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Kagan and Urofsky share admiration for Justice Louis Brandeis

“My favorite justice, beyond a doubt, it’s Justice Brandeis,” Justice Elena Kagan said last night at the Supreme Court (“of justices she never met personally,” she qualified). Kagan occupies Justice Louis Brandeis’s chair at the court, which she inherited from Justices William O. Douglas and John Paul Stevens. Noting that only four justices sat in that chair over the course of a century, Kagan joked that she hopefully calls it the “longevity chair.”

Kagan admires Brandeis for much more than his lucky chair. Last night, she had special praise for his writing (a talent that has brought approbation to Kagan herself). In Kagan’s words, Brandeis “married style to great analytic power”; he was “very grounded, even at his most visionary,” and he was “always connected to facts.” Marked by a “feel” for American history and “prescience” about America’s future, Brandeis’s opinions communicate to Kagan a “deep and abiding wisdom.”

As the “best way to celebrate” Brandeis, Kagan read from her “favorite Supreme Court opinion of all time” – Brandeis’s concurrence in Whitney v. California, which Kagan commended for identifying the First Amendment with the “deepest values of American civil life” through its “purpose,” to “develop the faculties of citizens for democracy.” (The text Kagan read is reproduced below.)

Kagan introduced Melvin Urofsky, who delivered a lecture on the centennial of Brandeis’s appointment to the court sponsored by the Supreme Court Historical Society. When Urofsky reached the podium (not the lectern advocates use during oral arguments, which was left facing the empty bench), he teased, “Justice Kagan just gave my talk.” Indeed, Urofsky – who has written a 953-page biography on Brandeis and has devoted decades to studying him – seemed to admire qualities in the man similar to those Kagan had praised.

Urofsky opened by recalling a visit to former Harvard Law School professor Paul Freund, once a Brandeis clerk. Freund told Urofsky that to understand Brandeis – lawyer, activist, judge – one needed to recognize that his was “a mind of one piece.” This insight informed Urofsky’s whole speech, which focused on four elements – legal craftsmanship, the art of dissent, free speech and privacy.

Echoing Justice Kagan, Urofsky emphasized Brandeis’s attention to the facts in his writing. “If I get the facts right, it will be harder to counter the legal arguments,” Brandeis once said of his approach. Prior to his judicial career, Urofsky explained, a period in which Brandeis “pioneered” the practice of pro-bono legal work, he wrote the first so-called “Brandeis brief,” one that focuses on scientific information and social facts in addition to legal citation – in the case of Muller v. Oregon, on the detrimental effects of working long hours.

Urofsky noted that although Brandeis wrote 450 opinions for the court, he wrote only 74 dissents, an average of three per term – “Oh, but what dissents they are!” Urofsky explained Brandeis’s approach to writing dissents, in which he did not have to tailor his message to the majority but could express his own views more directly, with an anecdote: Harold Laski, a political theorist, once joked with Justice Oliver Wendell Holmes that Brandeis should understand that dissents “aren’t legal briefs.” And yet, for Brandeis, that’s precisely what they were – an opportunity to convince the majority and the American public, if not immediately, then at some time in the future. According to Urofsky, former clerks have attested to Brandeis’s long-term, didactic aims; he would say about a draft dissent, “I think it’s now persuasive, but what can we do to make it more instructive?”

Brandeis carefully chose which decisions to oppose so as to not weaken his effectiveness by dissenting too often – even to the point of suppressing dissents already written, by him or another justice, after persuading the majority to make a change. Urofsky quoted Justice Ruth Bader Ginsburg, who was in attendance, as saying “I hope I will be granted similar wisdom in choosing my ground.”

Urofsky’s lengthiest discussion about specific elements of Brandeis’s jurisprudence involved free speech. Urofsky acknowledged that free-speech doctrine from the Brandeis era is most often associated with Holmes, who authored such memorable phrases as “falsely shouting fire in a theatre,” “clear and present danger,” and “free trade in ideas.” Holmes had a philosophical bent, according to Urofsky, which led him to make generalizations about the social and political value of debate. However, Holmes’s approach created what Urofsky called a “somewhat subjective standard” – different judges could come to very different conclusions about what constitutes a “clear and present danger.”

Brandeis, though often joining Holmes’s opinions, wanted a less open-ended standard, Urofsky contended. Of his vote in Schenck v. United States, a 1919 case in which Brandeis joined Holmes’s opinion upholding a conviction under the Espionage Act for distributing leaflets advocating draft resistance, Brandeis said, “I thought at my subject, rather than through it.” Brandeis would later come to value free speech not simply as a mechanism for debate, but as a vehicle for instilling civic virtue. As Urofsky explained, for Brandeis the highest office in a democracy belongs to the citizen, a role which carries both rights and responsibilities. To fulfill these responsibilities – including voting, attending hearings, and joining interest groups – a citizen must have knowledge that can only be gained from the free exchange of information and ideas.

Urofsky highlighted the same opinion that Kagan had read from earlier in the evening, Brandeis’s concurrence in Whitney v. California. The reason the opinion is not a dissent, Urofsky clarified, is because the court could not directly reach First Amendment claims that had not been raised in the lower courts. The opinion is nonetheless “the best example of what a dissent can do,” Urofsky quoted Harvard Law School professor Mark Tushnet as saying. According to Urofsky, this concurrence was far more influential than Justice Edward Sanford’s opinion for the court, which the Warren Court overturned in 1969 in Brandenburg v. Ohio, establishing a First Amendment test for government regulation of inflammatory speech derived from Brandeis’s distinction between advocacy and incitement to violence.

Urofsky closed with a discussion of privacy, a contentious area of constitutional law in which Brandeis’s thinking has also been seminal. In 1890, Brandeis wrote with Samuel Warren an article for the Harvard Law Review entitled “The Right to Privacy.” In that article, Brandeis and Warren connected privacy to the common law’s traditional protections for person and property, old principles that have been broadened over time to accommodate developing social conditions. A “right to be let alone” was the next step, they argued.

Thirty-eight years later, Brandeis had a chance to turn the common-law principles laid out in this article into constitutional law in Olmstead v. United States, which involved a Fourth Amendment challenge to an FBI wiretap of a suspected bootlegger during Prohibition. In what Urofsky considers a “wooden” majority opinion, Chief Justice William Howard Taft held that FBI agents did not need a warrant for the wiretap because they never entered Roy Olmstead’s house. In his dissent, Brandeis recast the Fourth Amendment from a protection focused solely on a person’s property to one centered on the affected person himself. Brandeis would not live to see a majority of the court adopt his views, as the Warren Court did when it overruled Olmstead in Katz v. United States in 1967.

In Urofsky’s characterization, many of the majority opinions from the 1920s and 1930s have been relegated to the “dustbin of history.” But not those of Brandeis, whose words resounded yesterday in the Supreme Court chamber:

Those who won our independence believed 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; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that 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 counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed 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 witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant 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 incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. 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.

Recommended Citation: Andrew Hamm, Kagan and Urofsky share admiration for Justice Louis Brandeis, SCOTUSblog (Oct. 20, 2016, 4:39 PM),