About two weeks ago the 150th birthday of Supreme Court Justice Louis Brandeis passed. Long time and careful readers of this Blog know of our admiration for Justice Brandeis, and his amazing and prescient opinion in Olmstead.
Brandeis was the first Jewish Justice to serve on the court. But his real contribution to law came from his devotion to the interjecting the facts of a case into the legal analysis. In 1908 Brandeis as a lawyer won an astounding victory during the Supreme Court’s Pro-Business era, when worker’s rights were routinely struck down by the Court.
Brandeis was defending an Oregon law that limited women’s workdays to 10 hours. It seemed likely the court would rule, as it just had in a similar case, that maximum-hours laws violated employers’ “right of free contract.” In his brief, Brandeis devoted two pages to legal analysis. Over 100 pages were devoted to citing statistical and sociological data, to defend the law by showing the real life harm that long workdays did to women. The court upheld Oregon’s law, 9 to 0.
We remember the Brown vs. Board of Ed., for the Court’s reliance on the sociological impact of separate but equal. But Brandeis was one of, if not the first lawyer to bring such an argument before the court 50 years before Brown was argued.
President Woodrow Wilson nominated Brandeis to the Supreme Court in 1916. Brandeis promptly shook up the court with his practical legal analysis- basing decisions on their actual impact on people. The Brandeis court overturned the court’s 75 year hostility to minimum wage laws, with Brandeis leading the way.
The Olmstead opinion didn’t just happen.
Brandeis was fated to be the Justice that brought privacy to American Jurisprudence. The New York Times recently remembered that as a young lawyer, Brandeis co-wrote an article for the Harvard Law Review, “The Right to Privacy,” that Roscoe Pound, dean of the law school, would later say “did nothing less than add a chapter to our law.”
We now revisit our post on Olmstead. Search this blog for Olmstead for the full post. If you read nothing else, scroll down to the final quote in bold and see if his words are not even more applicable today than the day he wrote them.
In OLMSTEAD v. UNITED STATES, 277 U.S. 438 (1928) the US Supreme Court first dealt with the issue of the Fourth Amendment and wiretapping.
Justice Holmes first dissented and called wiretapping a “dirty business”. Holmes framed the issue as a problem between allowing the government to break the law to catch criminals. Once framed, Holmes decision was easy.
But Justice Brandeis had bigger game in mind.
Brandeis was writing for the ages, and his topic was liberty and the defense of the individual.
Brandeis wrote that when the 4th Amendment was adopted, “force and violence” were the only means used by the government that the amendment was designed to protect against. But Brandeis recognized that over the course of time, threats to liberty change and evolve:
“Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” Id. 474. .. Moreover, in the application of a constitution, our contemplation cannot be only of what has been but of what maybe. The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court,and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of everyman in the hands of every petty officer" was said by James Otisof much lesser intrusions than these.'While we are sure President Geo. Bush was not the “petty officer” referred to, the prescience of this opinion is amazing. With the framework properly laid, now Brandeis turned to his great theme: protection of liberty for as long as this republic stands: "The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.Id. 479.
Brandeis then set to warn future generations of the real threat to liberty. These are the words that need to be read and re-read today:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion oftheir liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal,well-meaning but without understanding.
Brandeis concluded with his famous peroration that is as much or more applicable today then it was in 1928:
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct tha tare commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.
Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Wow. It doesn't get any better than that.
How does the Government's actions against the people rotting at Guantanamo Bay fit within that reasoning?
Of course, as we have previously quoted our learned and wise president, regarding the Constitution: “it don’t apply if you ain’t read it.”