brandeis university. I want to welcome in particular some of our special guests. Massachusetts attorney general marla healy. [applause] congresswoman katherine clark. [applause] state senators michael barrett, james eldridge, and karen socha. [applause] ms. Lynch state revenues and state representatives david linsky and dave kaufman. [applause] our very own jeannette mccarthy. [applause] counselorscity Kathleen Mcmenamin and george darcy. [applause] and i want to give a very special warm welcome to a member of our audience, frank brandeis gilbert, grandson of Justice Brandeis. [applause] our centennial celebration of our namesake, Louis Brandeis, has to made possible by people too numerous to name. But i must give a special shout out to brandeis class 1957 alum Jules Bernstein and his wife, who first suggested the idea of the centennial celebration back in 2013. They got the ball rolling, and from the beginning, they offer generous support, great wisdom, and practical guidance. I also want to thank the director of the International Center for ethics, justice, and public life hero brandeis, who has skillfully led the initiative and organizing committee. His knowledge and Organizational Skills have been instrumental in making this centennial a reality. President Woodrow Wilson announced the nomination of boston attorney Louis Brandeis to the u. S. Supreme court. The 59yearold brandeis wrote to his brother alfred im not exactly sure that i am to be congratulated, but i am convinced, all things considered, that i should accept. [laughter] ms. Lynch the public reaction to his announcement was swift and explosive. Former president William Howard taft denounced the nomination, calling him a muckraker. A man of infinite cunning. Andeat tenacity of purpose of much power for evil. Yes. The new york times, complained that brandeis is essentially a contender, a striver after change and reform. Yes, brandeis was rather tenacious, and he certainly was striving to reform society. As a young lawyer, he and Samuel Warren wrote in 1890 and extremely influential essay in the harvard law review the defined the right to privacy for the modern age, in response to what they called the all too enterprising press, and new technologies that could reproduce things or sounds. Later, when taking legal action to limit the number of hours that women were forced to work in certain industries, he invented a new form of argument, relying on data and evidence, not just legal theory. And the brandeis brief was born, and became a staple of american law. When the growing power of mammoth Financial Institutions threatened to overwhelm the interest of small investors, he argued eloquently for limits on the ways in which financiers could use other peoples money. Brandeis became known as the peoples attorney, for his growing practice of pro bono work in the public interest. He spoke explicitly about his commitment to social justice, an idea that he and other prominent thinkers of the progressive era brought into the public lexicon. For more than four months, the battle over brandeiss nomination made headlines across the country. Some opposition clearly had its roots in antisemitism. Brandeis was the first Jewish American to be nominated to the high court. The Senate Judiciary Committee Held weeks of hearings. But according to the tradition of the time, the nominee himself was not invited to speak on his own behalf. On june 1, 1916, brandeis was on the train from his home office his office in boston to his home in massachusetts. When the Senate Finally voted 4722 to confirm his appointment as an associate justice of the Supreme Court. As the story goes, when he arrived home, his wife, alice, met him at the door with a new greeting. Good evening, mr. Justice brandeis. He served on the Supreme Court for 23 years. Creating a legacy of brilliant and innovative jurisprudence. His dissent in old instead versus the United States, which argued for limiting the governments use of technology to spy on its own citizens continues to influence legal doctrine today. At his famous concurring opinion in whitney versus california made freedom of expression not just an active force in american life, but a constitutional principle as well. Brandeis was a champion for the dignity of all individuals, as well as a protector of active citizenship, so that all can learn and freely debate ideas. In naming our university after this great justice, we have a responsibility to live up to his legacy. To quote albert einstein, brandeis is a name that cannot be merely adopted. It is one that must be achieved. And this is something we strive to do every day here in brandeis university. Today begins a semester long celebration of the centennial, aptly called Louis Brandeis, then and now. Over the coming semester, in a variety of formats and venues, we will explore hero brandeis the ways in which Justice Brandeiss legacy continues to influence and shape american law and society. I can think of no greater tribute to honor Justice Brandeis, and this, his namesake university, then to inaugurate our celebration with Justice Ruth Bader ginsburg. [applause] ms. Lynch there are many striking parallels between Justice Brandeis and Justice Ginsburg. Justice ginsburg has dedicated her career as a litigator, judge, and justice of the Supreme Court to advancing equality under the law. Like brandeis, ginsburg has used factbased jurisprudence to advance social change. And both use their opinions and dissents to educate the public about the social conditions that affect peoples lives. But there are also key differences. When she enrolled at Harvard Law School, Ruth Bader Ginsburg was asked to justify taking a seat that could have been held by a man. She was one of only nine women in a class of over 500. After transferring to columbia law school, she graduated the top of her class. But yet, she was turned down for every job for which she applied. But as Justice Ginsburg is shown countless times, from becoming the first tenured woman on the faculty at columbia law school, to being recognized as a powerful voice on the court for equality, she is a force of nature. Underestimate her at your peril. As attorney and justice, her accomplishments are too many to cover fully here. But some include extending the constitutions equal protection guarantee to women, ending pregnancy discrimination in the workplace, assuring gender equality and Social Security benefits, and striking down discriminatory admissions practices. I think that deserves a round of applause. [applause] ms. Lynch like brandeis before her, Justice Ginsburg has written passionate dissents, which in essence say to the court and to the world, take a look at whats really going on in society, and the life circumstances people face. Thats what she did, for example, when she dissented from recent decisions striking down the heart of the Voting Rights act. And allowing Health Insurance coverage to exclude womens access to contraception. A fierce intellect, a tireless voice for equality and inclusion, Justice Ginsburg has also become something of a pop culture icon. Known as the notorious rbg, by her everexpanding fan base, which is clearly here in this room, she continues to inspire the next generation of social change agents and visionaries. At brandeis university, our motto is truth, even onto its innermost part. For this evening, i propose to temporarily revise our motto to without ruth, there is no truth. Ladies and gentlemen, please join me in welcoming the one and only, Justice Ruth Bader ginsburg. [applause] Justice Ginsburg thank you, thank you, please be seated. I so much appreciate the very warm welcome you have extended to me. And im here to talk to you for a bit about lessons i learned from Louis Brandeis. In these remarks, i will try to convey his impact on me in my years as a lawyer, and then as a judge. I will speak first, and longest, of the brandeis brief, famously filed in mueller against oregon. The Supreme Court decided that case in 1908. The court upheld as constitutional a 1903 oregon law that prohibited employment of women in industrial jobs for more than 10 hours per day. In briefs filed in the 1970s, i described the decision as an obstacle to Supreme Court recognition of the equal citizenship stature of men and women as constitutional principle. But while the decision was one i tried to undo, the method brandeis used to prevail in that case is one i admired and copied. Let me explain why i applaud his method, but not the decision he sought and gained. In 1903, oregon adopted a law putting 10 hours as the maximum workday for women employed in any mechanical establishment, factory, or laundry. Promoters of that state law, included labor reformers, who first proposed an eight hour day for all workers. When that proposal failed to gain legislative support, the proponents settled for a measure limiting the hours bluecollar women could engage in paid labor. Their hope was that a law protecting women would serve as an opening wage leading to time protection for all workers. Portland laundry owner kurt mueller insisted that laundress Amber Gotcher worked for more than 10 hours on september 4, 1905. The date had significance. It was the day the state had designated labor day, to encourage employers to give their workers holiday. The timing and emma gotchers membership in the Laundry Workers Union suggested that mueller and fellow members of the laundry Owners Association aimed to create a test case. As it turned out, they did. Oregon prosecuted her for violating the state law, after an unsuccessful defense in oregons courts, mueller asked the Supreme Court to take the case and declare the states 1903 law unconstitutional. Mueller had cause to be hopeful. In 1905, the Supreme Court had ruled 54 that new york had acted unconstitutionally when it enacted a law limiting the hours people could work from 10 today, 60 a week. According to the court, the hours limitation interfered with the right of bakery owners and bakery workers to contract freely, a liberty the court lodged in the 14th amendment. Due process clause, which reads no state shall deprive any person of life, liberty, or property without due process of the law. I was reminded of lochner, reading some decisions of the court concerning workers, consumers, credit card holders who signed agreements saying if you have a dispute with us, you can bring it only in arbitration, not in court. And you cannot use the cost the class action device. You must use your individual claim, which might be 30. And thats it. That has also been described as tied to liberty of contract. The credit card holder signing the form. The employee signing the form. Getting back to mueller, the National Consumers league, led by social reformer Florence Kelley wanted to ensure that oregon would have the best possible representation. Kellys first choice was brandeis. But the league, while kelly was out of town, had set up an appointment for kelly with a celebrated new york bar leader joseph choate. To kellys great relief, choate declined to take the case. He told kelly he saw no reason why a big, husky irish woman should not work more than 10 hours a day if she and her employer so desired. Kelly next went to boston to enlist brandeis. She was accompanied by josephine goldmark, who was brandeiss sisterinlaw. Brandeis was then aged 51, he said yes to the league, on one condition. He wanted to be oregons council, not relegated to a friend of the court role. And he wanted to argue the case orally, on the states behalf. Goldmark made that happen. Brandeis then superintended the preparation of a brief unlike any the court had seen up till up to that time. It was to be loaded with fact and spare on legal arguments. Josephine goldmark, her sister pauline, and several volunteer researchers scoured the Columbia University and new york public librarys in search of materials of the kind brandeis wanted. Facts and figures on dangers to womens health, safety, and morals from working excessive hours. And on the societal benefits of shortened hours. Data was extracted from reports of factory inspectors, physicians, trade unions, economist, and social workers. Within a month, goldmark steam goldmarks team compiled information that filled 98 pages of the 113 page brief by brandeis. To show that oregon was no outlier, that he did nothing radical, brandeis first set out the statutes of the 20 states that had restricted womens onthejob hours. He also listed similar hours laws in force in europe. His basic contention the due process right to contract for anothers labor is subject to reasonable restraints to protect health, safety, morals, and the general welfare. To convince the court, brandeis had to distinguish lochner against new york. Bakers, the court had commented in lochner, a job category overwhelmingly male, were in no sense wards of the state. Women, brandeis urged, or more susceptible than men to the maladies of industrialization, and their unique vulnerabilities warranted the states sheltering arms. The briefs pattern, after a line or two of introduction, brandeis quoted long passages from the sources goldmark and her associates had supplied. Some of those sources would hardly pass go today. For example, brandeis quoted a medical expert who reported, in the blood of women, so also in their muscles, there is more water than in those of men. Less imaginary, brandeis emphasized the effective overworking women on the general welfare. Infant mortality rises, he told the court. While the children of married working women who survive are injured by the inevitable neglect. The overwork of future mothers, he added, directly attacks the welfare of the nation. On the benefit side, brandeis stressed that shorter hours allow women to attend to their family and household responsibilities. According to a source to quoted, free time for a woman is not resting time, as it is for a man. For the working girl, on her return from the factory, there is a variety of work waiting waiting. She has room to keep clean, close to repair and clean, and besides this, she should be learning to keep house, if her future household is not to be a disorderly failure. To allay the concern that shorter hours were bad for business, brandeis accepted studies of more contemporary resonance, showing that maximum hours laws improved productivity. The briefs bottom line decades of welldocumented experience at home and abroad showed that oregons legislature had good reason to believe that public health, safety, and welfare would be advanced by limiting womens paid work to 10 hours per day. Counsel for laundry owner mueller scarcely anticipated the social and economic material the state, through brandeis, would present. But muellers brief made a point equal rights advocates of my day embraced most of the disadvantages facing women in the labor market derived from society, not biology, mueller argued. Social custom, not inferior ability, he urged, narrowed the field of their endeavor. Ostensibly, the brief continued, oregons law was framed in womens interest. But it was intended, mueller suggested, perhaps to limit and restrict womens employment, in order to give a boost to womens competitors for bluecollar jobs. Among men. The Supreme Court heard arguments in the mueller case only five days after receiving the voluminous brandeis brief. Such a short time between briefing and arguing. It would not occur today. Less than six weeks after arguments, these were days with no pcs, six weeks after arguments, the Supreme Court announced its unanimous decision, upholding oregons law. Justice brewer, who was a member of the 54 majority that invalidated new yorks maximum hours legislation in lochner authored the courts relatively short opinion. Brewer took the unusual step of technology and the copious collection of statutes and reports, domestic and foreign, in brandeiss brief. But then, he put his own spin on the materials. The justice found, in those materials, confirmation of eternal, decidedly unscientific truths about men and women. According to brewer, history shows that woman has always been dependent upon man. In the struggle for subsistence, he wrote, she is not an equal competitor with her brother. She is so constituted that she will rest upon and look to him for protection. Brewer then switched images from men as protector to man as predator. Womans physical structure and a proper discharge of her maternal functions, he wrote, justify legislation to protect her from the greed, as well as the passion, of men. Do the justices rule in organs favor oregons favor because they were impressed by the quality of the brandeis briefs, or did they hold for oregon because the brandeis brief shored up their own preconception about the relationship between the sexes, the physical superiority of man, womens inherent vulnerability, and societys interest in the wellbeing of women as actual or potential mothers. Would brandeiss technique work when social and Economic Data was inconsistent with traditional views of the way women are . And was used to challenge, not to defend sexbased classification in the law. As a law student in the late 1950s, i learned in my constitutional law class that mueller marked the first break from the courts refusal to uphold social and economic legislation attacked as invading the liberty contract once thought to be secured by the 14th amendments due process clauses. Just over a decade later, sweeping gender discrimination cases heading for the Supreme Court. I looked at it differently. The decision i appreciated was responsive to turn of the 20th. Entury conditions in 1970, as the workday for industrial workers, bill and female, shortened from 12 hours to eight, and the work week from six days to five, only womens work was in many women fromrotecting better paying jobs and opportunities for promotion. However wellintentioned, such could have a prayer perverse effect. They could and all too often did operate to protect mens jobs from women competition. In days when it carried less credibility in days when , unregulated workweeks with no overtime pay could run 72 hours or even more. In briefs and commentary, i included mueller in a trilogy of cases that bore particularly close examination for the support they appeared to give to perpetuation of the treatment of women as less than full persons within the meaning of the constitution. The other decisions in the trilogy were from 1940 eight, which upheld a michigan statute prohibited women from working as bartenders, citing moral concerns, and point against florida, which in 1961 upheld a state statute excluding women from the obligation to serve on juries, because of their place at the center of home and family life. Well equal rights advocates attacked the substance of the mueller decision, they were hugely inspired by brandeiss method. The aim of the brandeis brief was to educate the judiciary about the real world in which the laws under inspection operated. That same aim that motivated brief writers in the turning point gender discrimination cases in 1971 and nice and 73 and 1973. Reed was the first case ever which the u. S. Of Britain Court disapproved based on gender, the idaho statute was was typical. It read as between persons equally entitled to administer a decedents estate, males must be preferred to females. To federal statutes also typical of the time were involved. Both granted Fringe Benefits to married male military officers, but withheld those benefits from married female officers. The brandeis brief presented economic and social realities and justifications of protecting labor as unconstitutional. In 1970s to skirmishing cases, brandeis style briefs explained that as society involved, laws premised on womens subordinate status violated the constitutions guarantee of equal protection of the laws to all persons. The social and economic facts urged in read in french hero aimed to open jurists eyes, copying brandeiss method was useful to that end. Laws once thought to operate benignly in womens favor, keeping them off juries, relegating them to womens work in the military, for example. In time, those laws came to be seen as measures impeding womens opportunities to participate in and contribute to society based on their individual talents and capacities. Another Lesson Learned from brandeis much legislation into the 1970s was based on the premise that men were breadwinners and women, mens dependence. For example, with stephen weidenfelds wife died in childbirth, he saw the Social Security benefits that would enable him to care personally for his infant son. They were called child in care benefits, available when a wager dies with a spouse and young child surviving. If the deceased wage earner was a man, they were monthly benefits for widow in child. But if the wage earner was a woman, as paula weidenfeld was, there were no benefits for the way it were. On behalf of stephen weidenfeld, i asked the Court Essentially to write into the statute the fathers congress had left out. To convert the mothers benefits into a parent benefits. Cant be done, some of my academic colleagues told me. The court might nullify the mothers benefit, leaving it to congress to start over from scratch, but it would be out of bounds for the court, lacking the power of the purse, to order payments to widowed fathers. Thats just what the government initially argued. In the District Court, the government urged dismissal of stephen weidenfelds complaint, its clear that the government maintained that the plaintiff does not complain about what congress enacted, mothers benefit, he complains about what congress did not enact, a fathers benefit. He is therefore chosen the wrong forum for the relief he seeks, he should take his complaint to congress. That argument, had it been accepted, would have immunized from judicial review statutes that confer benefits unevenly on women only, or men only. The legislature would have the power, unchecked by the judiciary, to diminish the equal protection principle. Was my position radical . President was slim. But what there was had heft. It started with brandeis in a case decided in 1931, involving state taxation, Iowa Des Moines National Bank against benefits. Complainants in that case were a national and state bank. Their complaint i was officials tax them at a rate higher than the rate for competition four corporations income position with them. Red ice road the banks were entitled to a refund of the excess taxes, exacted from them. The petitioners rights were violated when taxes at a lower rate were competitive collected from their competitors. It made me assume that all grounds for complaint for refund would have fallen if the state had removed it by collecting the additional taxes from the favored competitors. By such collection, the petition would have been addressed. The right invoked is that equal treatment, ancestry will be attained if either their competitors taxes are increased, or their own reduced. But it is clear that a taxpayer who has been subjected to discriminatory taxation through the favoring of others in violation of federal law cannot be required themselves to assume the burden of seeking an increase of the taxes which others should have paid, nor may he be remitted to the necessity of awaiting such action by the state officials on their own initiatives. Typically clear expression from brandeiss pen. In a 1970 decision, Justice Holland followed and expanded upon Justice Brandeiss lead, explaining where a statute is defective because of under inclusion, there exist two remedial alternatives, a court may either declare it a nullity, or may extend the coverage of the statute to include those who were aggrieved by the exclusion. Thanks in part to the brandeis and holland opinions, the court saw the light and it did not nullify, instead, it extended those benefits to married female officers. In wiesenthal cometh that of nullifying benefits enjoyed by widowed mothers, it extended those same benefits to widowed fathers. In several later cases, the court followed the same path. In conjunction with the soontobe published book titled brandeis, an american profit, Jeffrey Rosen asks me about brandeiss influence on me. I spoke, of course, that the brandeis brief and the brief written in the turning point read the read case. Subconsciously, the read brief attempt to document through citation of economic, social, historical causes, the artificial barriers imposed on women by law and custom. Suppressing their aspirations and opportunities to achieve. I also spoke of brandeis as justice, his craftsmanship, sense of collegiality, ability to combine a dedication to judicial restraint with the readiness to defend civil rights and liberties when the values our constitution advances require it. Brandeis worked hard on his opinions, as evidenced by the number of drafts he composed. He cared not only about reaching the right bottomline judgments, he cared very much about writing opinions that would enlighten other people. I also admired brandeis for his determination to dissent or concur separately only when he felt the public really needed to hear his separate views. A book published in 1957 compiling brandeis is unpublished opinions. Not many jurists, i observed, would go through the hard labor of writing an opinion, then step back and ask is this opinion really needed . Is the sense his defense were all the more notable because of his restraint. Brandeiss views could change when information and experience showed his initial judgment was not right. In the 1880s, he posed that she opposed extended suffrage to women. Men were doing well enough in conducting the nations, he thought, and they had obligations women escape. Military service, for example. He mightve added jury duty. By the 1910s, however, brandeis had become an Ardent Supporter of votes for women. Perhaps it was the influence of his wife, and a daughter who took a year off between college and law school to campaign for womens suffrage. Perhaps it was the able women he encountered among his social reformer friends jane addams, Florence Kelley, his sisterinlaw, and a number of others. Voting was a citizens right, he recognized. It was also a citizens obligation. No class or section of the community is so wise or just, he came to see, that it can safely be trusted to govern without the participation of other classes or sections. What of interpretive approach . Brandeis is interpretation of statutes placed him higher among jurists who interpret legal text sensibly, answered. He was certainly not an admirer of what was once called Legal Practices in, which seems to me similar to todays original is in. As an example, i mentioned the doomed 2015 health care decision, brandeis, have no doubt, would agreed with the majoritys decision to salvage, not destroy, the Affordable Care act. He would not say, as the disinterested, that because the act use the words exchanges established by the state, the text must be interpreted in a way that would undermine the entire act. One could not attribute to a responsible member of congress and outcome so bizarre. I ventured that brandeis would have deplored the course 2010 in Citizens United. [applause] the courts 2010 in Citizens United. [applause] Justice Ginsburg he pointed out in 1933 that legislatures throughout the 19th and early 20th century had imposed a host of restrictions designed to ensure that the corporate form would not threaten the quality of opportunity and the autonomy of individuals. When brandeis retired in 1939, after 23 years of distinguished service on the Supreme Court, he had written 448 opinions of the court. And published 10 concurring opinions and 64 dissenting opinions. It is fitting, i hope you agree, to include these remarks with the appraisal of his work by his colleagues, expressed in their farewell letter. Your long practical experience and intimate knowledge of affairs, the wide range of your researches, and your grasp of the most difficult problems, together with your power of analysis and your thoroughness in exposition have made your judicial career one of extraordinary distinction and farreaching influence. That influence, i can attest, continues to this day. Thank you. [applause] ms. Lynch Justice Ginsburg, thank you for your inspiring remarks. What a terrific way to start our examination of Louis Brandeis, then and now. Im happy to know the Justice Ginsburg will return to our stage and join our panel in the later in our discussion. Now, its my great pleasure to welcome back to campus, former president frederick m lawrence. [applause] if you looks a little relaxed, is because he is currently on sabbatical at yale law school. While president , he often talked with students about the inspiring legacy, especially about the role of the citizen and the democracy. As brandeisian, we debate, we discuss, and we practice the art of dissension all the time. So it is fitting that fred lawrence, a noted scholar, teacher, an attorney, dedicated to understanding and advancing freedom of expression, is our moderator for this evenings Panel Discussion entitled Louis Brandeis, the Supreme Court, and american democracy. Please join me in welcoming fred lawrence. [applause] mr. Lawrence thank you, lisa. And good evening to all. I hope the Justice Ginsburg backstage, where she is getting some welldeserved time to sit down, i can hear me if i share some thoughts in response to a question i always ask, which is what would louis say . Im quite sure that were Justice Brandeis with us now, he would be known as the inventory us the notorious lbb . What would he say about the torillas the notorious rbg . They have much in common, theyve transformed the practice of law. They are two who have seen law as an engine of social change and a core piece of american democracy. We brandeis, of course, was the first Jewish American to serve in the United States of record, nominated 100 years ago today in 1916. Justice ginsburg, the first Jewish American woman on the court, nominated and confirmed in 1993. I would note that if my written to his right, she will pass Justice Brandeiss record for service on the court on the 20th of april, the spring. [applause] mr. Lawrence that would make her, for those who keep track of such things and that there are a few of us who do, that would make her 35th on the list of the court, and years of service to read if we were to invoke upon the notorious rbg, the classic lawyers wish and blessing, which in latin is [speaking latin] that she should live to 120. And she will smash the record of service. So what would the notorious lbb say about the notorious rgb, he would take enormous pride that the institution that bears his name baird upon her an honorary doctorate. She is in fact an alumnus of brandeis university. You might say to Justice Ginsburg, welcome home. [applause] mr. Lawrence indeed, if i may be permitted a moment of personal privilege, he might say that to both of us. [applause] mr. Lawrence now, our panel tonight is the next ordinarily Distinct Group who will distinguished group who will discuss Louis Brandeis, that i now, and his contributions to law and democracy. The pieces of his life and work that continue to resonate still. I will introduce them to you briefly tell and the owner in which i last them to respond to the first question, which will be one example, and there are so many. One example, briefly, of how brandeiss work still resonates in the development of american law and american democracy. Chief Justice Ralph dance ralph ganse. He was the chief justice of the massachusetts supreme judicial court, served on the superior court when governor Deval Patrick appointed him, and elevated him to chief justice in 2014. Before that he was an assistant u. S. Attorney in massachusetts. You will see that the repeating theme, assistant u. S. Attorney, here on this panel. He has taught at a number of very law schools and to bring back home, the last time yet i were in this building together he was on inauguration. You onerous by your presence tonight. You honor us by your presence tonight. A former chief judge judge of the district of massachusetts court, a former president , i can say being a chief judge is a former chief judge, thats a really great thing. Judge wolf was appointed to the district of massachusetts bench as the United States District Court judge in 1985, which i believe may shoot a senior judge, makes you the senior judge. His cases involve organized crime and fbi corruption on many, many others. Job wolf judge wolf served with great distention in the department of justice. He has taken senior status in International Focus in his work, and is a good personal friend of this university. We welcome home in distinct member of the class of 1965. A distinguished member of the class of 1965. A senior scholar at Woodrow Wilson, distinct author on a number of topics distinguished author on a number of topics. Welcome home. [applause] mr. Lawrence last, but certainly not least, a former ausa of the Eastern District of new york. Those of us who served in the Southern District no about the rivalry between our two offices. The main reason the rivalry was so intense was that no one else in the country could possible to get seriously. Jeff is the senior legal analyst for cnn, staff writer for the new yorker on law, and the author for multiple books on law, including inside the secret world of the Supreme Court. Many academics and teachers here tonight, you have taught millions. You onerous you honor us by your presence. [applause] mr. Lawrence so lady and gentleman, lets get started. Just askance justice gants, i will ask you for your contribution from Justice Brandeis that still resonates today. Justice gants im going to discuss brandeis as attorney, which he was for the first 59 years of his life. As an attorney, Louis Brandeis reshaped the vision of what it meant to be a lawyer with a social conscience. Any challenge the predominant vision of the lawyer in his day, and frankly, in our day. It was not the first person to invent the idea that lawyers do free legal work, will be called pro bono work. But i think its fair to say that he was an uber pro bono attorney. He described his commitment to pro bono in a way i find to be quite terrific. He wrote some men by diamonds or rare works of art. Others delight in automobiles and yachts. My luxury is to invest my surplus effort beyond that required for the proper support of my family to the pleasure of taking up a problem and solving or helping to solve it for the people, without receiving any compensation. I have only one life, and it was short enough. Why waste it on things i dont want most . I dont want money or property most, i want to be free. By 1910, when brandeis was 54 years old, he devoted virtually all of his time to pro bono work. Doing mostly what we would now call impact litigation or impact projects. He wrote the brandeis brief in mueller that was described earlier by Justice Ginsburg, and he wrote that for free. He fought what was then called boston elevators attempt to obtain a monopoly with the streetcars and subway in boston. He battled utilities over ratesetting. He challenge the Insurance Companies by helping to create savings bank in Life Insurance to create lowcost insurance for working families. Why did he do this . He did it, i think, for two reasons. First, he took great joy in solving problems. He would often say when he was retained by one side, he says why dont you make me the counsel to the situation . Often, he would serve that we now call a mediator. He would essentially address both sides and attempt to strike a balance between competing claims, and he would work out an equitable solution. We need more lawyers will be a council to the situation. We also saw an increase to the income in the 20th century. Its the excesses of wealth were not restrained by law, capitalism itself would be destroyed by populist anger. Sound familiar . In 1905, in a speech he gave, he said our country is after all, not a country of dollars, but ballots. The immense corporate wealth will necessarily develop a hostility for which much trouble will come to us. Unless the excesses of r curbed the immense corporate wealth will necessarily develop a hostility for which much trouble will come to us. Unless the excesses of r curbed due respect for law, as the excesses of democracy worker 75 curbed 75 years ago, referring to jacksonian democracy. There will comparable to the people against the capitalist unless the aspirations of the people are given adequate legal expression. He noted that corporations have lawyers of the public did not. And when they did, those lawyers were not very good. He said we hear much of the corporation lawyer, and far too little of the peoples lawyer. So he became the peoples lawyer. [applause] mr. Lawrence judge wolf, an example. Judge wolf i would say an example of one of Justice Brandeiss greatest contributions to democracy is fierce dedication to combat corruption, giving integrity to the rule of law. As we discussed as we planned the panel, i admired Justice Brandeiss capacity for growth. It was an growth or change the came from going to the library or reading in the serenity of his chambers, but from interacting with a very wide range of people. Justice Louis Brandeis had no particular jewish identity before 1910. He was probably the only member of the polo club. He was a great mediator. He was called upon to mediate a Garment Workers Strike in new york which had jewish people as the employers, jewish people fitting a very different profile. Perhaps literally my grandmother doing the work. He was impressed by both sides of this dispute and he became proudly and publicly a jew. That is in 1910. In 1914, he became the president , the head of the american scientist organization, and was vying to be leading the International Zionist organization. He envisioned it as a place where perhaps the paraclete and ideals or a clean ideals could be achieved. Brandeis is reputed to have the highest grades of any student at the Harvard Law School in the 19th century. When he graduated, he formed a firm with a and represented the widest range of powerful interests. One of them was the Department Store on washington street. I will conflate things a little bit. There were a series of matters that the chief justice alluded to. The merchants downtown learned of a covert effort by the boston Elevator Company and others to get a very long time monopoly to build the subway, first under Boston Common and in under washington street, that would guarantee them guarantee that the fair would never be less than five cents for any trip. This was a great concern to him and his colleague because five cents was a lot of money then. They were afraid people would not come downtown and shop. They put their formidable and brilliant lawyer on the case. He filed a variety of corruption, including legislators who using the Transit Authority for patronage and would not oppose it because it provided jobs, perhaps an enduring tradition in massachusetts. The lawyer from the elevated came into the legislature, and it and not giving any advance notice of his arguments, said if we do not get these terms, our company will fail. Brandeis was the master of facts and he knew the Elevator Company had increased its dividend the year before and was making a lot of money. He was able to recite those facts quickly and defeat the legislation and keep what should be a public resource, a Public Service in the public. This led him to be a passionate opponent of municipal corruption. In 1903, before he was iconic, a young man named James Michael curley was convicted of fraud and on his way to prison, and he was a candidate. He said, think of the effrontery of this man, james s. Curley, standing before the people of boston as nominee of a great clinical party, before he was convicted of the crime of conspiracy. The waste and theft of public moneys which results from having such man in office is bad enough. 100 times worse is the demoralization of our people which results. Nothing breeds faster than corruption. Every criminal in the Public Service is a plague spot spreading contagion on every hand. Think what a heritage leads to your children the corruption has allowed the stock unstated, the ships which carry the product of our rich countrys other lands comeback freighted with thousands of men and women and children who flee from the oppression or hopelessness of their old homes. Should we permit these, our fellow citizens, perhaps our future readers to be taught that in boston liberty means license to loot the public treasury . The poet William Blake said that honest indignation is the voice of god. I think in that quote you see why brandeis was regarded as a hebrew bible profit, often called isaiah. In 1910 he took this fight against corruption to washington. William howard taft was the president. Richard ballenger was the secretary of the interior. Ballenger quite covertly transferred 5000 acres of timber and oil land to the Guggenheim Morgan interest. The great conversationalists under Teddy Roosevelt expose this, colliers magazine publicize this and created a great controversy as to whether ballenger acted corruptly. I find that mr. Ballenger has acted quite properly. There were congressional investigations. Brandeis by meticulously putting together facts in the Public Record demonstrated that they were grisham fourpage memo was backdated. Ballenger headlight. Wickersham had lied. This makes it not surprising that taft and wickersham were these virulent opponents of brandeis when he was nominated. Also among his opponents where the powerful interests in boston who felt that brandeis, originally their lawyer, had not just beaten them, but betrayed them. Coming to brandeis defense was his protege, young Harvard Law School professor Felix Frankfurter who wrote in the new republic, in response to these passionate allegations that brandeis was unethical and lack to judicial temperament, frankfurter wrote, it is said of mr. Brandeis that he is often not amiable in the fight. There is truth in that statement. The issues he has still to with have been great moral questions. It is often thought with great severity he is rarely lost. His great fights have been undertaken in the public interest. That remains a muchneeded and inspiring model. Brandeis often said, we must struggle in each generation to possess what we have inherited. That is why i say Justice Brandeis ferocious dedication in battling corruption is one of his most valuable contributions to democracy. [applause] extraordinary that both of you have been talking about Justice Brandeis before his appointment to the court. All the stories are at least a century old and yet they have a freshness and currency that speaks to our situation today. Those of you who saw me shuffling papers while Justice Ginsburg was speaking, i wasnt being rude. I have a hearing disability, and she knows that. She braced she graciously brought a copy for me to read, knowing i would not be able to hear much of what she said. Let me pick up the notion of brandeis as a democrat. One of his colleagues called brandeis and implacable democrat. Related to that was one of the lines that brandeis writes, this, its a line from arnold. Life is not a having and they getting, but a being and becoming. That ties in with what you are saying about his ability to change. But what he wanted was a society where every person could concentrate on a being and a becoming. In other words, to brandeis, democracy was not in end. Democracy was a process. And the process was meant to do what he felt was incredibly important, create the conditions by which human beings had a chance for selffulfillment, had a chance to bring out the best in themselves, had a chance to work at something that was meaningful to them. In order to do that, societal conditions had to permit them to exploit their capabilities. Societal conditions changed very as speakers have emphasized, it was necessary for the law in a democracy to change as societal conditions changed, and as the people had to adapt themselves to new societal conditions. But what the people wanted out of every new societal condition was something that the lawmakers had to ascertain. More than that, the people themselves had to decide what it was that they wanted, what Public Policy did they want, what kind of laws did they want. The only way for them to know that according to Justice Brandeis was to constantly educate themselves. And by education, he did not mean going to school. He meant to reading constantly, he meant talking to other people to get their ideas. To him, the most important thing about the right to speech was not actually the right to speak, but the right to hear. He felt strongly that if every citizen did not have the opportunity to hear all of the ideas out there in society, then that citizen would not able to function as he or she should have been able to as a member of a democratic society. Active citizen participation in the process of democracy is absolutely crucial to brandeis. He emphasized speech. He wrote the greatest statement about the relationship between speech and democracy. The reason for it was that you, the citizen, we, the citizens, here all ideas to participate. The worst thing for him and a democracy would have been stifling speech. Thats really what i think about when i think about brandeis as a democrat. [applause] i ask you to bat cleanup. I thought we would have a number of ideas. Heres what i thought about what Justice Brandeis said that has always been resonant to me. He lived from the civil war to world war ii. A little more than 80 years, which is one of the most extraordinary periods of change in the history of any country anywhere. If you were 80 years old at the time of the civil war, the world you grew up in was not hugely different from the world that you lived in at that point. If you were born during world war ii and live to be 80, you said cars and trains and planes, but if you were born in the civil war at a time when everybody travels by horse and buggy, you saw the most room at a change certainly in this country and may be. I think Justice Brandeis career as a lawyer and judge is the story of his response to the Industrial Revolution and what was going on in the United States. I think he was at his best when he was looking forward to the world that was becoming, and less than his best when he was looking back and trying to recreate a world that was vanished. And, in terms of looking forward, he is associated with the idea of factual inquiry to address the problems that exist in the world. The famous brandeis brief is about how the government can address peoples problems in a practical way. It is a departure from the formalistic rules that govern law through much of the previous time. I mention also, the Supreme Court im glad Justice Ginsburg isnt here when i say this, but the Supreme Court during most of Justice Brandei life, was a miserable, awful institution. [inaudible] i knew she was listening. It was a horrible institution that got almost everything wrong. From the death of chief Justice Marshall in 1829 until the early years of the new deal, the Supreme Court was a terrible institution dedicated to the worst of american life, whether it was the dress got decision in 1857 or plessy versus ferguson in 1896 or lochner in 1905 everything they did was wrong. The idea that you could look to the court as a source of salvation was not something that a progressive could do. He was someone who believed in legislation, and one reason he was so associated with the idea of judicial restraint as a judge was, he knew the courts got everything wrong. It was better to let the legislative process proceed. That was the forwardlooking Justice Brandeis. The backward looking Justice Brandeis was the one who had an almost pathological fear of bigness. He was someone who felt that big companies, big governments were always wrong. He was someone who believed a great deal in states rights. I think as the country became more industrialized, he failed to recognize that he needed bigger institutions to control what was going on in the company, and i think the architects of the new deal recognize that more than he did. The other subject where i think he did more looking backwards than he might have is particularly in his famous but more famous than red article, the right to privacy, which he cowrote in the harvard law review, a diatribe against the press for bothering rich people. I dont have a great deal of sympathy for that position, the idea that the right to be left alone from the press is one of the salient rights guaranteed by the constitution. I dont think thats the case. The famous dissent that he and holmes wrote after world war i established this libertarian ideal of the First Amendment, that the marketplace of ideas, which is holmes phrase, is consistent with brandeis view that the best thing the government could do is let all speech flourish, and that would lead to the best results. People would make a reasoned judgment from all the voices they heard and then make the right decisions for society. It would not matter who had the loudest voice, it would only be the best voices that would triumph. He did not anticipate the campaign. [applause] the trump campaign. [applause] i think if i can disagree with Justice Ginsburg a little, im not sure it didnt need Citizens United. If you believe the government should withdraw from the field of any sort of speech regulation, then you do let the Koch Brothers spend whatever they want for the Political Goals they shared. Thats what i think. [applause] having invoked our keynote speaker a number of times, we should invite her back to the stage for a few last questions. [applause] im going to pick up where jeff left off. If someone is a hero like brandeis, there is a tendency to read him into whatever position we would want to have in the present. But i think at the risk of playing the almost impossible game, what would Louis Brandeis do 100 years later, is to refract his views through into the present and particularly with respect to technology and how technology has changed so many different ways of how we communicate and how amalgam of wealth is possible in a different way, and ask if each of you has some thoughts as to whether or not he remains the libertarian in a world that has the potential for concentrations of wealth that even he could not have imagined, or, does he understand that private bigness requires public bigness to deal with it . We dont get to leave it unresolved 100 years later. What are thoughts on how brandeis might wrestle with that . I will give you the chance to do what Louis Brandeis a thinker, Louis Brandeis the lawyer, or Louis Brandeis the justice. Jeff said he did actually tracked as the passive virtues in the way we tend to forget about. I think Justice Ginsburgs apps reflection of the sheer number of opinions he wrote but did not publish, which is astounding. I will let that sink in for a second before we move on. Brandeis looking at the world today and seeing great collections of private power does he remain a libertarian who thinks the government ought not to limit that, or does he see that public bigness is needed to combat private bigness . Justice ginsburg he was quite explicit about the need to control corporations. Is not corporations that are spending all that money, its individuals. Citizens united is often misconstrued. People think it has given corporations a license to spend the money. Corporations have spent almost no money since Citizens United. The problem with Citizens United is that it has given individuals and unlimited ability to spend whatever they want on political expenditures. The question still stands, but private bigness as i have described it not just meaning Corporate Private agnes, but concentrations of wealth bigness, but concentrations of wealth. One of the most admirable characters characteristics of brandeis capacity for growth is based on learning and experience. I think the problem with felix was that he was trying to be Louis Brandeis. Something like Citizens United implicates three things that brandeis felt strongly about, speech, but also judicial restraint, deference to legislation, and the effective operation, of democracy. Substantial deference was due to the congress and the president who share responsibility for constitutional interpretation. Two, democracy requires that everybody be able to effectively participate. If Something Big was essentially drowning out other voices or overwhelming them, i think judicial restraint and wanting to keep the political process relatively fair would trump what we look back on as his great commitment, almost unqualified commitment to free speech. Justice ginsburg its always dangerous to ask what brandeis would have said about anything when this was a man who said, you have to respond to these societal necessities of this moment. I am wrestling right now with the question of, what would brandeis with his emphasis on speech think about the problems presented by the internet, like Cyber Bullying and terrorist recruitment . I cannot say what brandeis would have said because how could he possibly imagine those things . I think Justice Ginsburg hit on one of the areas where we can say we can be reasonably sure what Justice Brandeis would say. And that is, the power of big corporations in the United States, the one thing he was against more than anything else was overly Large Businesses and the power they would have, the evil they would do in the political process. That was his concern. What he would say is, whether a governmental or economic entity, it is so big that the man at the top doesnt know what everybody is doing, then it is not too big to fail . No. We should not have anything too big to fail. Its exactly the problem with huge corporations, that they can participate in the political process in a way that negates the voice of the individual. I think we can say with Citizens United, we dont know whether he would be rolling in his grave today, but i think he would be extraordinarily distressed about the limitations on individual voices in the political process as exemplified by Citizens United. [applause] Justice Ginsburg times are different. But what we do know is that brandeis was able to change. He was able to see that his initial thinking was wrong, and that was true of zionism, and it was true of the suffrage movement. I think because we have no way a projecting what he would do if he was here, but we do know that he was somebody who listened and learned throughout his life. I speak to Justice Brandeis every day because his portrait hangs behind my desk. I do most of the talking. [laughter] does he talk back . On the advice of counsel, i will not answer that. When i tell you hes talking back to me, that should make you nervous. One, i am confident that when questions emerge as to the constitutionality of the search of a cell phone, im quite confident Justice Brandeis would not ask what James Madison thought about the use of a cell phone. I am equally confident that with regard to what jeffrey has said with regard to big business, i think it is important that the power of big business in 1905 was not because they were providing substantial amounts of money to fund campaigns. The power of big business came because they were paying legislators both directly and through patronage. That was the means by which big business and there was enormous business. The names mentioned today are all museums in new york. Theres a reason there is an enormous concentration of wealth, which we are once again reaching in this nation and this world. It was a different form of control. Today the form of control is not so much direct payoffs to politicians and hopefully in many states not the direct use of patronage that is the enormous power to control the airwaves to huge amounts of contributions. In regards to what you said about James Madison, and Justice Ginsburg made this point in passing, but i think its an important point, there is a very Popular School of constitutional interpretation called original is him, which means the constitutionalism was frozen and amber in 1787 and we should ask James Madison what he thinks about cell phones and we will have all the answers to our questions. Both explicitly in terms of what Justice Brandeis wrote in his opinion, but also just the example of his life, he was not someone who believe the constitution was frozen in amber. He believed that all laws, including the constitution, had to respond to what was going on in the real world at this moment. Justice brandeis is a wonderful recruit to the cause of a living constitution, and someone who always spoke about how the constitution had to respond to what was going on in the United States at the time. Let me raise a slightly different take on some of the issues you been talking about. This is a conversation that will go on throughout the semester and i daresay throughout the next century. There will be those who gathered for the 200th anniversary. Thats not our problem tonight. Justice brandeis, before he is reborn as a libertarian on free expression, he and Justice Holmes are what most of us would call the wrong side of the First Amendment cases, a trio of cases in 1919, the abrams case, where the clear and present danger test is born as a justification for what we would call repression. Danger would sound to clear and to present. He ultimately would be responsible for unpacking and setting the seeds for a different, more progressive jurisprudence and free expression. Those cases in 1919 are in the context that is very present and speaks directly to us today. Whether we thought those were real threats are not in 1919, there were those who thought they were real then. Similar issues come up now. What thoughts do any or each of you have about how Justice Brandeis might speak to us today about the present role that issues of National Security play in constitutional rights, both with respect to free speech, free expression, or privacy, for that matter, rights to ones own information, ones own email, as opposed to the governments right to protect National Security, to invade some of those areas. Mark, ive never known you to hold back. I was trying. Basically no, seriously. Towards the end of world war ii, before world war i, people often, immigrants were being prosecuted for example, for advocating that others resist the draft. That this is the real context of the case. Is that criminal, does it present the clear and present danger brandeis very early in his career as a judge, a justice i wonder whether he wouldve come to the same decision maybe 15 years later, but the cautionary note for me is, when we get to areas of National Security, theres a tendency to give great deference to the executive. They have intelligence its not a blind intelligence. Its not a blind check. Even now, particularly 10 years ago, judges were victims of an effort to intimidate as journalists were, as members of congress were. You are engaging in treason, endangering the nation, if you try to limit the executive. I think we judges should be reminded that even the most venerable of our predecessors in retrospect deferred too much, and that we should while recognizing the importance of the stations and the relative roles between judiciary and the executive in congress, when it comes to matters like speech, when it comes to matters fundamental to democracy, we should not differ too much. Even when there is great concern about threats to our nation, our perceived existential threat. Justice ginsburg it has been true throughout the history of the United States. We have made some dreadful mistakes. Think about the interment of the japaneseamericans in world war ii, that overreaction. That was not even a law passed by congress, it was an executive order. Big supporter was earl warren. The Supreme Court got into the act later. Theres an important exception to what Justice Ginsburg was pointing at, which was what the court did about guantanamo. At a time when there was deep and reasonable concern about terrorism in the United States in the aftermath of 9 11, the Supreme Court on three occasions said to the bush administration, we have perhaps the most despised people on earth, the detainees in guantanamo said, you cant treat them that badly. I never hesitate to be critical of the court. When you look at how the court responded to National Security crises in the past, whether its world war i or world war ii, the court really covered itself of glory when it came through the response after 9 11. [applause] the discussion of brandeis ties together brandeis homes. What is wonderful about your reference to their change in the vision of free speech is that it is a classic change in the originalist vision to the expansionist vision. The original vision of the founders was that free speech went only prior restraint, and that is what homes and brandeis initially understood, you cant prevent speech from being spoken through prior restraint but its ok to punish people who think things you do not wish. Over the course of time, they observe how that in practice was being carried out. It goes to homes statement that the life of logic is not law, that experience. They experience the consequence of that vision of the First Amendment and over the course of time, when some of their friends were being punished for their speech, including friends at Harvard Law School, then their vision of what it meant to have a First Amendment changed. Part of what occurred at guantanamo was a recognition of what the experience was of the absence of habeas corpus, because it turned out that for a fair number of those folks at guantanamo, there was no there there. The experience of the risk of injustice was something that the u. S. Supreme court recognized as demonstrating the importance of having some Legal Recourse in the court for what may be an abuse of power. One thing that changed the question a little bit, i think you really cant answer the question of what would brandeis say, that you can answer the question of what principles guided brandeis, and how do we apply those in the problems we are looking at today. Then i think we can learn a lot from them. [applause] one of the things that has come through all our discussion is the freshness i know shes behind me. I have pretty good vision. We have been doing this for years. Theres a freshness to brandeis. With all due respect to holmes, one feels that one is taking a check to the jurisprudence museum. With brandeis, there is a freshness that continues to speak to us. We each have a favorite brandeis quote. One of my favorites associated with it, and ice challenged us when he said, if we are to be guided by the light of reason, we must let our minds be bold. I think he meant that not in a lightweight at all. He understood that to let our minds be bold is a challenging and sometimes uncomfortable exercise. It is willing to go places we are not sure that we are comfortable going. He understood that better than just about anyone being born of the civil war and living all the way through the second world war. We have launched an important discussion of letting our minds be bold. My fellow panelists have done a spend the a splendid job of keeping us led by the light of reason. Thank you. [applause] thank you. That was a wonderful way to bring this fascinating discussion to close. This concludes our program. I have one request for you. If you could remain in your seats until the panel has left the stage, but in the meanwhile, join me now in another round of applause for Justice Ginsburg and our distinguished panel. [applause] [captioning performed by the national captioning institute] [captions Copyright National cable satellite corp. 2016] you are watching American History tv, 48 hours of programming every weekend on cspan 3. Forow us on twitter information on our schedule and to keep up with the latest history news. This is the hardest problem i have seen in government because forimplicates americas gift innovation, implicates privacy, public safety. And we have to talk about and understand how do we optimize both the things we care about . Privacy and safety. How do we do that . It is not easy. Monday on the communicators, the general counsel counsel for the Fbi Agents Association and Vice President for policy at the center for democracy and technology will discuss the conflict between fbi and apple and whether apple should help the fbi get into the phone of one of the suspected San Bernardino terrorists. We will talk about what this case could mean for communications, Tech Companies and law enforcement. Joined by a reuters Cyber Security reporter. The tool is a device that is designed to be impenetrable. We believe itt, threatens the way that our search and seizure laws were designed to operate. Searches undere a lawful warrant can obtain access to evidence. We do view it as a real threat. With the fulcrum of the balance of privacy and security sits on. Apple is concerned and we are concerned about the privacy of the information on the device, but we are very much worried that building any tool that allows you to break the security on the device is really a privacy harm, one that is going to come back and bite apple users around the world. Watch monday night at 8 00 eastern on cspan 2. Every election cycle were remind us how important it is for citizens to be informed to cspan is a home for political junkies in a way to track the government. I think it is a great way for us to stay informed. There are a lot of cspan fans on the help of my colleagues are going to say, i saw you on cspan. There is so much more that cspan does to make sure people outside the beltway know what is going on inside it. Announcer this year, cspan is touring cities across the country. Up next, we take a visit to greenville, south carolina. You are watching American History tv, all weekend, every weekend, on cspan3. Rep. Robinsonsimpson many of them complained about not knowing much about their history in greenville, and they reported that the schools only chapter they had on black people was the chapter on slaves. They were slaves and they wanted to know where they could find information and they wanted to know where they could find information but they didnt know nothing about the early history about being black in greenville. Looking at greenville, greenville was a typical southern town, and black and white, basically. I recall the 40s and 50s where there were families of asian descent, and there were