Many
judges inspired me during my thirty-six years of law practice. For example, I worked with Paul Garrity, alav
ha shalom, in a legal services office in Cambridge. He went on to become the
first judge of the Boston Housing Court and then a judge of the Superior Court.
He left a lasting legacy of improvements in two vital areas.
The Boston
Housing Authority was the landlord of 67 housing projects and managed them very
poorly, harming the residents forced to live there. Judge Garrity greatly improved their lives of
residents by ordering the Authority into
receivership and overseeing improvements there.
Judge
Garrity later presided over a case involving Boston Harbor. You may recall a
picture of Paul in his robes standing at the water’s edge and labeled “Sludge
Judge.” The harbor was shockingly polluted. Paul’s rulings forced the creation
of the Water Resources Authority and prevented 43 Boston-area communities from
spewing raw sewage into the harbor, sparking a cleanup that has benefited
everyone in the area.
The
judge who most inspired me, though, was a judge I never met. He was Louis
Brandeis.
Those
ideas changed while I was in law school, partly as a result of the inspiration
of Brandeis. For the first four years after graduation I worked in a free
legal services clinic in Cambridge located between two housing projects,
representing poor people. Brandeis’s example was partly responsible for leading
me on from there to spend the next seven years representing Massachusetts human
service agencies.
Brandeis
was also a Zionist and deeply committed to the protection of the rights of
Jews. I imitated him in that as well, including in my many years as an
officer of the American Jewish Congress.
President Woodrow Wilson nominated Brandeis in 1916
to serve on the Supreme Court. Wilson was deeply impressed with Brandeis as a
result of working with him personally over many years. Brandeis
was "one of the architects" of the Federal Trade Commission and had served
as Wilson's chief economic adviser from 1912 until 1916.
Wilson described the advice he had received from
Brandeis as singularly enlightening, clear-sighted and judicial, and, above
all, full of moral stimulation. Wilson also praised Brandeis his impartial,
impersonal, orderly, and constructive mind, his rare analytical powers, his deep
human sympathy, and his profound acquaintance with the historical roots of our
institutions and insight into their spirit. He described Brandeis as a genius
in getting persons to unite in common and harmonious action and look with frank
and kindly eyes into each other's minds, who had before been heated antagonists.
That nomination was the first time a President had
nominated a Jew to the Supreme Court. And it was a brilliant choice.
Brandeis had already demonstrated his extraordinary
intelligence from an early age. He graduated from Harvard Law School at the age of 20 with the
highest grade average that had ever been achieved. His record was unbroken for
another eight decades.
Brandeis
settled in Boston. He and Samuel Warren, his classmate with the second highest
average, formed a law firm that still thrives here. It’s now called Nutter,
McLennen and Fish. It’s lobby includes a virtual shrine to Brandeis, with
oversize pictures and a full description of his many accomplishments.
Brandeis
soon became famous, both locally and beyond, through his work on progressive
social causes.
Starting
in 1890, he helped develop the "right to privacy" concept by writing
a Harvard Law Review article of that title. Legal scholar Roscoe Pound said
that Brandeis had accomplished "nothing less than adding a chapter to our
law."
In
"The Right to Privacy," Brandeis and his law partner, Samuel Warren,
defined protection of the private realm as the foundation of individual freedom
in the modern age. They summarized the increasing capacity of government and
the press and advertisers to invade our privacy. For example, in 1890, when
they wrote their article, photography was becoming more popular. Some
advertisers would use a photo of an individual to advertise their products
without the person’s consent. Brandeis argued that this is wrong and the law
must provide a remedy.
This
article was later called one of the most influential essays in the history of
American law.
As a
lawyer, Brandeis often fought against powerful corporations, monopolies and public
corruption. In doing so he often declined to be paid for his work. He came to
be known as the “People’s Lawyer.”
Here
is one good example of a change for which he was responsible and from which we
all can benefit: the creation of savings bank life insurance.
In
1905 he took a case for a committee of life insurance policy holders. His
clients were concerned that their scandal-ridden insurance company would file
bankruptcy and the policyholders would lose their investments and insurance protection.
He
spent the next year studying the workings of the life insurance industry. He
often wrote articles and gave speeches about his findings. He described the
practices of the companies as "legalized robbery."
He concluded
that life insurance was "simply a bad bargain for the vast majority of
policyholders." This was mainly because of the inefficiency of the
industry. He also learned that the policies of "poorly paid
breadwinners" were canceled when they missed a payment. As a result, most
policies lapsed. Only one out of eight original policyholders actually received
benefits. The premium payments were serving no purpose other than to enlarge company
profits.
Brandeis
generated wide support for his ideas in a personal campaign of educating the
public. He then created a new "savings bank life insurance" system
with the help of progressive businessmen, social reformers, and trade
unionists. Within two years of his first looking into this problem, the Savings
Bank Insurance League had 70,000 members and Brandeis’s "face and name were
appearing regularly in newspapers."
The
Governor stated in his annual message his wish for the legislature to study
plans for "cheaper insurance that may rob death of half of its terrors for
the worthy poor." Brandeis drafted his own bill. Three months later the
"savings bank insurance measure was signed into law." He always said
this bill was one of "his greatest achievements."
President
Wilson’s nomination of Brandeis to the Supreme Court was bitterly contested. This
was due in large part to anti-Semitism, which was out in the open in 1916. Anti-Semitism
caused even one member of the Court, Justice James Clark McReynolds, to be appalled
that a Jew had been nominated.
McReynolds
was a blatant anti-Semite. Once Brandeis had joined the Court, McReynolds
refused to speak to him for three years. McReynolds continued that animosity
throughout Brandeis’s tenure, and even after. When Brandeis retired in 1939, McReynolds
would not sign the customary dedicatory letter to a resigning justice that the rest
of the judges sent to Brandeis.
Brandeis
was no stranger to anti-Semitism. He had suffered plenty of prejudice from the
students at Harvard Law School. They constantly saying to him things like, “Brandeis,
you’re a really smart guy! You could go far in life if you weren’t a Jew. Why
don’t you convert?”
By
his final year of school, Brandeis’s brilliance had become indisputable. He was
invited to join the Law School’s honor society. This was the first time that
the elite organization had ever accepted a Jewish member.
On
the evening of his induction, Brandeis took the podium and gazed out upon his
audience. He began this way: “I am
sorry,” he said, “that I was born a Jew.”
The
room exploded with noise as his fellow students erupted in enthusiastic
cheering. “Finally he has seen our point,” you could hear the crowd murmur.
When
the furor finally died down, Brandeis continued: “As I say, I am sorry I was
born a Jew. But only because I wish I had the privilege of choosing Judaism on
my own.”
Brandeis’s
words were met with uncomfortable silence. And then, one by one, members of the
honor society began to stand up.
Brandeis
fully expected his colleagues to walk out of the room in protest. He braced
himself for their rejection.
Instead,
awed by their classmate’s conviction and strength of character, Brandeis’s
fellow students remained glued to their places. They gave the newest member of
their ranks a standing ovation.
The
controversy surrounding Brandeis's nomination was so great that the Senate
Judiciary Committee, for the first time in its history, held a public hearing
on the nomination, allowing witnesses to appear before the committee and offer
testimony both in support of and in opposition to Brandeis's confirmation.
Previous
nominees to the Supreme Court had been confirmed or rejected by a simple
up-or-down vote on the Senate floor. This often happened on the same day the
President sent the nomination to the Senate. In Brandeis’s case, four months elapsed
between the nomination and the vote, longer than ever before.
Brandeis
was eventually confirmed by a vote of 47 to 22.
His
opinions were, according to legal scholars, some of the "greatest
defenses" of freedom of speech and the right to privacy ever written by a
member of the Supreme Court.
Brandeis’s
ideas were not always accepted when he first joined the Court, but some of them
went on to become accepted law.
One
of his most quoted decisions was a dissent in a 1928 case called Olmstead v.
United States. This was a prosecution of bootleggers during Prohibition.
Federal agents gathered evidence by tapping the phones of five men. The agents
had not obtained a warrant from a court. What the agents did was a crime.
At
trial the defendants objected to this illegally collected evidence, but the
trial court admitted it. The defendants appealed, claiming the federal agents
had violated their rights under the Fourth Amendment to the Constitution.
That
amendment guarantees to the people “the right to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.”
The
Supreme Court upheld their convictions by a vote of five to four. The Court
held that the Fourth Amendment did not apply to these wiretaps because there
had been no physical intrusion into the homes or offices of the defendants and
no “papers or effects” had been searched or seized.
The
primary dissenting opinion was written by Brandeis. He said that the
Constitution had to be understood with reference to the purposes of each
provision. It was not enough to consider only the particular kinds of actions
that might have been possible when the Constitution was adopted.
He
said this about the purpose of the Fourth Amendment:
The makers of our Constitution understood the need to secure conditions
favorable to the pursuit of happiness. The protections thus guaranteed include
the right to life and an inviolate personality -- the right to be left alone --
the most comprehensive of rights and the right most valued by civilized men.
Brandeis
lived to see many of the ideas that he had championed become the law of the
land. His spirited, eloquent defense of free speech and the right of privacy
have had a continuing, powerful influence upon the Supreme Court and,
ultimately, upon all of us.
For
example, in 1965, in a case called Griswold v. Connecticut, the Supreme
Court ruled that the Constitution protected a right to privacy. The case
involved a Connecticut law that prohibited the use of contraceptives, even by
married couples. The Supreme Court invalidated the law, ruling that it violated
the "right to marital privacy."
Just
eight years later, in Roe v. Wade, the Court concluded that the right to
privacy extended to a woman's decision to have an abortion.
The
issues that Brandeis identified have come into even sharper focus after 9 11.
In response to the attack that day, our government undertook a secret and
extremely broad surveillance program in which the government ignored laws that
guarded us against unlimited wiretapping.
In
2008, after the secret program was revealed, Congress passed a law that gives
the government the right to read our email and listen to our telephone
conversations if the other party is outside the U.S. They can do that without a
warrant. That law remains in force today.
But
just last month the Supreme Court agreed to hear a challenge to that law. One
of the grounds for that challenge is the same claim to a right of privacy that
Brandeis identified in his law review article 120 years ago.
Brandeis
retired from the Supreme Court in 1939. He died in 1941 following a heart
attack. His influence has continued right down to the present day. We will be
forever in his debt for the changes in American law for which he was
responsible.
We
should also learn from his inspiring pride in being a Jew. In his time, that
was hard to do because of the anti-Semitism all around him. In our time, however,
we have our own challenge: living in a society where each of us has freedom of
choice, due in part to work of judges like Brandeis. So we need to make our
decisions about our identities without having to stand up to bigots. The danger
today is not anti-Semitism but assimilation. I hope we can follow the example
of Louis Brandeis and proudly support our identities and roles as Jews in
America today.
Next
week Alice and I will again be welcoming our cousin Alissa from Michigan after
her summer break. She is returning to this area to continue her studies at a
local college in Waltham. It always pleases me when I see her sweatshirt with
the name of the college on it: Brandeis.
According
to its website, Brandeis University reflects the ideals of academic excellence
and social justice that Justice Brandeis personified. And we can all agree with
the university’s motto: “Truth, Even
Unto Its Innermost Parts.”
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