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tv   Life and Legacy of Supreme Court Justice Louis Brandeis  CSPAN  November 13, 2016 8:55pm-10:01pm EST

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recent oral arguments heard by the court this term and click on the view all link. in addition, you can find recent appearances by many of the supreme court justices or watch justices in their own words, including one-on-one interviews in the past few months with justices kagan, thomas, and ginsburg. there is a calendar for this term, a list of all current justices with links to quickly see all of their appearances on c-span as well as many other supreme court videos available on demand. follow the supreme court's at c-span.org. >> president woodrow wilson nominated boston attorney louis brandeis to the united states supreme court on january 28 of 1916. in june of that year, he became the first jewish person to sit on the nation's highest court. he served until 1939. american history tv, in commemoration of the 100 anniversary of his nomination,
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urhing are asking, -- melvin ofsky, author of "louis d. brandeis: a life," on next. this is about one hour. [applause] >> justice kagan wears many hats this evening. we are very grateful to justice kagan for being the host of the delightednd we are that justice ginsburg is here as well. this society depends on the justices of the report and they have been most generous. otherwise, we would have to hoste to -- unable this. thank you for your generosity and support. i do offer just a brief introduction for justice kagan, and she will be introducing our lector or this evening.
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justice kagan was born in new york city and received her undergraduate education at princeton where she graduated summa cum laude. visited oxford university as the graduate fellow from princeton and she earned her master's degree there. she returned to harvard law school, graduated three years cloudy, after being the supervisor of the madam law review, then distinguished clerkships. she was thurgood marshall justice of the supreme court. after her clerkship, she practiced law for several years. then she abandoned the practice of law at the call of the academy.
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justice kagan: she spent four years at the university of chicago as a professor of law. then, service to the president. she served as associate counsel to bill clinton and later as deputy director of president clinton semester policy council. then, back to the county. she began as a visiting professor but they decided they liked her pretty well, so she became a permanent member of the faculty there. in 2003, she was named the 11th dean of the harvard law school. 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 an associate justice of our supreme court and she was
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confirmed. do you remember those days? [applause] justice kagan: importantly tonight, when the court is in session, justice kagan sits in the chair, the same as did louis -- we are very grateful to justice kagan and i ask you to , join me in welcoming our host for the evening. [applause] justice kagan: thank you for that gracious introduction. when something gives an introduction like that i always think, "what is the matter with that woman, can't she keep a job?" thank you to the historical society for all of that you do for the court. i mean these programs that you , run are a terrific boon to the court and for the public.
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so we thank you for all of your great work. and thanks to louisville law school for joining in in the this tonight in celebration of justice louis brandeis, and welcome to his family members. i did not realize that you would be here. you are very welcome always, to come visit at the court. as was said, i do sit louis brandeis' chair. the justices sit in the chairs in a direct line. and so, my chair, there is me and then my predecessor, justice stevens and the justice before , that was justice douglas, and the justice before that was justice louis brandeis. thatour justices in
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hundred years since justice brandeis was confirmed. --all it -- knock, knock longevity chair. it is an honor to sit on this court, obviously. it is a special honor for me to sit in this particular chair, to be given this chair. because truth be told, i know you are not supposed to have favorites, but excluding all of the justices whom i have known personally, ok? if you ask me who my favorite supreme court justice is, i would say beyond a doubt, it is justice brandeis. why is that? i was trying to think of how to explain this. he is for one thing, one of the greatest writers on the court, you know one of the three or , best writers. fourbut it is not style alone
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with justice brandeis he married , style to this great analytic power, analytic force in his opinions. he was very grounded, even at his most visionary, and he did have visionary moments. it was always connected to fact. he was very attached to a certain kind of empiricism. that is in all his decisions. he had a real feel for american history. certainly, the founding moment and the commitments for the founding moment but also the way , that commitments played out through time. building a force through history, and progress. he had a great vision, a vision of what this country was and what it could become. and when you read his opinions, all of that, when put together, his opinions are quite astonishing often in their , impressions.
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if you read his dissent for example, i do not think there is a better piece of writing about the hazards of surveillance state, his opinions are imbued with a deep and abiding wisdom. rather than just saying all of these things about those opinions, i should give you a sample. and of course, professor u rofsky is really going to talk about louis brandeis and the life he led and what made him great. but in this celebration, i think the best way to celebrate justice louis brandeis is to actually just read louis brandeis. so i will give you my favorite supreme court opinion of all
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time of all time. , this is his concurring opinion in whitney, which was a first amendment case. people know, first, people know about holmes in the first amendment. it is his name that comes to mind, the marketplace of ideas. those were incredible phrases and opinions that they were in -- they were incredible opinions. but in my view, the opinion that gets the most at the first amendment and why it is so important to our nation, is the opinion in whitney versus california. because it is in this opinion, what the justice does is really he connects it to the deepest values of american civic life. he talks about how, what the first amendment does, the purpose of the first amendment is ultimately to develop the
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faculties of citizens in order to participate in american democracy, and it is the beauty of that commitment is mere word mirrored and is brought out by the beauty of his prose. and i thought i would read some of it. i warn you, it will go on for a few minutes. it is about 2.5 long paragraphs. this is the best way to celebrate justice brandeis is to read justice brandeis, so here it is. "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 as an end and as a means. they believed liberty to be the secret of happiness and courage to be the secret of liberty.
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they believed that freedom to think as you will and because you think are means indispensable to the discovery and the spread of political truth. that without free speech and assembly, discussion would be futile. but with them, discussion of ford's ordinarily adequate protection against the dissemination of noxious doctrine that the greatest , menace to freedom is an inert people. the public discussion is a political duty and this should be a fundamental principle of the american government. they recognized the risk to which all human institutions are subject. that they knew that the order could not be secured merely through fear of punishment of its infraction, but that is hazardous to discourage hope and imagination, that fear breeds repression. that repression breeds hate.
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that hate menaces a stable government. that the path to safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. and that the fitting remedy for evilr ill -- remedy for councils is good ones. believing in the power of reason is applied to public discussion, eschewed silence by law. the argument of force in its worst form. recognizing the occasional tyrannies of governing majorities, the amended the constitution so that free speech and assembly should be guaranteed. fear of serious injury can not alone provides suppression of free speech and assembly. men feared witches and burnt women. it was the function of speech to freemen from the bondage of the irrational fears. those who won our independence
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through revolution were not cowards. they did not fear political change. they did not exult order at the cost of liberty. the courageous men, with confidence in the power of fearless reasoning, applied to 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 the opportunity of full discussion. if there be time to expose through discussion the full 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 role of authority if it is to be reconciled with freedom. such in my opinion, is the command of the constitution." pretty great, huh? [applause]
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justice kagan: to celebrate him, we have the great scholar of our time, of any time, professor melvin urofsky. professor urofsky has written 52 books and you'll be glad to know that i will not list them all. but among them is the definitive biography of louis brandeis, as well as many volumes of the brandeis letters which are fun , to read. his latest work is called "dissent in the supreme court." i know that that work is in part inspired by justice brandeis. so i give you so i give you professor urofsky. [applause] mr. urofsky: we are finished
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because justice kagan just gave my talk. [laughter] mr. urofsky: justice kagan thank , you for the introduction. justice ginsburg, i am so glad you are here. this is the 100th anniversary of the nomination and confirmation of louis brandeis as an associate justice of the united states supreme court. despite all of the slurs thrown at him during a four-month confirmation battle, especially the charge that he lacked judicial temperament, today he is considered on every poll as one of the three most influential justices ever to serve in our nation's 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 when i first started working on louis brandeis, i went to harvard to visit one of his former clerks. paul fry's office was piled from
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floor to ceiling with books, papers, exam booklets and as i discovered after his death, unanswered letters and unsigned messages. the professor cleared a chair for me by dumping a pile of papers from that chair onto another chair. and for the next hour, we talked brandeis, a topic he relished. and some insights he shares have that he shared with me that they 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, titled a book of essays on him, as a mind of one piece. what he meant, and as i have learned he was right, you cannot divorce one of the man's activities from the others. you could not for example look at his work as a lawyer separate from his career as a reformer or
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a judge. so for taking a closer look at , his judicial legacy, let's take a few moments to work at two of his other careers, lawyer and reformer. his zionist activities, by the way, also fit into the mind of one piece construct, but that subject cannot be covered in a few minutes. brandeis entered law at a time when the profession underwent a -- 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" or type of thing. you went after the event. the building a railroad or a department store cost a lot more than a horse, and it opened the enterprises to a host of laws which one ignored at one's peril. so now, businessman went to the lawyer before the event, to find out what they had to do to avoid future legal problems.
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the new lawyer therefore had to know not only the law, but business as well. the main function was to keep the client out of court. whenever brandeis took on a new client, the first thing he would do was go to the man's business and learn all he could about it. many of his clients said that he 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 and advisor and to fulfill the responsibility, he declared he had to know all of the facts that surround, that was his quote. "all of the facts that surround." both opposition lawyers and clients marveled at his knowledge of even the most arcane aspects of business and
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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 marshaling effects, over 100 pages of them, in his work in 1908, that showed reformers how they could overcome the antipathy of conservative judges to progressive measures. ever since, defenders of new ideas have utilized the so-called "brandeis brief" to serve as legitimacy for a reformed proposal. he took no money for his legal work, as a reformer, and pioneered in making pro bono work an accepted part of an attorney's life. the other aspect of his reform work is also tied to facts.
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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' problems, so he figured out solutions to the boston gas consolidation, the savings bank life insurance, and the great garment workers' strike. one final note on his reform activities. he understood the political nature of government and he did , not fear it. he believed it was necessary in a democratic society. he put together what is probably the first people's lobby to pressure the massachusetts legislator into an acting savings bank insurance. ed he learned the -- and he
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learned the little tricks as well. one time, when he came to testify about insurance to a committee, he found the room practically empty and the committee members not particularly attentive. he did not know why. 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 legislator's district in the audience and from then on, he had their attention. in january 1916, woodrow wilson nominated brandeis to the court and after one of the most contentious confirmation hearings in history, the senate confirmed him in june. he would serve until he retired in february of 1939. there are so many amazing aspect of that 23 year career that it would take me a course to examine them closely. i say this from experience since i have more than one sort
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of course in the supreme court in the age of holmes and brandeis. so this evening, let us look at a few areas and take my word that there are more. and for those interested, i can recommend what i think is a fairly good book. [laughter] mr. urofsky: and it is available in the bookstore downstairs. [laughter] mr. urofsky: 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 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. today, and at that time as well many justices relied on their , clerks to draft the first section of an opinion, the part
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that recounted the facts in the case. brandeis did it himself because as he explained to one clerk, if i get the facts right, 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 clerks, james landis and , asked if he had checked to make sure that two statements of draft were indeed correct. landis had it not, in assuming that brandeis would be right. "sunny, we are in this together," the justice said. "you must never assume i know everything or that i am correct in what i say, that is why you are here. let's not have this again." [laughter] another clerk, dena addison had cited some cases in , his memorandum to the justice and realized something was very wrong, when brandeis came in and put two volumes of state reports
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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, the clerk realized they had no bearing on the case at all. he began to apologize, but the justice dismissed the matter. "please remember that your option is to correct my errors, not to introduce some of your own." [laughter] mr. urofsky: brandeis also used clerks as sounding boards and welcomed their solutions 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 hands. one of brandeis's most influential opinions is neither for the majority or in dissent. but it has influenced judges for eight decades, and that is his
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concurring opinion in ashland ashwinder versus tennessee valley authority for 1936. in it, he 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 who came up with these rules. "do not anticipate questions of constitutional law. do not decide constitutional questions unless absolutely necessary. always construe a statute as liberally as possible in order to support the constitutionality. if there are both constitutional and other reasons upon which to base a decision, always choose the nonconstitutional." there are 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 anyone branch from exercising power beyond its prescribed prudence.
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recall that brandeis wrote the majority opinion in railroad the tompkins in 1938, the only case i am aware of in which the court had a prior decision unconstitutional. although as we shall see and have already heard, brandeis could write eloquently when necessary. for the most part, his opinions are straightforward and clear. the reader, whether he is a lawyer, lower court judge or a law professor or a layman understood exactly what he meant. robert h jackson, one of the great justices of his time, believed that some of brandeis's lasting work came in those cases when he spoke for the court in interpreting what jackson called "the great life-giving pauses of -- life-giving clauses of the constitution."
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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 nobody on the court affected the field of antitrust law more than brandeis. if we look at his decisions on the chicago board of trade and the oil cases, we can see someone whose thinking evolved far beyond what he espoused in the progressive era. it is brandeis that devised key standards for a modern antitrust law, such as 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 a foreman that "when mr. brandeis writes an opinion
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dealing with the federal practice, the law is settled for 50 years to come." while this could be 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 explicated. holmes wrote short, pithy opinions as well, but they do not have the impact that his colleague had. when i was in law school in the 1980's, i was not surprised to to find -- surprised to find brandeis' opinions in casebooks on constitutional law or the first amendment. but he was everywhere. administrative law, federal court, antitrust, commercial law. since i did not take admiralty law, i cannot testify as to whether he was there as well, but i would not be surprised if he were. the next thing i want to look at is the art of dissent.
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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 the project and in my eyes he will always be , the great dissenter. in terms of dissenting, over the course of his tenure, he wrote 454 opinions for the court and only 74 dissents, that is an average of a little more than three dissents a term. but oh, what dissents they are. we will look at two areas where brandeis' dissents determine the future course of constitutional jurisprudence. when speaking for the court, brandeis, like all justices, had to tailor his opinions to reflect the views of the majority. here, his work as an attorney played an important role, because he had the ability and skill to marshal the facts and
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set out an interpretation of the law, sometimes a new one, that commanded a majority. when writing a dissent, however, he felt no such compunction, and in his 74 dissents, we find all of his characteristics, attention to the factual situation that the legislator had relied on, the necessity of -- to defer, the attention to individual liberties, and especially the role that speech played in a democratic society. his lengthy dissents led the political scientist harold lasky to suggest to his friend holmes to say, "if you could hint to brandeis that they should not be written in the form of a brief, it would be a great relief for the world." he missed the point. the dissents are legal briefs. brandeis briefs, written to explain to the bench, the
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academy, the bar, and public why the majority had erred. brandeis intended them to be convincing and they needed to be factored. in 1924, the court struck down a bill establishing standard wage for 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 more than twice as long as the majority opinion, and there is 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 work capricious. or
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knowledge is essential to understanding and understanding should precede judging. sometimes, if we were guided by the light of reason and we must let our minds be bold." he then gave a long and detailed history of breadmaking, the regulation thereof, and insured far more than we ever want to know about the business. holmes joined in, calling the a word nowhere to be found, and told frederick pollock that brandeis had written a good the second showing the profound study of the art of breadmaking. 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. the bakery case opinion, like
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all of brandeis' dissents had the aim of teaching, of explaining why and how the majority had erred/ . a number of clerks report a similar story. after the justices had it labored over a dissent, brandeis would then say, "now i think the , opinion is persuasive, but what can we do to make it more instructive?" brandeis took this role of teacher seriously. and when it comes to judicial dissent, i believe he is a n acknowledged master. holmes often seemed more concerned with philosophy than with jurisprudence. douglas, who took brandeis's seat 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
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only soul i have to save is my own. brandeis chose carefully which opinions he would oppose knowing , that one has to weigh the effect of the dissent on the relations with the other justices. "there is a limit to the frequency with which you can dissent without exasperating men." so he said, sometimes i endorse an opinion with which i do not agree, i acquiesce, or shut up. there might be an important case with which you want cooperation, so you do not want to antagonize other justices on a less important case. if a judge dissents to often, then the public and bench will not pay attention and they will not recognize when an important
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dissent comes down. louis brandeis even went so far as to stress that the sense dissent already written when he could persuade the majority to modify a ruling. justice ginsburg has said and others have commented on the practice, she said that "in the years i was privileged to serve on the court, and hope it will be granted similar wisdom in choosing my ground." brandeis wrote to educate and he hoped to teach his brethren come understood success would be a rare thing. so he kept collegiate relations with them and worked on educating others, especially lawyers and teachers. he looked to the future. and he said, my faith in time is great. there are two areas i want to look at more closely. his legacy in free speech and privacy. first amendment jurisprudence begins in 1919 when a series of
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cases testing wartime restrictions came before the court. until then, in some speech cases, the court had heard and accepted the old rule that while there could be no prior restraint, once a person has published something could go the government, the bad tendency, then that person could be prosecuted. while this rule earlier had it lead to the execution of the speaker, at the beginning of the 20th century, the punishment was imprisonment. during world war i, the wilson administration passed laws that went back to the alien restriction acts of the late 19th century. designed to punish people that had the temerity to criticize the american government for going to war or urging young men
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not to submit to the draft. the first case, shank versus the united states, appealed the conviction of the general secretary of the socialist party for printing pamphlets attacking the draft. holmes 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 any time of peace will not be entered so long as men fight. holmes and then lay down the clear and present danger test, the question is whether the words used in such circumstances are of such a nature to create a clear and present danger that they will bring about evil, that congress has a right to prevent. this was actually a more speech protected test than the old notion of bad tendency. and it became the standard that courts would reduce in the next -- would use in the next century. he immediately caused consternation among free-speech advocates who recognized how subjective it was.
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in the hands of conservative jurists, anything that questioned the status quo are criticized the free enterprise system, could be considered clearly and presently dangerous. brandeis joined the court in shank, but as he later said, i have never been quite happy about my concurrence. i did not think the issues out. i thought at the subject, not through it. thinking at the subject, meant relying on a state of the 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, he and holmes wear them bothered -- were bombarded with -- far more than the shake opinion a lot. and during abrams versus the united states, the two men took
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a step toward endowing the speech clause with all the vigor the framers intended. the majority of the -- convicted him for publishing leaflets calling for a strike to protest american intervention in russia. justice park mechanically applied the clear and present danger test and completely dismissed the first amendment claim. holmes penned what may be his most famous dissent. he has no use for the ideas that abrams put forth, because of the danger and another believes should never have been taken into consideration. the first amendment has been designed to support the free exchange of ideas, not their suppression. "when men have realized that time has upset many fighting days, they may come to believe that the ultimate good desire is better reached by free trade and ideas, that the best is the
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power of thought, to get accepted into the competition of the market. and truth is the only ground to which their truth -- which is could be carried out. it is an experiment, as all life is an experiment or cope -- experiment. although brandeis joined him, he remained uncomfortable with his approach. he was thinking his way through the problem. thank you. [laughter] holmes never abandoned clear and present danger, he just wanted the courts to punish action, not ideas. even holmes dissent and abrams, it did not get a web ring is considered the real issue. namely the place of and imports of free speech in a democratic society. holmse always saw himself as a philosopher and his notion of
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ideas competing in the market is a wonderful trope for philosophers, but not for judges. one of the functions of this court, the supreme court, is not only to decide cases but to set down the rules and reasoning to guide lower courts. so holmes allowed to much subjectivity and gave lower courts no guidance in establishing criteria for the first amendment protections. brandeis began working on this problem in a series of dissents culminating in the greater opinion in whitney versus california. he labored on the one difficulty, because he had joined abrams and holmes, and because homes hadn't joined him in subsequent cases, he cannot just dispose of the clear and present danger. but he gave himself room to maneuver and in one case in
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which homes -- holmes joined him, he described clear and present danger as a rule of reason. he seemed to have got to where he wanted to be when the court heard the case of another political radical, rutenberg versus michigan. he and his clerk prepared a powerful dissent, but before the opinion came down, rhythm bird died -- rutenberg died in a chicago hospital. brandeis filed away the dissent, but soon afterward had a chance to dust it off, polish it and to deliver what some scholars believe to be the greatest dissent ever written. police arrested her under a criminal syndicalism act in 1919, for helping to organize the communist labour party.
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whitney denied at her trial that the commonest group ever intended to become an instrument of crime and the state never offered evidence that she or the party had engaged in active violence. but such was the temper of the country during the red scare that the trial court found her guilty. and because her lawyers relied on the due process clause in their argument, they held the cause -- clause did not hold the liberty to destroy order. because of technical issues, brandeis chose to concur rather than dissent. at her trial, whitney's lawyers failed to raise first amendment claims, so the court could not reach the first amend the -- amendment grounds. but because the court never fixed the standard by which to determine when a danger shall be
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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 a restricted interpretation of the free speech. in a study of great dissent, a professor said that this is the best example of what we have of what a dissent can do. i knock my brain dies thought it -- by now, brandeis had thought the issue through. 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 courage, summed up his ideas not only on speech but also on the nature of democratic society. in it, he achieved and eloquence
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rarely matched and now i can 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 a citizen. citizenship however, connotes not only writes but responsibilities as well. chief of which is participation in determining matters of public policy. one does this by voting, by attending and taking part in minutes of full state and federal legislation hearings, by writing articles or letters to editors and by joining interest groups. but in order to carry out this responsibility, a citizen have -- has to have knowledge. knowledge must proceed judgment. be able to hear all sides of the question. the first amendment not only protects the right of people with unpopular views to speak,
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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 law. its influence can be seen in the powerful first amendment opinions later written by hugo black, william douglas, and john marshall the second. gradually, the court abandoned the bad tendency standard and also moved away from clear and present danger test. although, the test continued to be used in the 1940's and 50's, the court abandoned it in 1969 when the court unanimously overturned in ohio law very
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similar to the california one that had ensnared miss whitney. and the court said, that the majority opinion in whitney had been thoroughly discredited by later decisions and in their concurring opinions, who go black and william douglas emphasized the one point, that clear and present danger no longer had any place in first amendment jurisprudence. brandeis's opinion continues to be cited in the dialogue over the meaning and especially the extent of first amendment protection. and also to the notion that the speech clause favors more rather than less speech. in a 1980 case, justice stevens and blackman and justice rehnquist, they all cited the concurrence as a standard for free speech adopted by the court. in june 2011, justice kagan cited her predecessor's opinion
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to the proposition, that the free speech clause always favors more speech rather than less. regarding privacy, there has been a large controversy over whether or not the constitution includes a right to privacy. hugo black set the tone in a 1964 case, he said, i like my privacy as well as the next one, but i am compelled to admit that government has a right to prove -- invade it. brandeis started this in 1928, with his dissenting opinion in homestead versus the united states. but his interest in privacy goes back further. in 1890, he and his former law partner samuel warren, wrote about the right to privacy in an article in the harvard law review, that would be the most cited law review article, until after world war ii. now, in 1890 we are not talking
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about a constitutional right. they had limited resources on which to rely, but they made the most out of old rules, such as unauthorized use of reproduction. the article begins with the following claim. that the individual shall have full protection in person and property as a principal as old as common law, but has been found necessary from time to time, to deliver the extent of such rejection. -- of such protection. they suggested that over time, the society matured and ideas such as the right to life and 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 and be let alone. in this paragraph, we have a preview of what would make brandeis a successful lawyer and
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influential reformer and gray justice. one has to taken 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 they could create new rights. he did believe in a living constitution. although brandeis claimed, even at the time that he undertook the article, only because of --, he apparently never forgot about it. and when the homestead case came before the supreme court, he seized the opportunity to champion a right to privacy, based not on common law, but on the constitution. when i teach this, i always say that it should be a case study. at the harvard business school. roy homestead was a policeman during prohibition and
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recognized that a lot of money could be made from selling liquor, only if somebody had a good business plan. he resigned from the force and got friends to invest and then had a thriving business going. they did not make boot leg liquor, they had boats that brought the good stuff in from canada. they bought a farm and used the barn as a warehouse. i should note that the only thing that homestead handled was liquor. unlike al capone, there was no prostitution. his delivery boys did not carry guns. he had an office in town and all he had to do was call and say he needed some cases for a party and within one hour delivery would be on its way. his wedding to elise campbell was a social highlight of the season. he reveled in the title, the king of the puget sound bootleggers, which was taken as
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laudatory. the good people of seattle had little use for prohibition and roy and elise sponsored charity events and were among the seattle social elite. roy did not worry about the occasional police raid, he had two brothers on the force, so he knew in advance when things would happen. unfortunately for him, the feds did try to enforce prohibition and hearing about the operation, set up telephone taps outside his office and home. we are not talking about brain surgery. what we have is a wire with two clips and a set of headphones at the other end. after gathering 700 pages of notes, they arrested him for violating the homestead act and there was such a mountain of evidence, the jury had no trouble convicting. really appealed and claimed that the federal agents did not get a
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warrant and the wiretaps as evidence were tainted and cannot be used. the supreme court had blocked the use of the 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 could not be used in federal court. nevertheless, in this case the majority refused to accept the argument and agreed with the government, that wiretapping did not constitute an unreasonable search or seizure within the meaning of the fourth amendment. william howard taft wrote what must be considered one of the most wooden opinions ever handed down. he tried to limit it to one question, did evidence from a private telephone conversation intercepted by a wiretap, amount to a violation of the fourth and the amendments?
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since the federal agents had not entered the house or office, all they did was listen from the outside, there was no physical penetration and therefore no constitutional violation. there were three dissents, each one joint by the newest member, stone. the normally conservative peers -- butler tore apart the argument on both on historical grounds and misreading the meaning of the prior cases. holmes condemned wiretapping as a dirty business and explained that there are two desirable goals, one to detect criminals using evidence, and the other that the government should not use illegal means to catch criminals. he wrote, it is less evil that some criminals should escape, that the government should flow -- should play in a noble part. -- play an ignoble part. he wrote separately because
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brandeis asked him to do so and also because holmes did not fully agree with all that brandeis said. in his dissent, brandeis did two things. he completely recast the meaning of the search clause. and 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. the reason for his antipathy was that government should never be the lawbreaker because it is a great teacher. taft built his opinion on the question of space, as long as the federal agents had not set foot inside the office, then the fourth amendment requirement for a warrant for the search did not apply. this had been the usual standard of until that time, but there were no telephones involved in prior cases.
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brandeis considered this the greatest sin in judging, he had not taken into account changes in society and technology and paid no attention to the facts. it brings in discovery and invention, making it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court on what is whispered in the closet. at this point, brandeis wanted to refer to a clipping, he wanted to refer to a new device recently developed, called television. but he removed the note in deference to his clerk's skepticism. brandeis went on to write one of the most quoted passages in american law. "the makers of our constitution
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undertook the conditions favorable to the pursuit of happiness. they recognized the significance of man's spiritual nature, his feelings and intellect. they knew that the satisfactions of life are to be found in material things and they sought to protect americans and to beliefs and emotions and sensations. they conferred as against the government the right to be let alone, the most apprehensive of rights, and the ones most -- by civilized men. to protect that right, any unjustifiable -- by the government, whatever means employed, must be deemed a violation of the fourth amendment." in the dissent, he reinvented the fourth amendment jurisprudence. taft's opinion and other cases had been grounded in concepts of property, whether or not the police had entered the home. brandeis shifted emphasis from
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place to how it affected the individual. and he reinforced the notion that whether invading a place of business or home, the police were intruding upon a person's privacy. he had intended the fourth amendment to protect privacy. although brandeis did not live long enough to see many of his dissents accepted by the court, he lived to see congress prohibit wiretapping evidence in federal court in the 1934 communications act. and for the courts to partially reverse homestead in 1937. it hovered a ghost in every fourth amendment case that came up until the court overruled homestead in 1947 and adopted a new view. -- 1967. that year, potter stewart explained the new philosophy and words that came directly from brandeis. the fourth amendment protects people, not places. in a 2001 case, justice anthony
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scalia used the logic of brandeis to hold that federal agents could not use a new technology, thermal imaging, to look through the walls of a house to determine that a man was growing marijuana. even though the agents used the machine outside of the premises, they had gone information about the inside and could not use the evidence without a warrant. in 2013, a drug sniffing dog was brought to the front door of joelle a jardine's house and reacted to the odor of marijuana. police secured a warrant and found plants in the house and arrested the suspect. once again, justice scalia, following the logic of brandeis, held that the use of a dog, like thermal imaging, required a warrant before any thing could be used in court. the two opinions track the brandeis opinion, but do not
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cite it. because justice scalia did not believe in the other half of the dissent among which was about the right to privacy. now, privacy as a constitutional right, cannot proscribe those decisions that men and women make to shape their own lives. certain choices brandeis believed were so fundamental that they could be said to be outside the reach of the state's power. over the years, the court has come to recognize areas of procreation, family life my health, and more recently sexual orientation, despite great pressure from social conservative groups, the court and country have accepted brandeis's notion that the constitution embodies a right to be let alone. the arguments are less on
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whether the right to privacy exists and more on what are its limits. there are those that have argued the constitution does not mention privacy. justice kennedy responded that the framers have not drafted the document and specific terms, they do not claim to know the components of liberty and their manifold possibilities, but were themselves open as the court needed to be to new arguments and experiences. kennedy concluded that the framers "knew times can blind us to certain truths and later generations can see that laws once thought proper, now serve only to a press. press.ah' as the constitution enters, persons of every generation can invoke their principles for a surge in -- in the search for greater freedom." chief justice roberts discussing the characteristics of influential justices, suggests
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the ones that ranked the highest in effectiveness were the pragmatists, the secure justice is that know who they are. justices that show humility, those that know when to hold their tongues, and those who are aware of a case's practical effects. those judges rake -- rank higher than the loose canyons that cannons. although he did not mention names, certainly louis brandeis exemplified all of those traits on the first list. he had no need to dominate the court or his colleagues. and in many instances, he shaped the court in a jurisprudence that recognized the need to reconcile with facts. because the heavily conservative
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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 court's long history that provide as effective lessons as the brandeis dissents. modern scholars have consigned to that many of the majority decisions of the 1920's and 30's, to the dust tape of history. but they continue to study the brandeis opinions and hail him as it not only in master of judicial practices of, but as one of the greatest justices ever to sit on the court. thank you. [applause] watching american history tv, 48 hours of programming on american history every weekend on c-span 3. follow us on twitter for
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information on our schedule and to keep up with the latest history news. night, president of audi of america talks about autonomous cars and his prediction on when they will be on the market. >> if you read a lot of the headlines, a lot of the proclamations executives are making. we are used to a lot of hype and i think when it comes to everyday matters, a little bit of marketing hype is ok. when it comes to matters such as this, it is a little bit disingenuous. when someone says autonomous or autopilot or self driving, a consumer thinks, i hit a button and the car will take me anywhere in america at any time under any conditions.
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as we all know, that is not the case. >> >> with donald trump elected as the next u.s. president, melania trump becomes our second foreign-born first lady. learn more about the influence of america's presidential spouses from "first ladies." it is a look into the personal lives and influence of every presidential spouse and american history. it is a companion to the well-regarded tv series and features interviews with 54 of leading historians, biographies of 45 first ladies, and archival photos from each of their lives. "first ladies" is available wherever you buy books and now available in paperback. >>

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