Transcripts For CSPAN3 Life And Legacy Of Supreme Court Justice Louis Brandeis 20170811

Evening for us and were delighted that Justice Ginsburg is here, as well. The Society Depends on the support of the justices of the court and they have been most generous. Otherwise, we would be unable to host this kind of event in this impressive surrounding of the Supreme Court courtroom so we are very grateful for your generosity and support. Im now going to offer a brief introduction for Justice Kagan who all of you know. Shell be introducing our lecturer for the evening. Justice kagan was born in new york city. She received her undergraduate education at princeton where she graduated summa cum laude. She then visited Oxford University as the daniel m. Sax graduate fellow from princeton and she earned her masters degree there. She returned to Harvard Law School, graduated three years later magna cum laude as being supervising editor of the harvard law review, then distinguished clerk ships. She first clerked for judge admiral migva of the d. C. Court of appeals and then for thurgood marshall, justice of the Supreme Court. After her clerkship she practiced law for several years at the firm of williams and connolly. Then she abandoned the practice of law at the call of the academy. She spent four years at the university of chicago as a professor of law there. Then service to our president. She served as associate counsel to president bill clinton and later as Deputy Director of president clintons domestic policy counsel. Then back to the academy, but this time harvard law. She began as a visiting professor, but they decided they liked her pretty well, and so she became a permanent member of the faculty there and in 2003 was named just the 11th dean of the Harvard Law School. Then from there she was asked by president obama in 2009 to become the 45th solicitor general of the United States. A year later, president obama nominated Justice Kagan to become associate justice of our Supreme Court and she was confirmed. Do you remember those days . Importantly tonight, when the court is in session, Justice Kagan sits in the chair, the same chair as did Louis Brandeis when he was a just oice on this court and we are very grateful to Justice Kagan and i ask you to join me in welcoming our host for the evening. [ applause ] thank you for that gracious introduction. When somebody gives an introduction like that i always think, whats the matter with that woman . Cant she keep a job . Thanks to the Supreme Court Historical Society for all you do for the court. I mean, these programs that you run are a terrific boon to the court and to the public so we thank you for all your great work and thanks to Louisville Law School for joining tonight in this celebration of Justice Brandeis and welcome to Justice Brandeiss family members. I didnt realize that you all would be here so you are very welcome always to come and visit us at the court. As was just said i do sit in the Louis Brandeis chair. I dont know if people know this, but each of the justices sits in a chair thats with certain justices who are in a direct line and so my chair, theres me and my predecessor is Justice Stephens and then the justice before that was Justice Douglas and then the justice before that was Justice Brandeis. So four justices in that 100 years since Justice Brandeis was confirmed. I call it knock wood, the longevity chair and thats the way i think about it. Its an honor to sit on this court, obviously, but it was a special honor for me to sit in this particular chair to be given the brandeis chair because truth be told, youre not supposed to have favorites, but truth be told and excluding all the justices whom ive known personally, all right . If you asked me who is my favorite Supreme Court justice i would say beyond a doubt its Justice Brandeis. So why is that . I was trying to think of how to explain this and he is, for one thing, one of the greatest writers on the court. You know, one of the three or four best writers, but its not style alone with Justice Brandeis and he married style with this power, and analytic force in his opinions. He was very grounded even at his most visionary and he had visionary moments. It was always connected to facts. He was very attached to a certain kind of impercism and that runs through his opinions and he had a real feel for American History and certainly the founding moment and the commitments of the founding moment, but also the way those commit upons played out through time over the course of of this nations history and progress and he had a great vision. A great vision of what this country was and of what it could become, and when you read his opinions, all of that when put together, his opinions are quite astonishing often in their impression. If you read his own stead dissent, for example, i dont think there is a better piece of writing about the hazards of a surveilled state. And his opinions are viewed with a deep and abiding wisdom, and i thought maybe rather than just saying all these things about those opinions, i should just give you a sample and, of course, professor uvovsky will talk about brandeis and the life he led and what made him great, but in this celebration of brandeis, i kind of think that the best way to celebrate Justice Brandeis was actually just to read Justice Brandeis. So ill give you my favorite Supreme Court opinion of all time of all time. Bar none and this is his concurring opinion in whitney, which is the First Amendment case. More people know about holmes with the First Amendment. When you think about the foundation of First Amendment law and the first you know is Oliver Holmes with clear and present danger, marketplace of ideas and those were incredible phrases and the opinions that they were in are incredible opinion, but in my view, the opinion that most gets at the First Amendment, what it means to this country and why this is so important to our nation is this opinion in whitney versus california, because its in this opinion where what Justice Brandeis does is he connects it to the deepest values of american civic life. He talks about how what the First Amendment does and the purpose of the First Amendment is ultimately to develop the faculties in order to participate in american democracy and its the beauty of that commitment is mirrored and is brought out by the beauty of his prose. I just thought i would read some of it for you, and i warn you, this is going go on for a few minutes because im going to read about two and a half long paragraphs, but to my mind, as i said, the best way to celebrate Justice Brandeis is to read Justice Brandeis. So here it is. Those who want our independence believe that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth that without free speech and assembly, discussion would be futile. That with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine and the greatest menace to freedom is an inert people that public discussion is a due date and that this should be a principle of the American Government. They recognize the risks through which all human institutions are subject, but they know order cannot be secure, and it is hazardous to discourage thought, hope and imagination. That fear breeds repression. That repression breeds hate. That hate menaces stable government. That the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies and that the fitting remedy for evil councils is good ones. Believing in the power of 18 as applied through public discussion, they askewed silence coerced by law. The argument of force in its worst form, recognizing the occasional tyrannies of governing majorities, they amended the constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. Those who want the revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidents of the evil apprehended is so imminent that it may be an opportunity for full discussion. If there were time explore the discussion, by the processes of education. The remedy to be applied is more speech not enforced silence and only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the constitution. Pretty great, huh . [ applause ] a justice whose centennial is worth celebrating. To do that we have the great brandeis scholar of our time, of any time, really, professor melvin urovsky has written 52 books and youll be glad to know that im not going to list them all, but among them is the definitive biography of Louis Brandeis as well as many volumes of the brandeis letters which are really quite fun to read. Professor urofskys latest work is called dissent in the Supreme Court and i know that that work is in part inspired by Justice Brandeiss great dissents. So i give you professor urofsky. [ applause ] were finished because Justice Kagan just gave my talk, so i dont Justice Kagan, thank you for the introduction. Justice ginsburg, i am so glad youre here. This year marks the 100th anniversary of the nomination and confirmation of louie d. Brandeis as associate justice of the Supreme Court. Despite the slurs and denunciations thrown at him during a fourmonth confirmation battle especially the charge that he lacked judicial temperament, today he is considered as one of the three most influential justices ever to serve in our nations high court. Before examining that influence which is still with us today, let me take a brief look at his career before he went on the bench. Many years ago before i started working on brandeis i went to Harvard Law School to visit one of his former clerks. Paul kleins office was piled from floor to ceiling with books, papers, exam booklets and as they discovered after his death, unanswered letters and unsent messages. Professor froin cleared a chair for me by dumping the pile of papers on that chair on a pile on another chair and for the next hour we talked brandeis, a topic he clearly relished and some of the insights he shared with me that day have remained with me. One thing he said, you must always remember, his was a mind of one piece. I have remembered, and in fact, entitled the book of essays on brandeis as a mind of one piece. What froin meant, and as i learned he was absolutely right. You cannot divorce one of the mans activities from the others. You could not, for example, look at his work as a lawyer separate from his career as a reformer or judge. So before taking a closer look at his judicial legacy, lets take a few moments on look at two of his other careers. Lawyer and reformer. His zionist activities, by the way, also fit into the mind of one piece construct and that subject cannot be covered in a few minutes. Brandeis entered law at a time when the profession underwent significant changes. Before the civil war, one went to a lawyer to sue or if you were being sued. He sold me a horse and delivered a mule type of thing. You went after the event. Building a railroad or a steel mill or a Department Store cost a lot more than a horse and opened the enterprise to a host of laws which one ignored at ones peril. So now businessmen went to a lawyer before the event, to find out what they had to do to avoid future legal problems. He had to know not only the law, but business, as well. His main function was to keep his client out of court. Whenever brandeis took on a new client, the first thick ng he d was go to the mans business and learn all he could about it. Many of his clients said that brandeis understood their business as well as they did, if not better. Why, he once asked, should a man come to me for advice if i do not know as much as he does about the problem . So we have brandeis in the role of lawyer as adviser and to fulfill that responsibility he declared that he had to know all the facts that surround. That was his quote. All the facts that surround. Both clients and opposition lawyers marvelled at brandeiss knowledge of even the most arcane aspects of business as well as his mastery of the financial side of a modern enterprise. Brandeis is remembered as one of the leading reformers of the progressive era and for two reasons, both of which relate to his role as one of the preeminent lawyers of his time. Here, again, the facts played an important role. It was his marshalling effects over 100 pages of them and his brief in mulligan versus oregon in 1988 how they could overcome the antipathy. They utilized the socalled brandeis brief for the legitimacy of reform proposals. Brandeis took no money for his legal work as ia a reformer and pioneered in making pro bono work an accepted part of an attorneys life. The other aspect of his reform work is also tied to facts. Whenever brandeis agreed to work on a reform the first thing he did was gather every bit of information he could. He did it, however, not just to document the wrong being done, but to figure out a solution. Brandeis never limited himself to saying that is bad. Lots of other people could do that, but just as he figured out solutions for his clients, legal and business problems, so he figured out solutions to the boston gas consolidations, Savings Bank Life Insurance and the great new york garment workers strike. One final note on his reform activities. Brandeis understood the political nature of government and did not fear it. He believed it necessary in a democratic society. He put together what is probably the first peoples lobby, the presser, the Massachusetts Legislature into enacting savings bank insurance, and he learned the little tricks, as well. One time when he came to testify about insurance to a legislative committee, he found the room practically empty and the Committee Members not particularly attentive. He did not know why, and as he left, one of his colleagues said that the legislators had paid no attention because they did not have any of their constituents in the room from that time on brandeis made sure that whenever he testified there would be people from each legislators district in the audience and from then on he always had their attention. In january 1916 Woodrow Wilson nominated brandeis to the court and after one of the contentious hearings in history the Senate Confirmed him in june and he remained there until his Health Failed in 1939. For in are so many aspects of that amazing 23year career that it would take me a course to examine them closely. I say this from experience since ive had more than once taught a course on the Supreme Court and the age of holmes and brandeis. So this evening let us just take a look into a few areas and i can recommend what i can think is a fairly good book and its available in the bookstore downstairs. One time, the first area i want to look at is craftsmanship. One time when a friend complimented him on how well crafted one of his opinions was, brandeis responded you must remember that i was a lawyer for 40 years. Many scholars believe that brandeis was the greatest craftsman on the bench in the 20th century. His opinions in the majority are pithy to the point and do not stray into irrelevancies and i. E. , nonjuris prudential comments. Today and at that time, as well, many justices relied on their clerks to draft the first section of an opinion, the part that recounted the facts in the case. Brandeis did it himself because as he explained to one of his clerks, if i get the facts right then it will be that much harder to counter my legal argument. And he was so careful to get everything right. One time brandeis turned to his law clerk and asked whether he could make sure if two statements were indeed correct. Landis had not, assuming that brand i brandeis would be right. Sonny, you must never assume that i know everything or that im even correct in what i may say. That is why you are here. Lets not have this again. Another clerk dean achson had cited some cases in his memorandum to the justice and realized something, quote, was very wrong when brandeis came in and put two volumes of state reports on his desk. Did you read all of the cases cited in the footnotes . Atchison said that he had. Suppose you read these two again, brandeis suggested and when he did atchison realized they had no bearing on the case at all. He began to apologize, but the justice dismissed the matter with one sentence. Please remember that your function is to correct meyy errors, not to introduce errors of your own. Brandeis also used his clerks as sounding boards and welcomed their arguments about his conclusions and rationales. In the end, however, they understood that no matter how much they believed in what they said the final decision would be in his hand. One of brandeiss influential opinions is not for the majority or dissent, yet it has influenced judges for eight decades and that is his concurring opinion in ashwander versus Tennessee Valley in 1936. In it, brandeis laid out seven rules which he said the court had developed over the years to govern which cases they took and how they decided those cases. In fact, it was brandeis, far more than his brethren who came up with these rules. Dont anticipate questions of constitutional law. Dont decide constitutional questions unless absolutely necessary. Always construe a statute as liberally as possible in order to support its constitutionality. If there are both constitutional and other reasons upon which to base a decision, always choose the nonconstitutional. There are some other rules, but what brandeis is trying to do here is limit the court to a very specific role, one that is defined by the constitutional network in which all government operates and which limits or should limit any one branch from exercising power beyond its prescribed provence. Recall that brandeis wrote the opinion of arnold v. Tompkins in 1938 the only case that im aware of where the court held one of its decisions unconstitutional. As we shall see or have already heard, brandeis could write eloquently when necessary. For the most part his opinions are straightforward and very clear. The reader, whether he be a lawyer, a lower court judge, a law professor or layman understood exactly what he meant. Robert h. Jackson, himself one of the great justices of his time, believed that some of brandeiss lasting work came in those cases when he spoke for the court in interpreting what jackson called, quote, the great lifegiving clauses of the constitution, unquote. The ones that give certain powers to the federal government. The late milton handler, the dean of antitrust law in the second half of the 20th century told me that no one on the court affected the field of antitrust law more than brandeis. If we look at his decisions in the chicago board of trade and the cracking oil cases, we see someone who is thinking has evolved far beyond the simple opposition that he espoused in the progressive era. It is brandeis who devised key principles in modern antitrust law such as concentric circles of concentration and measurements by the total market. He also warned courts that simplistic per se rules would not do. In the 21st century, this type of multidimensional analysis is the beginning of all antitrust law. A solicitor general once told the lawyer george fordham, quote, when mr. Brandeis writes an opinion dealing with the federal practice, the law is settled for 50 years to come, unquote. While this may be somewhat exaggerated, there is no question that brandeis had a Lasting Impact on many branches of the law. He had this influence because of the quality of his opinions. His ability to take complex issues and find the kernel of truth that had to be extricated. Holmes wrote short, pithy opinions, as well, but they did not have the impact that those of his colleague and friend had. When i was in law school in the early 1980s, i was not surprised, of course, to find brandeis opinions and especially his dissents and case notes on constitutional law and the First Amendment, but he was everywhere. Administrative law, federal courts, antitrust, commercial law. Since i didnt take admiralty law i cannot testify as to whether he was there, as well, but i would not be you are surprised if he were. The next thing i want to look at is the art of dissent. Last fall i published a book on dissent and what i call the constitutional dialogue, the give and take between the majority and dissenting opinions. Brandeis, of course, led me to undertake that project and in my biased eyes he will always be the great dissenter. In terms of dissenting, over the course of his tenure, brandeis wrote 454 opinions for the court and only 74 dissents, an average of more than three dissents a term, but oh, what dissents they are. In a minute well look at where brandeiss dissents determine the constitutional jurisprudence. When speaking for the court, brandeis like all justices had to tail lor his opinions to reflect the views and his majority. Here his work as an attorney played an important role. He had the ability or skill to marshall the facts set out and have a new inch prettiation that commanded a majority. In no 74 dissent cents, i feel the characteristics, in which the law didnt pass. The legislature had relieded on and the esnecessity to deliver to the legislative path and policy making and the individual liberties and the hole the speech played in the variety. They led harold to suggest to his friend holmes, if you could hint to brandeis that judicial opinions arent to be written in the form of a brief it would be a great relief to the world. Laski missed the point. Brandeisian dissenses are briefs written to the explain to the bench, the bar, the academy and the public why the majority had erred. Brandeis intended them to be convincing and therefore they had to be fact laden. In 1924 the court struck down a nebraska bill establishing standard weights for loaves of bread sold at retail. Speaking for the majority, justice Pierce Butler held that the police power of the state did not extend to unreasonable regulation and he considered standardizing the weight of bread loaves to be unreasonable. Brandeis entered an elaborate dissent and there was a key part that explains much about his philosophy of dissent, and i quote. Unless we know the facts on which the Legislature May have acted, we cannot properly decide whether they were or whether their measures are unreasonable, arbitrary or capricious. Knowledge is essential to understanding and understanding should precede judging. Sometimes if we guide by the light of reason we must let our minds be bold. In order for his brethren to understand these facts, brandeis then gave them a long and detailed history of bread making, the regulation thereof and in short, far more than they or we ever want to know about the business. Holmes joined in calling the dissent a sakalago, a word nowhere to be found in any dictionary and told frederick pollack that brandeis had written a good dissent showing profound study in the art of bread making, unquote. None of this, of course, should have been necessary. The only question should have been whether the states under the police power could establish a system of standard weight, something governments had been doing in one form or another for centuries. They had the aim of teaching and explaining why and how the majority had erred. A number of clerks report a similar story. After justice and clerk had labored over a dozen or more versions of dissent, brandeis would then say now i think the opinion is persuasive, but what can we do to make it more instructive . Brandeis took the role of teacher seriously. I believe he is an acknowledged master. Holmes, perhaps the greatest stylist on the court often seemed more concerned with philosophy more than jurisprudence. Douglas, who took brandeiss seat on the court in 1939 dissented very frequently. Often just to register his disagreement with the majority. He did not care if he won over other justices to the argument or if the public learned anything. Since as he often put it, the only soul i have to save is my own. Brandeis chose carefully which decisions he would oppose knowing that one had to weigh the effect of dissents on relations with the other justices. I quote, there is a limit to the frequency with which you can dissent without exasperating men, he told Felix Frankfurter who parenthetically, never learned this lesson. Now silence did not mean concurrence, but one had to husband resources and dissenting too often would weaken the fwors of the dissent when it became important to write. So he said, sometimes i endorse an opinion with which i do not agree. I acquiesce or as holmes put it, i shut up. There might be an important case in which you want cooperation and so you do not want to antagonize other justices on a less important case. If a judge descends too often then the public will not pay attention. They will not recognize when an important dissent comes down. Brandeis even went so far as to suppress dissents already written when he could per sway the majority to modify its ruling. Justice ginsburg has said and others have commented on this practice and she has said that, quote, in the years i am privileged to serve on the court i hope i will be granted similar wisdom in choosing my ground, unquote brands oois hoped to educate and he worked on educating others especially lawyers and teachers. He looked to the future and as he often said, my faith in time is great. There are two areas that i want to look at a little more closely. Brandeiss legacy in free speech and privacy. Now First Amendment, modern First Amendment jurisprudence begins in 1919 when a series of cases testing wartime restrictions came before the court. Until then in the few speech cases the court had heard and accepted a role that while there could be no prayer restraint, once a person had said or published something critical of the govern am the socalled bad tendency, then that person could be prosecuted. While this rule a few centuries earlier had led to the execution of theec spooer, hardly an inducement to be critical of the crown, at the beginning of the 20th century, the punishment was imprisonment. During world war i the Wilson Administration passed a series of laws that harken back to the acts of the late 18th century all designed to punish people who had the temerity to criticize the American Government for going to war or urging young men not to submit to the draft. The first case, shank versus the United States in 1919 appealed the constriction of the general secretary of the socialist party for printing and distributing a pamphlet attacking the draft. Holmes writing for a Unanimous Court declared that the character of every act depends on the circumstances in which it is done and when a nation is at war many things that might be said in time of peace will want be endured so long as men fight. Hoechls then lay down the clear and present danger test. The question in every case is whether the words used in such circumstances are of sch a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. This was actually a more speech protective test than the old notion of bad tendency and it became the standard that courts reduced in the next century. It immediately and rightly so caused consternation among free speech advocates who recognized how subjective it was. In the hands of conservative jurists, anything that questioned the status quo or criticized the Free Enterprise system could be considered clearly and presently dangerous. Brandeis joined the court in shank, but as he later told Felix Frankfurter, quote, i have never been quite happy about my concurrence. I had not then thought the issues of freedom of speech out. I thought at the subject not through it. Thinking at the subject meant relying on the state of First Amendment jurisprudence in 1918, thinking through it would lead to the modern notions of what free speech entails in a democratic society. That summer, brandeis and holmes, especially the latter, were bombarded with letters and visitors arguing that the First Amendment protected speech far more than the shank opinion allowed. The arguments bore fruit and that fell on abrams versus the United States. The two men took the first step toward endowing the speech clause with all of the vig ar its framers had intented. The majority convicted abrams calling for a general strike to protest American Intervention in russia. Justice clark mechanically applied the clear and present danger test and dismissed the First Amendment claim. Holmes penned what may be his most famous dissent. He had no use for the ideas that abrams and others put forth, but there is no danger. The First Amendment had been designed to support the Free Exchange of ideas, not their suppression. Quote. When men have realized that they may come to believe that the ultimate good desire is better reached by free trade and ideas and it is the power of the thought to get accepted in the competition of the market and that truth is the only ground upon which their wishes may be safely carried out. That, in any rate, is a theory of the constitution and it is an experiment as all life is an experiment. Although oops. Although brandeis joins holmes he remained uncomfortable with the holmes approach. He was still thinking his way through the problem. Thank you, dear. All he wanted was for the courts to interpret it liberally, punishing only action, not ideas. Even holmes dissent in abrams, eloquent as it may have been, did not get to what brandeis considered the real issue, namely, the place of and the importance of free speech in a democratic society. Holmes always saw himself as a philosopher, and his notion of ideas competing in the market is a wonderful trope for philosophers, but not for judges. One of the functions of this court, this Supreme Court, is not only to decide cases, but to set down the rules and reasoning to guide lower courts. The holmes test allowed too much subjectivity on the part of judges and juries and gave lower courts no guidance in establishing criteria for First Amendment protection. Brandeis began working on this problem in a series of dissents culminating in the greater opinion in whitney versus california. He labored under one difficulty, however. Because he had joined holmes in abrams, and because holmes had joined his dissents in subsequent cases, brandeis could not just dispose of the clear and present danger test, but he did give himself some room to maneuver, and in one case in which holmes joined him, he described clear and present danger as rule of reason, rather than inflexible standard. Brandeis seemed to have gotten to where he wanted to be when the court heard the case of another political radical, ruth annburg versus michigan in early 1927. He and his clerk prepared a powerful dissent, but before the opinion came down, ruthemburg died in a chicago hospital. Brandeis filed away the dissent but then soon afterwards had a chance to dust it off, polish it a bit, and deliver what some scholars believe to be the greatest dissent ever written. Charlotte anita whitney, at the time of her arrest, was described as a woman nearing 60, a wellesley graduate long known both for her philanthropic work and her sympathy for leftist causes. Police arrested her under a california criminal syndicalism act in 1919 for helping organize the communist labor party in the state. Whitney denied at her trial that the communist group had ever intended to become an instrument of crime or violence, and the state never offered evidence that she or the party had ever engaged in acts of violence. But such was the temper of the country during the red scare that the trial court found her guilty. Justice sanford, utilizing the band tendency test, upheld the conviction. And because whitneys lawyers had relied on the due process clause in their argument, held that the clause did not protect ones liberty to destroy the social and political order. Because of technical issues, brandeis chose to concur, rather than dissent. At her trial, whitneys lawyers had failed to raise First Amendment claims, and so technically, the court could not at this date reach First Amendment grounds. But because the court had never fixed the standard by which to determine when a danger shall be deemed clear, brandeis found it necessary to discuss the issue. His opinion, joined by holmes, has never been seen as anything other than a protest against the majoritys restrictive interpretation of free speech. Professor mark tushnet, in a study of great dissents, said the brandeis opinion in whitney is the best example we have of what a dissent can do. By now, brandeis had thought the issue through. Holmes market analogy struck brandeis as not going far enough to protect speech in a positive way. Surely, the framers had more in mind than simply letting people engage in rancorous debate. His thought, which has been described as civic virtue or civic courage, summed up his ideas not only on speech, but also on the nature of democratic society. And in it he achieved an eloquence rarely matched in the anales of the court, and i can now skip the next few pages, thanks to Justice Kagan. Now, brandeis often said that the highest office one could hold in a democracy is that of citizen. Citizenship, however, keynotes not only rights, but chief of which is determining participation in matters of public policy. One does this by voting, by attending and taking part in municipal, state and federal legislative hearings, by writing articles or letters to editors, and by joining citizen interest groups. But in order to carry out this responsibility, a citizen has to have knowledge. Remember, he said, knowledge must precede judgment. And so, a citizen has to be able to hear all sides of a question. The First Amendment not only protects the right of people with unpopular views to speak, but it protects the right of all people to hear a variety of views. The citizen, in order to fulfill his obligations, must hear and understand all sides of an issue. Perhaps more than any of his other opinions, the whitney concurrence has shaped american constitutional law. In it he developed a legal doctrine identifying the scope of protection that the First Amendment affords, a doctrine that eventually became the law. Its influence can be seen in the powerful First Amendment opinions later penned by justices hugo black, william o. Douglas, william j. Brennan, and John Marshall harlan ii. Gradually, the court abandoned sanfords bad tendency standard and also moved away from holmes clear and present danger test. Although the test continued to be used in the 1940s and 50s, the warren court abandoned it in 1969 when the Court Unanimously overturned an ohio law very similar to the california one that had ensnared ms. Whitney. In a per curiam opinion, the court said that the majority opinion in whitney had been thoroughly discredited by later decisions. In their concurring opinions, hugo black and William Douglas emphasized one point, that clear and present danger no longer had any place in First Amendment jurisprudence. Brandeis whitney opinion continues to be cited in the dialogue over the meaning, and especially the extent, of First Amendment protection and also for the notion that the speech clause favors more, rather than less, speech. In a 1980 case, Justice Blackman and stevens in concurring opinions and Justice Rehnquist in dissent all cited whitney concurrence as the standard for free speech adopted by the court. In june 2011, Justice Elena kagan cited her predecessors opinion for the proposition that the free speech clause always favors more speech rather than less. Regarding privacy, theres been a large controversy over whether or not the constitution includes a right of privacy. Hugo black set the tone in a 1964 case, when he said i like my privacy as well as the next one, but i am nevertheless compelled to admit that government has a right to invade it, unless prohibited by some specific constitutional provision. Brandeis started this flap in 1928 with his dissenting opinion in olmstead versus the United States, but his interests in privacy goes back much further. In 1890, he and his former law partner, samuel d. Warren, wrote about a right to privacy in an article in the harvard law review that would be the mostcited law review article, both in judicial opinions as well as in scholarly journals until after world war ii. Now, in 1890, were not talking about a constitutional right. Warren and brandeis had limited sources on which to rely, but they made the most out of old common law rules, such as unauthorized use of facial reproductions. The article, however, begins with the following claim, that the individual shall have full protection in person and property is a principle as old as common law but has been found necessary from time to time to deliver anew the exact nature and extent of such protection. They suggested that over time, as society matured, ideas such as the right to life and the right to property also matured to cover new notions of life and property. Now they declared the right to life has come to mean the right to enjoy life, the right to be let alone. In this paragraph, we have a preview, as it were, of what would make brandeis a successful lawyer, an influential reformer, and a great justice. One has to take in, as he later put it, all the facts that surround. One had to take into account changes in society, political, social and economic, and recognize that these could create new rights. He did, in fact, believe in a living constitution. Although brandeis claimed, even at the time that he undertook the article, only because of sams impugning, he apparently never forgot about it. And when roy olmsteds case came before the Supreme Court, brandeis seized the opportunity to champion a right to privacy based not on common law, but on the constitution itself. When i teach olmstead, i always say that it ought to be a case study at the Harvard Business school. Roy olmstead was a policeman in seattle during prohibition and recognized that a lot of money could be made from selling liquor, only for someone who had a Good Business plan. So he resigned from the police force, got some friends to invest, and before long had a thriving business going. They did not make bootleg liquor. Rather, they had fast boats that brought the good stuff in from canada. They bought an old farmstead and used its barn as a warehouse to store the merchandise. I should note that the only thing that olmstead handled was liquor, unlike al capone in chicago. There was no prostitution, no numbers. His delivery boys did not carry guns. He had an office in town with a phone bank, and all you had to do was call, say i need a couple of cases for a party tonight, and within an hour, delivery would be on its way. Roys wedding to Elise Campbell was one of the social highlights of the season. He reveled in the title the newspapers gave him, the king of the puget sound bootleggers, which was meant to be and was taken as laudatory. The good people of seattle had little use for prohibition. Roy and elise held balls, sponsored Charity Events and moved among and were considered to be a part of the seattle social elite. Roy didnt worry too much about the occasional police raid. He had two brothers on the force who were also on his payroll, so they always knew in advance when anything was going to happen. Unfortunately for roy, the feds did try to enforce prohibition, and hearing of olmsteds operation set up telephone taps outside both his office and home. We are not talking brain surgery here. What we have is a wire with two alligator clips at one end and a set of headphones at the other. After gathering about 700 pages of notes, they arrested roy for violating the volstead act and with such a mountain of evidence, the jury had no trouble convicting. Olmstead appealed and claimed that because the federal agents had failed to get a warrant, the evidence they secured via the wiretaps was tainted and could not be used in court. The Supreme Court had, in fact, blocked any use of illegally seized evidence in prior cases, and only a few months earlier, brandeis speaking for a Unanimous Court reinforced the exclusionary rule, holding that evidence illegally seized in a warrantless search could not be used in federal court. Nevertheless, in olmstead, a bare majority refused to accept the Fourth Amendment argument, and instead agreed with the government that wiretapping did not constitute an unreasonable search or seizure within the meaning of the Fourth Amendment. Chief Justice William howard taft wrote what must be considered one of the most wooden opinions ever handed down by the court. He tried to limit the opinion to one question did evidence from a private telephone conversation intercepted by a wiretap amount to a violation of the fourth and fifth amendments . Since the federal agents had not entered either the house or the office, all they did was listen in from the outside, there had been no physical penetration, and therefore, no constitutional violation. There were three dissents, each one joined by the newest member of the court, harlan fiske stone. The normally conservative butler tears it apart, on historical ground and by the misreading of prior Fourth Amendment case. Holmes condemned wiretapping as a dirty business and explained there are two desirable goals, one is to detect criminals using all available evidence, and the other that the government should not itself use illegal means to catch miscreants. For my part, he wrote i think it less evil that some criminals should escape than that the government should play an ignoble part. Holmes had not intended to write separately, but he did so for two reasons. One, brandeis asked him to do so. And the other is that holmes did not fully agree with all that brandeis said. In his dissent, brandeis did two things. First, he completely recast the meaning of the Fourth Amendment search clause. And second, he laid down the basis for a constitutionally protected right of privacy. In his opinion, brandeis did not attack or defend prohibition, but rather, the means that the government had chosen to enforce it. And the reason for his antipathy was that government, he said, should never be the lawbreaker because it is the great teacher. Taft had built his opinion around the question of space. So long as the federal agents had not set foot inside olmsteds home or office, then the Fourth Amendment requirement of a warrant before a search did not apply. This had been noted as the usual standard up to that period of time, but there had been no telephones involved in prior cases. Taft committed what brandeis considered the greatest sin in judging, he had not taken into account changes in society and technology. He had paid no attention to the facts. Time works changes, he wrote, brings into existence new conditions and purposes. Discovery and invention have made it possible for the government by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. At this point, brandeis wanted to refer he had a clipping in this folder, and he wanted to refer to a new device recently developed by the General Electric Company Called television, but he removed the note in deference to his clerk, Henry Friendlys skepticism. Brandeis then went on to write one of the most eloquent and most quoted passages in american law. The makers of our constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of mans spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect americans and their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be let alone, the most comprehensive of rights and the rights most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. In the olmstead dissent, brandeis reinvented Fourth Amendment jurisprudence. Tafts opinion, as well as prior search and seizure cases, had been grounded in concepts of property, whether or not police had entered the home. Brandeis shifted the emphasis from place to how it affected an individual and reinforced the notion that whether an invading a place of business or a home, the police were intruding upon a persons privacy. The framers, he believed, had intended the Fourth Amendment to protect that privacy. Although brandeis did not live long enough to see many of his dissents accepted by the court and country, he lived to see congress prohibit wiretapping evidence in federal courts in the 1934 Communications Act and for the court to partially reverse olmstead in 1937. His dissent hovered like banquos ghost at every Fourth Amendment case that came up, until the court finely and definitively overruled olmstead in 1967 and adopted the brandeisian view. That year, judge Potter Stewart described the philosophy in words directly out of brandeis dissent the Fourth Amendment protects people, not places. In a 2001 case, Justice Antonin Scalia used the logic of brandeis dissent to hold that federal agents could not use a new technology, thermal imaging, to look through the walls of danny lee kilos house to determine that he was growing marijuana. Even though the agents used the machine outside the premises, they had secured information about inside and so could not use that evidence without a warrant. Then in 2013, a drugsniffing dog was brought to the front door of joellis jardines house and reacted strongly to the smell of marijuana. Based on this, police secured a warrant, found cannabis in the house and arrested jardines. Once again, Justice Scalia said that the use of a dog required a warrant before any evidence produced could be used in court. The two opinions by scalia track the brandeis opinion in olmstead, but do not cite it, because Justice Scalia did not believe in the other half of the dissent, which was about the right of privacy. Now, privacy as a constitutional right cannot proscribe those decisions that men or women make to shape their own lives. Certain choices, brandeis believed, are so fundamental that they may properly be said to be totally outside the reach of the states power. Over the years, the court has come to recognize areas of procreation, marriage, family life, health, and more recently, sexual orientation. Despite great pressure from religious and social conservative groups, the court and the country have accepted brandeis notion that the constitution embodies a right to be let alone. Debate has not ceased, but the arguments are less on whether the right to privacy exists and more on what are its limits. There are those who have argued that the constitution does not mention privacy. Justice Anthony Kennedy has responded that the framers had not drafted the document in specific terms. They did not claim to know the components of liberty in its manifold possibilities but were themselves open, as the court needed to be, to new arguments and experiences. In words brandeis himself might have used, kennedy concluded that the framers knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper, in fact, serve only to oppress. As the constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Finally, a few words on the legacy. Chief justice john roberts, in discussing the characteristics of influential justices, suggests that the ones who rank highest in effectiveness were the collegial pragmatists, the secured justices who know who they are, judges who show personal as well as judicial humility, those who know when to hold their tongues and those who are aware of a cases practical effects. These judges ranked far higher than the selfcentered players, the narcissists, the loose cannons, and the ideological purists. Although roberts did not mention any names, certainly, Louis Brandeis exemplified all of the traits on the first list. He had no need to dominate either the court or his colleagues, and in many instances shapes the courts majority to reflect his beliefs in a jurisprudence that recognized the need to reconcile abstract principles of law with contemporary facts. Because the heavily conservative makeup of the court during the time he sat on it, he carefully chose those cases where he could make a statement that would teach, and there are few decisions in the courts long history that served as effective lessons as the brandeis dissents. Modern scholars have consigned many of the majority decisions in the 1920s and 1930s to the dust heap of history, but they continue to study the brandeis opinions and hail him as not only a master of judicial pragmatism but as one of the greatest justices ever to sit on the court. Thank you. [ applause ] American History tv in prime time on cspan3 continues tonight with our original series, landmark cases. At 8 00 eastern, miranda versus arizona, the 1966 Supreme Court decision requiring police to inform criminal suspects of their rights before being questioned. Next week at 8 00 p. M. Eastern on cspan3, a civil war special featuring American History tv highlights. On monday, were at the emerging civil war blog symposium, where we look at the great defenses of the civil war, including gettysburg, antietam, and the siege of vicksburg. Tuesday we focus on civil war leadership at the Longwood University civil war seminar with talks on generals robert e. Lee, ulysses s. Grant, and confederate colonel john mosby. Wednesday through friday, were at the Gettysburg College Civil War Institute conference. Wednesday features lincoln scholar harold holzer. On thursday, speakers include historian john marsalack and on friday we conclude the conference with author t. J. Stiles. American history tvs civil war special, all next week beginning at 8 00 p. M. Eastern on cspan3. All persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention. Landmark cases, cspans