We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 46 in which Slate’s Dahlia Lithwick discusses former Supreme Court Justice Louis D. Brandeis and developments in the Trump University lawsuit.
Things have been pretty quiet at the court this week, so Amicus took a little trip down memory lane to compare some of the issues facing the court today that they faced 100 years ago. Dahlia sits down with Jeffrey Rosen, author of Louis D. Brandeis: American Prophet. Rosen says that now more than ever, Brandeis is a timely figure to discuss due to his stances on race, surveillance, and the fact that he holds the record for the longest Supreme Court confirmation in American history—a title that is likely to be taken by Merrick Garland.
But before that, Dahlia briefly catches up with Deborah Rhode, director of Stanford Law School’s Center on Ethics, to discuss the implications of Donald Trump’s recent statements on the Trump University lawsuit.
To learn more about Amicus, click here.
Dahlia Lithwick: Hi and welcome to Amicus, Slate’s podcast about the Supreme Court. I am Dahlia Lithwick and I cover the high court for Slate. Well, it’s been another relatively quiet week at the highest court in the land with the exception of a tiny administrative snafu on Monday where the justices were briefly a little confused about which part of a case they had in fact agreed to decide next term. And while usually this time of year, June, before the end of the term is hopping and crazy, it’s been quiet enough that we thought maybe we’d take a little time to reflect on history. So later in the show we’re going to speak with the National Constitution Center’s Jeffrey Rosen about his wonderful new biography of Louis Brandeis.
But we wanted to start the show with one more current event. And for the most part, much of the legal world’s attention has been focused this week on Donald Trump and his attacks on Gonzalo Curiel, the federal judge who is currently presiding over the Trump University fraud cases in California. Trump somehow managed to offend surprising numbers of establishment Republicans and no small number of everybody else when he said last week that Judge Curiel was biased and should be bumped off the cases because Judge Curiel is Mexican. He isn’t. And then later he said he should be bumped off the cases because he is of Mexican descent, and thus predisposed to rule against Trump because of Trump’s plans to, well, build a huge wall.
Joining us to discuss the ethical problem surrounding judicial recusal is Professor Deborah Rhode, for whom I have tremendous personal bias as she teaches at my alma mater, Stanford Law School, where she is founding director of the school’s Center on Ethics. Rhode is author of numerous books, including a forthcoming book this fall on women and leadership. Deborah Rhode, welcome to Amicus.
Deborah Rhode: Thank you so much for having me.
Lithwick: So, even though this is a show about the Supreme Court usually, the news this week has been not about the Supreme Court, but it certainly involved a judge, and specifically it’s involved Donald Trump attacking Judge Curiel in his class action lawsuits that involve Trump University. And you’ve been widely quoted, but I thought—help us understand, because it seems at one level that what Donald Trump is simply saying is my judge is biased. And yet the blowback has been profound. So help us understand what it means to say that a judge who is of Mexican heritage is biased if you are Donald Trump.
Rhode: Well, there’s a sorry history of these kinds of charges of bias being leveled at women and judges of color, and also gay and lesbian judges. The theory being that they’re going to be incapable of a disinterested judgment on matters that involve their own identity groups. And it came up famously for Constance Baker Motley who was one of the first African American federal judges in a case involving sex discrimination. It came up against Judge Higginbotham, an African American—one of the first African American judges involving a case of race discrimination. It came up for the judge who presided over the California gay marriage case, who was gay.
And the notion somehow that individuals because of their identity can’t render an impartial judgment is just deeply offensive and contrary to all the ideals of the judicial system that we value. And ironically enough, if the case involves race, and one claims that race is a disqualifying factor, nobody could hear the case. It’s not as if whites don’t bring their own personal views to cases involving discrimination. So, the notion that a black person can’t because it’s discrimination against blacks just runs counter to all the social psychology on implicit bias that we know. Everybody comes to these cases with some preconceptions, and the premise of our judicial system is that judges by training and by ethical codes are obligated to set those prejudices aside and to decide on the facts and the law. And to claim that somebody can’t simply because of their racial identity is deeply offensive.
Lithwick: Now, a lot of conservative writers have twisted that argument in the conversation around Judge Curiel and said this is identity politics as played by liberals. And that I think what they’re trying to say is that progressives are the first to say, oh you know, Sonia Sotomayor is uniquely and exquisitely sensitive to race issues because she is a Latina.
Or Thurgood Marshall was uniquely able to understand and comprehend what it meant to grow up in the Jim Crow south. And so the criticism from the other side of this debate—and these are not necessarily I think defenders of Trump, but they’re certainly quick to say, you know, if you’re going to live by the race card, you die by the race card. And that it’s progressives who have raised these issues of identity and having special solicitude to folks of your own race or religion or economic class. Is that a fair criticism? Is this something that progressives brought on themselves?
Rhode: Well, you know, take that argument to its logical extreme. Let’s assume, as in fact I do, that Thurgood Marshall because of his experience of discrimination did bring a special perspective to the court. That’s what his colleagues on the court so valued him for as all the tributes pouring in after his retirement attested. And wouldn’t it have been ironic to then, if you follow Donald Trump’s logic, say that he couldn’t decide any civil rights cases because he would be biased.
I mean, we do want a diverse and inclusive judiciary—one that looks like the people that they serve. And we do recognize the value of having diverse backgrounds represented. But by the same token, we don’t want to disqualify individuals who are selected partly because they bring that diverse experience to the court in cases where that experience is most likely to make a difference.
Lithwick: And am I wrong to say, Deborah, what’s exquisitely weird about the Donald Trump/Judge Curiel formulation is that this isn’t even a case about race. So, you know—
Rhode: Of course not.
Lithwick: You describe Judge Vaughn Walker, or Judge Higginbotham, you know, those are people who people are trying to sort of conflict them out and say, hey, they can’t hear race cases. What’s doubly, possibly triply weird about the Trump claim is that I said something really hateful and offended an entire class of people, and in a case that actually has nothing to do with race he should still be conflicted out. So, this is sort of a Triple Lutz of weirdness, even by the standards of trying to conflict out judges based on race and religion.
Rhode: Well, yeah. And, again, follow the argument to the logical extreme. If that were a winning argument, Donald Trump could get anybody off the bench on his cases by just something deeply offensive based on their background.
Do we want to really give a politician that power?
Lithwick: I think Megyn Kelly at Fox described it as insulting your way to a better judiciary, right?
Rhode: Yes, well, yeah. Good for Megyn.
Lithwick: Let’s talk a little bit about another piece of this sort of judicial ethics puzzle. And this is not related to the Trump controversy, but a little bit related to Curiel. And that is I think listeners are always perplexed by the fact that judges don’t push back in these cases. Not just that Judge Curiel has not said anything, and in fact, cannot say anything. But I would even broaden it out to, you know, judges who are victims of attack ads in say state Supreme Court elections can’t talk back. Judges are really barred from commenting on this kind of huge public hue and cry. And I wonder if you can help our listeners understand how it is that we so disadvantage our judicial branch so that even Merrick Garland can’t get up and give a press conference in which he says, “Give me a damn vote.” We just hear silence.
Rhode: Yeah. Well, I think, these kinds of cases really call into question whether we’ve really got the right rule in muzzling judges. I mean, the rationale for not allowing them to defend themselves is that you want judges to be above the fray. You don’t want them to get involved in partisan politics. But there have been so many examples of highly qualified judges of enormous integrity who lost their positions because they were in fact disabled from speaking out to defend a controversial opinion.
You know, you can understand why the original framers of judicial ethics thought it would be undignified and would call into question the legitimacy of the judicial decision-making process to have mudslinging by judges, but the way that we hobble people of enormous integrity from defending themselves is, I think, deeply problematic in states where you have an elected judiciary, or a judge is subject to recall.
Lithwick: Well, that was going to be my next question, because you’re at Stanford and you’re in the midst, you know, the epicenter of a fight about another judge. And this is Aaron Persky who is the judge who really I think it’s fair to say there is a mob seeking to recall him because of what’s perceived as a too-lenient sentence in a sexual assault case.
Can you talk a little bit about what it—it sort of feels to me that there’s a slight piece of hypocrisy, or maybe I’m not understanding it, where we decry Donald Trump’s criticism of his judge, but then we turn around and try to bring down a judge for a sentence he offered in the very same week. Are these two things of a piece? Or is it more complicated than that?
Rhode: Well, you know, I do think the whole question of judicial accountability is a complicated one. On the one hand, you want to encourage judicial independence. And it’s always, I think, problematic when an unpopular decision triggers a recall election.
Because it sends a disempowering message to judges. On the other hand, you know, it’s the only way that voters have to rein in someone whose views are really so out of the mainstream of public opinion that they jeopardize the legitimacy of the judicial process. I personally think that we should be extremely reluctant to use a recall mechanism for an unpopular decision simply because of the message it sends about judicial independence. But, I wouldn’t say never.
There are cases in which somebody has demonstrated just such an outrageous disregard for the bounds of an acceptable decision that you want a measure of accountability.
Lithwick: And am I right in saying that the locust of this problem is simply that judges in America are half political animals and half oracular demigods? And we’re never quite sure which of those two things they are. And so, you know, on the one hand we want to preserve the integrity of the judicial branch, and we want to talk about judicial independence, and how damaging and dangerous it is when Donald Trump calls out Judge Curiel. And at the same time, at the end of the day, judges work for us and we can recall them and we can impeach them. And so I think that there’s a weird way in which judges live at sort of the interstices of—and quite uncomfortably I think—at the interstices of these two worlds that are hard to reconcile?
Rhode: Oh, I think that’s exactly right. And, you know, the cliché is, you know, what are the qualifications for a federal Court of Appeals judge is somebody who knew a senator once. I mean, you know, the process of selection is deeply political and yet we expect the result to somehow stand above it. And, you know, in some measure we can’t have it both ways. And these cases really test which way we want it.
Lithwick: Deborah Rhode teaches law at Stanford Law School. She’s the founding director of the Law School’s Center on Ethics. And her upcoming book is on women and leadership and it will be out this fall. Deborah, thank you so very much for joining us this week on Amicus.
Rhode: Thank you, Dahlia. And thanks for calling attention to these questions.
Lithwick: So, now we want to talk to really one of the great, great writers and thinkers about the court, Jeffrey Rosen. He is a contributing editor at the Atlantic. He’s president and CEO of the National Constitution Center, which really is Disneyland for the Constitution. And I could not commend more if you’re thinking about taking your family somewhere slightly nerdy. I would say that’s the place to go this summer.
Jeff’s new book, Louis D. Brandeis, American Prophet, is just out. And in a sense I think the timing of this book could not be more perfect for this moment in history, because it lands in the midst of a firestorm about the role of race and religion in the judiciary, and also in the midst of a really overheated debate about the nature of the court itself. So, Jeffrey Rosen, welcome to Amicus.
Jeffrey Rosen: Thank you so much, Dahlia. It is so wonderful to be here. You’re doing such a phenomenal job with Amicus, which is a sibling podcast to We the People. We’re all part of the beautiful Slate Panoply Network. And every week when I say tune into our sibling podcasts, I’m thinking of you, because there’s no one better who is bringing people together to talk about the law. So it’s a thrill to be here.
Lithwick: Thank you. I was actually going to shout out to our cousin show, We the People. And so, good. Now everybody knows that we completely dominate the field of Supreme Court podcasting here at Panoply.
Jeff, I want to start by talking about Brandeis, and then we’ll broaden out. But I think, you know, I’m hardly the first person to say that you’ve written a book about a person who has more to say about the current state of being than almost anyone, Louis Brandeis, and yet nobody is talking about Louis Brandeis. So, dive in with me and talk about some of your big themes, be it bigness, or too big to fail, or institutions and the distrust of institutions. I mean, every single thing that Brandeis stood for is on the table in this 2016 election. So why aren’t we talking more about Brandeis?
Rosen: That is, of course, a question I ask myself every day. And I think the answer has to do with the fact that Brandeis was a consistent critic of bigness in business and in government. And today we have critics of bigness in one or the other, but not both. So basically Brandeis was a Jeffersonian. And you say the timing is great, and it is in a lot of senses, except not for Jefferson, because this is a Hamiltonian moment, and he’s the rock star of the minute with a great musical. And Jefferson is more out of fashion, both because of his views on race, where he’s properly questioned, that part of his legacy, but also because the libertarian critique of bigness in business and government, the idea that size is a danger is something that’s shared on the right when it comes to government and on the left when it comes to corporations, but not both.
So, Brandeis, like Jefferson, is an equal opportunity critic of bigness. And he, like Jefferson, sees American history as this incredible clash between small producers, farmers, and small business people on the one hand, and wicked oligarchs and financiers and monopolists on the other. And that strain of anti-monopoly crusading egalitarianism really runs throughout American history from Jefferson, to Jackson, to Woodrow Wilson, that finds its apotheosis in Brandeis, continues through the New Deal, but then it sort of peters out in the ’60s because progressives in particular become more interested in extending equality to minorities, and women, and other excluded groups, and little more suspicious of these old white guys, often from the south, who were crusaders against monopolies.
So, that’s my take on why Brandeis, who is more relevant than anyone else, has not been cited more in the election. But, Dahlia, I’m really curious for your take, because you’ve thought a lot about this as well. Why do you think Bernie Sanders, for example, is citing Theodore Roosevelt as the progenitor of his critique of the banks when actually Roosevelt wanted to keep the banks together and regulate them and it was Brandeis who wanted to break them up? Why do you think Brandeis is not more cited?
Lithwick: Well, I suspect my depressing answer, and you can correct me if I’m wrong, is that for one thing I just don’t think we think about jurists as rock stars or great thinkers, particularly in the political world.
There’s such a kind of complicated line between politics and the law and we don’t sit around and say, hey, you know, what would Oliver Wendell Holmes have had to say to this. What would Felix Frankfurter have had to say? Now, Jeff, I say that with the caveat that you always go back to Frankfurter. You always go back to Brandeis when you’re talking about current political issues. But I wonder if there’s just a sense that we have nothing to learn from any Supreme Court justice, including the great Chief Justice John Marshall. It’s just a different world and those ideas and values don’t map onto political debate the way they do onto constitutional debate. Am I wrong?
Rosen: No, I think that sounds right. And, you’re right, that generally we don’t think of justices as philosophical or political models. And although you and I are wonks, and I love the way you describe the NCC as Constitutional Disneyland for wonks, but kind of fun wonkery, Brandeis is different.
You know, Holmes never believed in the truth and morality of the laws he was upholding. He said, “I loathe the thick-fingered clowns we call the people.” Brandeis had a very distinctive vision of political economy that he persuaded Woodrow Wilson to adopt in the 1912 election and that he largely enacted from the bench. So, one of the surprises in this book, Brandeis is often painted as an acolyte of judicial restraint, or the view that judges should uphold laws whether or not they like them.
And I came to believe that actually Brandeis tended to uphold laws that he liked and strike down those that he didn’t, generally strike down centralizing federal agencies in the New Deal, and uphold state economic experimentation. So, that makes him kind of unique. There are not a lot of justices in the history of the court who were as influential in shaping our notions of political economy as well as our notions of constitutional interpretation.
And then you throw in the fact that he at the age of 57 decided to become the head of the American Zionist movement was more influential than anyone else in the 20th century in persuading Woodrow Wilson to recognize a Jewish homeland in Palestine. And just the magnitude of his influence becomes really great. So, that’s why I do—the last chapter of the book says WWBD, what would Brandeis do, and I think it’s just a fun and instructive thought experiment for listeners.
He can teach us so much about contemporary questions involving the economy and privacy and free speech and technology that I find it helpful to try to channel him at every opportunity.
Lithwick: And maybe I’m just restating what you’ve already said, but I think you’re pretty clear, and there’s a nice piece I should note in the Atlantic that’s an excerpt from the book that I would really commend, you know, everyone should run out and buy the book, but also this is a good shorthand of what you’re saying.
And it seems to me that one of the things that Brandeis would be quick to say is that these are not judicial fixes, right. These are fixes that far, far transcend something that the judicial branch can do. I mean, in that sense I think he was a big, big thinker. He was not afraid to say other institutions, other arms of government really have to have a role to play, too. And he wasn’t shy about saying, “Yes, I’m a justice, but these are not judicial problems,” right?
Rosen: That’s absolutely right. He did believe in the states famously as laboratories of democracy, to use that resonant phrase that Tea Party and conservative libertarians have embraced today because he loves state experimentation. But he’s so suspicious of bigness in government as well as business that he mistrusts even really top-down reforms at the state level. The most inspiring part of his legacy to me is his belief in the imperative and duty of self-education on behalf of citizens.
It can sound trite if you just say citizens need to be educated for democracy to work, but for him it wasn’t trite. It was really this strenuous challenge to citizens to use their moments of leisure, which he defined as time away from work, to collect the facts that were necessary for full democratic participation. And that’s why he insisted that public discussion was both a right and a duty as he put it in the beautiful Whitney v. Free Speech opinion, which is the greatest free speech opinion of the 20th Century, which I hope so much that listeners will just download and read. And that’s why he became for me such a personal inspiration. Whenever I felt tempted to, I don’t know, watch cat videos or bad Netflix TV instead of writing this Brandeis biography, I thought of his stern but kindly visage and buckled down and wrote the damn thing, because there’s so much information out there, and these are such anxious times in democracy, such unreasonable times. He insisted on the necessity of public reason, which he thought could only be achieved if all of us just take the time to inform ourselves about the best arguments on all sides of questions so that we can make up our own minds.
Lithwick: Jeff, I’m going to suggest that the other reason Brandeis is so salient for you is because some of the issues that he cared about most desperately are issues you’ve been writing about for a long time. And I’m thinking maybe chiefly about privacy and free speech.
I mean, these are sources of great anxiety, and even I think change over his career. So, talk a little bit about, you know, we’re at such an amazing moment right now in constitutional history where the anxiety over both of those issues, privacy and speech, is so central to what the Supreme Court is still thinking about. What would Brandeis say to where we are on how the court is thinking about both of those issues?
I know that’s just a vast question, but do you think he would say the court as it stands now is too speech-protective, too restrictive? Would the court say that they’re getting privacy right or wrong? I mean, he sent us down this path, and I wonder what your reflections are on what he would say about what the court does now when it tackles those two monstrous issues.
Rosen: Such a great question. Which why don’t we take them up, you know, first think about privacy and then free speech, because they are such big questions. And they conflict. And part of what makes the thought experiment so exciting and challenging is because WWBD—when interests of free expression on the one hand, and privacy or dignity on the other conflict as they are on campuses, as they are in Europe where there are efforts to restrict speech in the name of dignity—which side would he come down on? I argue in the book, and here I was very much influenced by a great book by the scholar Neil Richards called Intellectual Privacy, that Brandeis changed his mind on the proper balance between dignity and free speech.
He starts off in 1890 by writing the most important law review article ever on privacy called “The Right to Privacy,” where he basically says new technologies are threatening the dignity of celebrities with all these gossip papers, so you should be able to suppress truthful but embarrassing speech. Basically, it’s Hulk Hogan and it’s also the European right to be forgotten on the internet, which allows citizens in Europe to take down truthful but embarrassing speech.
But then he said I didn’t feel as good about this article as I thought I did. He becomes more interested in transparency. He says sunlight is the best disinfectant. And he comes in his spectacular opinion in the Olmstead case from 1928 involving wiretapping to believe that privacy and free speech don’t have to threaten each other, but can be mutually reinforcing. But he redefines privacy as the ability to control the expression of our unexpressed beliefs, thoughts, and emotions as he says in the Olmstead case.
Richards calls this a kind of an intellectual privacy. You can also think of it as a kind of cognitive liberty. But the basic idea is that when government has the power to surveil us and track us from door to door, or wiretap us, then it can inhibit the expression of our thoughts, beliefs, and emotions in a way that threaten political dissent, anonymity, and cognitive liberty. So, for all those reasons I think that to cut to the chase what would Brandeis have thought of NSA surveillance? I think he would have been troubled not only by broad data collection without a warrant, he would have insisted it was unconstitutional even with a warrant.
He says in the Olmstead case that when you have surveillance that can reveal an awful lot about our unexpressed thoughts, sensations, and emotions, a warrant won’t justify the search because the framers of the Constitution are centrally concerned about the general warrants or writs of assistance which allow fishing expeditions into the anonymous pamphlets of critics of King George. Warrants are bad things rather than good things. What you have to protect is the value, which is intellectual privacy, rather than focusing on the form which is trespass or a warrant or whatever.
So, I think even though the court is moving toward trying to translate the Constitution into a digital age, there was that wonderful unanimous decision that Chief Justice Roberts wrote saying you can’t search a cellphone on arrest without a warrant. But the court hasn’t decided whether or not, you know, a warrant will cure the search. I think Brandeis challenges all of the current justices. As he said, “If we would guide by the light of reason, we must let our minds be bold.” You have to take the values that the framers were concerned about and translate them into this new age.
And therefore I don’t think he would have had any trouble answering Justice Sonia Sotomayor’s excellent challenge in a case involving GPS surveillance. She said we need an alternative to this whole way of thinking about the privacy now which says that when you give data to a third party, you have no expectations of privacy. And Brandeis would have said nonsense, of course you have expectations of privacy because it’s intellectual privacy that has to be protected. That’s my attempt to channel him on some of those privacy questions.
Lithwick: Those are really thoughtful answers, and it leads me to ask you the question that I think post Justice Antonin Scalia seems most pressing which is what would Brandeis make of the I want to say slightly fatuous but certainly fun efforts to talk about speech or privacy in light of what Scalia’s originalist project, right.
What did Madison think of violent video games, right? What would the tiny little constable on the bottom of your carriage, how does that work as an analog to the GPS? Would Brandeis have had a lot of patience for some of those intellectual efforts to apply original meanings in speech and privacy doctrine? Or would he have just said, no, no, no, no, we don’t care what the tiny constable is doing. We don’t care what the framers would have thought of violent video games. Times are changing.
Rosen: I think he would have said we start with the framers but then we translate their values into our age. So, I’d say that Brandeis practiced a kind of a “living originalism,” to use the title of Jack Balkin’s great book. He said you start with the paradigm case, which in the case of the Fourth Amendment was these general warrants or writs of assistance, but you define it at a level of abstraction that you can take it into our age and make it our own.
It’s so significant that when he talks in his great free speech opinion about the values of the framers, he doesn’t talk about Madison and Hamilton and the people in the constitutional convention. He says in his Whitney free speech opinion, “Those who won our independence believed that the final end of the state was to make men free to develop their faculties.” And then he goes on to say, “Those who won our independence by revolution were not cowards.” He’s talking about Jefferson and the drafters of the Declaration of Independence, because he’s Jeffersonian, he’s reading this phenomenal biography of Jefferson over the summer of 1927. He believes in natural rights of speech and liberty and the right to pursue happiness.
So, for Brandeis, it’s not a technical question of channeling what would James Madison say. It’s how do we take these inherent human natural rights of liberty and translate them into an age of new technology. So, he would have not had any patience with that great debate which you’re right to kind of signal between Justice Scalia and Justice Alito about do you need a physical trespass into the home or onto the carriage in order to trigger the values of the Fourth Amendment.
Brandeis is concerned not about the means of invasion, but about the values that are being invaded. And that’s why in this amazing passage in the Olmstead case, he says, you know, “Ways may someday be developed by which the government without removing papers from secret drawers can reproduce them in court in which it will be enabled to expose to a jury the most intimate occurrences of the home.” He’s channeling this new technology, television, which he has a description of, but he misunderstands it as a form of two-way cameras—
Rosen: Surveillance. He’s basically anticipating Skype and webcams. So he takes out the reference, but he imagines a world where people can see each other through both ends of the screen and he says a far smaller invasion was a violation of the Fourth Amendment at a time when it took a physical trespass to rummage through people’s desk drawers. We need to protect the same amount of cognitive liberty in an age where you can invade people’s thoughts without physically intruding into their homes than you did at the time of the framing.
So, I think that’s his answer. And that’s why I think he’s a great model for progressive justices today who want to answer the originalists. It’s not that the original paradigm cases are irrelevant, but you have to focus on the values the framers were trying to protect, not on the means with which those values were invaded in the 18th century.
Lithwick: I want to turn for a minute, Jeff, to Justice Brandeis’s confirmation battle, only because it so happens that we find ourselves in the midst of, you know, the second yuckiest confirmation, or not-confirmation battle. I think we forget how drawn out and how racially, religiously tinged—you know, we like to believe each of these confirmation battles is happening for the first time. But Brandeis really suffered through a very unpleasant confirmation process. And I wonder if you’d speak to it a little bit. And then tell me whether it chimes with some of the conversations we’re having even this week about notions of fairness and race and religion and what it means to talk even about is a justice just too Jewish to be fair, which seems to be at least some of what was plaguing Brandeis at his confirmation mess.
Rosen: Yes. The historical resonances are sharp. Brandeis is nominated on Jan. 28, 1916. Confirmed on June 1. Waits 125 days between nomination and confirmation, which remains an unbroken record, although Merrick Garland will surpass it in July, if my math is right. But, you’re right, that anti-Semitism was definitely not the central reason for the opposition, which tended to focus more on his anti-corporate radicalism, but it was a theme.
Initially the papers said that the fact that he was picked because he was Jewish. The New York Sun said he’s the first Jew ever picked for the bench—a long and bitter fight expected in the Senate over confirmation. The claim was that Wilson was trying to win over the Jewish vote. In fact, he wasn’t even the first Jew considered. Millard Fillmore had offered a seat to Judah Benjamin. But then throughout the hearing there’s this sort of undercurrent of gentile antisemitism. Some accuse him of Old Testament cruelty toward his opponents.
William Howard Taft, who he embarrassed in these congressional hearings, attacks him as an emotionalist and a socialist and a cosmopolitan in terms that kind of have an anti-Semitic overtone. And even the pro-Brandeis press supported him in terms that really seem creepy today. There’s this piece from Life magazine. It says, “Mr. Brandeis is a Jew. And until now there’s never been a Jew on the Supreme Court. Perhaps it’s time we have one.” And then they said, “Back of the Jewish mind are traditions, impulses, values, aspirations, and feelings that are different from those of a man of another race and actuate thoughts and feelings which often perplex and sometimes displease observers.”
And the amazing thing is that that was an endorsement. They said, OK, nine Brandeis’s is too much, but one is OK. So, with friends like that, and so forth. But, yes, the idea that because he was Jewish he would rule a particular way was an ugly undercurrent of the hearings, which resonates with current claims that a judge can’t be impartial because of his or her background or ethnicity or race. It’s, I guess, a small comfort that in the end the Brandeis vote wasn’t close.
I mean, it shouldn’t have been, since it was a democratic senate and a democratic president. But it is a reminder of how far we’ve come and how far we haven’t come that Brandeis’s religion played such an important role in the debate.
Lithwick: And does it trouble you, I mean, I have to believe it troubles you deeply that we’re still having a conversation in America, you know, post–Sonia Sotomayor, post-Brandeis, post–O’Connor when we had it about gender, that there is some kind of set point.
There’s an objective place and it is white maleness, probably Christian white maleness in the Brandeis context, and that everyone else is just hobbled by bias. I mean, we’re still talking this way. In that sense, we can sort of white out the notion that there’s a Jewish way of thinking, but certainly I don’t think we’ve come all that far from the notion that any judge is biased if they come from any place that isn’t, you know, white Harvard, Yale, male, Christian America. I mean, that still really resonates, doesn’t it?
Rosen: It is troubling. And, of course, the tyranny of Harvard and Yale is another thing that transcends this problem of the set point. But what’s so striking about Brandeis is he had this vision of cultural pluralism that completely gave the lie to the idea that there was any inconsistency between being Jewish or being a woman or being African American and being fully American.
He started off by embracing the Theodore Roosevelt notion that hyphenated Americanism was unpatriotic. You couldn’t have dual loyalties. But then he thinks and he reads and he becomes the head of the American Zionist movement after having previously been a secular Jew in this amazing intellectual evolution. And he talks to his young acolyte, Horace Kallen, who wrote this beautiful book called Cultural Pluralism, and he comes to believe that by being better Jews, or better members of our ethnic group, we can be better Americans, because America is like an orchestra in which identity is defined by the diversity of perspectives that we bring to the table.
So, he actually changes his mind about women’s suffrage because he works with these brilliant women in the women’s suffrage movement like Josephine Goldmark, his sister-in-law, where he writes a Brandeis brief which convinced the court to uphold maximum hour laws for women by collecting all these facts and empirical evidence. And that brief inspires Thurgood Marshall to write his brief in Brown v. Board of Education. It inspires Justice Ginsberg, who I had the incredible honor of talking to for this book. She told me that she was inspired by Brandeis when she wrote her briefs about gender segregation. So, for Brandeis, you know, ethnicity and background are much less important than facts and reason. And he believes that far from wanting to efface our diversity of perspectives, we have to embrace it because that makes us more American, not less. In that sense, he’s incredibly modern in an age of cultural pluralism. And it is disappointing for just the reasons you say that not everyone has embraced his pluralistic vision.
Lithwick: Now, I feel that we have to get to the wah-wah part, Jeff. And the wah-wah part is Brandeis and race where you’ve described him as having a horrific blind spot. For somebody of his great openhearted intellectual heft and such a progressive hero in so many ways, boy, was he wrong on questions of race. And I wonder if you’d explore for a minute how you square that with Brandeis who is a hero in so many other ways.
Rosen: It is, I love—wah-wah is an excellent way to put it—
Lithwick: That’s my sound effects team. My amazing Amicus sound effects team.
Rosen: He had a blind spot on race. No question about it. And he was not a racist like Woodrow Wilson. Unlike Wilson, he did not support the segregation of the federal government. He was personally courteous to African Americans. He advised them and advised the head of Howard University to create a good law school. And that inspired Charles Hamilton Houston and Thurgood Marshall in their path-breaking work on behalf of desegregation.
But in the book, I candidly and frankly admit and lament the fact that he was essentially AWOL on race. He was silent in all the cases that came before him when he was on the court involving race. He silently joined the majority. Now, some of these cases were pro–racial equality, a minority of them. Most of them were not. But he just doesn’t take a leadership role at all. And that contrasts dramatically with his incredible crusading opposition both to economic inequality and his eventual embrace of women’s suffrage.
So I ask, why was he AWOL on these questions? It’s not as if all Jews of his era were. His beloved uncle, Lewis Dembitz, was an ardent abolitionist. His mother was an abolitionist in Kentucky at a time when Brandeis remembered hearing the shot from the confederate soldiers after the second battle of Bull Run. Amazing to think that he heard that and I studied with one of his last law clerks in college. And that encapsulates almost all of American history.
So why was he AWOL? My maybe lame or armchair hypothesis is he didn’t work closely with African Americans. What changed his mind about women was that he worked closely with these brilliant women who impressed him so much that he said, “Hey, I used to oppose women’s suffrage and I’ve come to support it because these women have convinced me that we need full gender equality for full democratic participation.”
And he never had the opportunity—or he never sought the opportunity I should say—to work closely with African American lawyers. He was also a Southern Democrat, you know, at a time when both parties were supportive of segregation. We shouldn’t let the Republicans off the hook. Theodore Roosevelt, we learned from Jeff Cowan’s new book, was just as bad as certainly Brandeis was, or many Democrats were on the question of segregation.
But it’s unfortunate that Brandeis was not able to translate or abstract his devotion to cultural pluralism and racial equality as he put it for Jews to enslave people and their descendants and to African Americans. So, Justice Jefferson has a blind spot on race. You know, more than a blind spot. A terrible blemish on his legacy, slavery, for which he’s properly excoriated. So, I think Brandeis has done this as well.
Lithwick: I need to ask you this question only because I’ve known you long enough to know that one of the things that most moves you about Brandeis is the stylist, the writing. I mean, this is just somebody whose writing could peel paint.
And on a court full of great writers, I shouldn’t say full of—there have been some bad writers on the court over the years. But certainly I think he stands out as one of the great, great writers in judicial history. And I ask you this question only because we’ve just lost a great writer in Antonin Scalia. What does it mean beyond just the technical, the Brandeis brief, you know, his ability to persuade? But what does it mean for history that Brandeis had such a way with words? An ability to craft a phrase, but also an ability to write in ways that really border on poetry?
What does that mean in terms of this craft of writing at the court and is it lost? Are we losing it?
Rosen: We both care so much about writing and you’re such a great legal writer. And for me, what is so inspiring about Brandeis’s writing is he saw it as a tool for democratic education. He would say things like the opinion is now convincing, now can we make it more instructive, after he’d gone through ten drafts. And I say in his prose as in his politics, Brandeis is a democrat. It’s so striking to me. When I was in law school I was taught that the great writers were people like Holmes and Cardozo. But you go back and read their prose and it’s sort of perfumed and very ornate and show-offy. And they’re constantly striving for these abstractions that seem archaic nowadays.
Brandeis is writing directly to us. His clear voice comes through a century and he’s speaking to us and he’s galvanizing us and he’s persuading us. And that’s why I love to read the prose. I’m going to read two sentences, so I don’t go on too long. But just look at Whitney. “Those who won 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 believe liberty to be the secret of happiness. And courage to be the secret of liberty.” That’s almost a direct quotation from Pericles’ Funeral Oration as translated by Alfred Zimmermann in one of Brandeis’s favorite books, The Greek Polis.
But Brandeis improves the prose. He simplifies it and perfects the balance of the sentence so it becomes even more memorable and aphoristic than the Periclean original. And he’s doing this not to show off, or not because he thinks that writing is some aesthetic craft, but because he’s trying to persuade his fellow citizens of the correctness of his position and the necessity of democratic education. And that’s why I find him so exciting and inspiring because he’s teaching us—good legal writing is not a matter of taste, it’s a matter of connection with fellow citizens and of democratic education.
So, he really inspired me to write this book. It was a crazy deadline. The editor said I’d miss the hundredth anniversary unless I pumped the thing out in six months, because I’d been delaying and dilly dallying for so long. So he both inspired me to get up early and write. But as I wrote the book, I tried to write it as clearly and directly and passionately as possible just thinking of communicating to readers who might want to learn about this great thinker and be inspired by him as I was.
So, for all those reasons, I like Brandeis’s writing very much.
Lithwick: I feel like we got that. I think you just launched a rash of nerd goosebumps out there in the podcast sphere. Jeffrey Rosen is the author of the brand new book, Louis D. Brandeis, American Prophet, and he is the president and CEO of the National Constitution Center in Philadelphia. Jeff, I cannot thank you enough. It has been really fun to have you on the show. And everybody needs to listen to our Panoply sister podcast, We the People. That is Jeff Rosen’s podcast. And please come back again.
Rosen: Thank you so much, Dahlia. Please come to We the People. Can’t wait to see you at the Constitution Center soon. And thanks for a phenomenal conversation.
Lithwick: And so we briefly reprise the sound of wah-wah. As we say, that is it for this episode of Amicus. But, we are eager to hear your thoughts. You can always send them to us at Amicus@Slate.com. We truly love getting your letters. We also love the reviews of Amicus that you’ve been leaving on our iTunes page.
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Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/Panoply. I am Dahlia Lithwick. Thank you for listening and we’ll be back with you in just a couple weeks with another edition of Amicus.