WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, November 28, 2006

HAPPY BIRTHDAY JUSTICE BRANDEIS

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.”

49 comments:

Jason Grey said...

I have said this before, and will say it again because I think it is witty.
The Supreme Court has finally narrowed the fourth amendment to what it was originally intended to do; protect us from British soldiers.

Anonymous said...

That is exactly why you knuckleheads should be paying attention to the SAO's recent admission to "bending" the rules relating to secret clerk files and altered records.

Anonymous said...

One of your best posts ever Rump. Unfortunately, not nearly enough judges these days feel that way. What is more frightening is that many of them lack the capacity to understand the importance of protecting individual rights from unnecessary gov. intrusion.

Jason Grey said...

Not surprising when you consider the answer to the following question: Who was the last supreme court judge to actually represent an individual in criminal court prior to ascension to the bench?

Anonymous said...

this blog should be required reading for all criminal judges.


the federal government has been illegally wire tapping drug dealers since the mid 80's but not using the information accept for intel.

Anonymous said...

Jason Grey

Have you ever considered running for public office?

Anonymous said...

A Jew who is a smart lawyer - who would have thunk it?

Anonymous said...

Oh yeah, Jason would make a great canadit...I can see it now:

Mr. Grey has come under some criticisim for cracking jokes in poor taste. For example, during a blogging session in 2006, Mr. Grey stated ""Yeah, Laura Bush !" in resposne to a comment that read in part:

"Very few public officals are referred to as "openly hetrosexual" or "openly catholic" or "Openly asian", or "President Bush, the first president to openly admit he enjoys anal sex with his wife", so I see no reason to refer to someone as "openly gay"."

This behavior leaves this reporter with the difficult question to answer as to which is worse: Mr. Grey's sence of what is appropriate humor, or his sence of who's ass he would like to tag.

So Jason, why don't you further demonstrate your sense of appropriate and tell us bloggas who's ass would you like to tag: Laura Bush, Nancy Regan or Hillary Clinton's?

Jason Gray said...

In truth, I would like to run a train on all of them.

Anonymous said...

OKAY. You really are now, my official fucking hero for that response. What bar do you goto, I promise I will leave a $20.00 tab under your name so that I can buy you a couple drinks, you sick, sick, fucker.

Where do you want the tab?

Anonymous said...

This gives me a great idea Rumpole. Let's start a fund, to be held in trust by a trusted member of our community, to be awarded for the most deserving post for each post string. The trust fund could be the "friends of Rumpole trust fund," and a small bar tab or certificate could be awarded as decided by you. The donantions by the friends could be sent in in, lets say $5.00 amounts.

Rumpole said...

Anonymous said...
this blog should be required reading for all criminal judges.


the federal government has been illegally wire tapping drug dealers since the mid 80's but not using the information accept for intel.

Rumpole responds: I am thinking of offering the blog on a "pay per month" basis for Judges. it will remain free for everyone else. With Dade County's or JAC's accounting system, I should clear about a million a month.

Jason Grey said...

In truth the 5:33 comment was not me , But I move to adopt it as my own. I like the way fake Jason Grey is thinking! Ps. Never trust anyone who wants to be in charge!

Anonymous said...

lol

Jason GrAy said...

I like to drink at Churchills. Leave the tap there.

Late Great William O. Douglas said...

What are the chances of someone like Louis Brandeis (or me, William O. Douglas, or even Robert Jackson)getting appointed to the United States Supreme Court in this day and age?

fake robert bork said...

What do you mean Douglas? Don't you think that Alberto Gonzalez (we like to call him Torture Boy) has just as much gravitas and intellect as Brandeis?

Anonymous said...

Gonzo couldn't get Gravitas if he put on a cement overcoat --- now there's an idea!

Anonymous said...

Jason your response re running a train is funniest thing on this blog ever

Anonymous said...

Rump, your defense of capitalism has been weak. There are waaaay too many socialists on this blog.

Anonymous said...

I’ll tell you, this subversive advocacy is going to get you in trouble. You keep espousing all these fantasies - all these ideological and theoretical rights - rights to what - remain silent (assuming you are not exhausted or tricked); a lawyer, and an effective one at that (assuming the police - with the advice of the SAO do not threaten to arrest you if you insist on speaking to your client); the fourth amendment - what is that(it is all in plain view or discovered in good faith - only a fool cannot make up good faith); privacy and free speech - surely you jest. You fail to understand that a single dimensional totalitarian state has the most efficient system of justice - even if it results in a few innocent folks getting the death penalty.

All kidding aside - a well-deserved commendation goes to those who still harbor some degree of optimism, if not the stubbornness not to allow the caprice of some to trample the rights of the accused - those who still file motions, challenge the State’s case, and refuse to plea their client out convenience, believing they make a difference.

Those whose mission is to administer justice should realize - and come to grips with the fact that justice is not a technicality nor can their positions become subservient to politically expedient agendas.

History teaches us the MacCarthisim did not last for ever, nor did the Russian state - although we currently have more folks in prison than Russia did at the height of the cold war - amazing, Just think if instead we focused all those resources on providing affordable housing and medical care- there you go again with that liberal thinking - oh well - see you in the newsroom!

Anonymous said...

I think both Jasons are a riot.

Though it took me to look again to see the fake posts which were used under the name "gray" as opposed to the real ones under the name "grey".

I guess imitation is a form of paying homage.

Anonymous said...

according to "the sexual history of the supreme court," justice brandeis was also known to be the most well-endowed of his contemporaries and was therefore a big hit with the ladies. they called him "big brandy" or sometimes simply "bull."

Rumpole said...

Anonymous said...
Rump, your defense of capitalism has been weak. There are waaaay too many socialists on this blog.

Rump says- don't confuse capitalism with facism- we support the 1st amendment as much as we believe in free enterprise.

Anonymous said...

Jason:

I thought your favorite bar was Mulligans because it is attached to the hockey rink!

PERTIERRA said...

I WANT TO GROW UP TO BE LIKE JASON GREY.KEEP BLOGGING JASON...........

Anonymous said...

Oh Jason he's so fine, he's so fine, Oh jason, oh oh oh Jason. You are so manly- only a true man would blog with his name. Love Julio.

LATINLOVER said...

YOU GUYS CRACK ME UP...

Jason Grey said...

Don’t do bars too much anymore (bad shit tends to happen when I drink in public), I sometimes can be found at Club deuce locally, and mulligan’s Pembroke pines every Sunday after hockey.

Jason Grey said...

Thanks Julio, now can I have some groupies that are female?

Jason Gray said...

If you were wondering about the bad shit the happens when I drink in public, let me tell you about the last time it happened.

I was in the Duece bar on the beach. It was about 3 am when I left the bar with a real beauty. Next thing you know, I'm giving this pig the two ball root solution only to find that she was a he. That was it, No more drinking in public.

twoballpig said...

was that you??? i knew i'd hear from you again......

Jason Grey said...

My self appointed alter ego is starting to freak me out. Dude, you have got to look at the Adams apple!

Anonymous said...

lol

Anonymous said...

"the two ball root solution"?

jason gray, you have coined a good one.

twoballpig said...

honey, he was too busy looking at something else.....hmmmmmmmmmmm

PERTIERRA said...

ARE YOU SURE IT WAS JASON OR WAS IT ROY LEAVING THE DUECE BAR WITH A WOOMAAAAAN.............

Rumpole said...

Gee, and I worked so hard on the Brandeis post. All I needed to do was post a picture of the Deuce. Live and learn.

Anonymous said...

Rumpole: You worked so hard on the Brandeis post??? How do you explain the fact that much, if not all, of your post appeared in a New York Times article several weeks earlier??

Anonymous said...

Plagiarism is only stealing if you get caught - RUMP!

Anonymous said...

Jason, is Juan Mourin still your executive secretary???

Anonymous said...

this is rated XXX

Anonymous said...

HEY ROB, CRESPO WAS A BORE ON THE BENCH AND SOMETIMES EVEN EMBARRASING. JUST BECAUSE HE HAS PASSED ON, AS WE ALL WILL, DOES NOT ERASE THIS FACT.

SINCERELY,


"I AM SCARRED OF YOU"

Anonymous said...

who wakes up and thinks of such a thought? get some help dude.

i spoke to gabe martin recently. he won a big trial in broward. if it's his last- at least he went out with a v.

rumpole, your numbers are down.

Anonymous said...

juan mourin is HOOOOOOOOT

Anonymous said...

Oh Jason he's so fine , you blow my mind, oh Jason. Oh. Oh Oh Jason.You are my hero. oiluj zerreitug.

Anonymous said...

i am confused as to how president george bush was mentioned in a 1928 brandeis decision. was he a judge or nostradamus?

excellent post rump, and despite the fact that we only got sophomoric responses, you have the admit the jason grey and jason gray stuff was a riot.

peace

Anonymous said...

As a Graduate of Brandies University, the finest of all the Institutions of Higher learning in the Commonwealth of Massachusetts, I would like to echo the Rump’s sentiments on the precious insights provided by the “dissenting Justice.” Now I will provide a quote from Brandeis that epitomizes why we have Blogs (and why they are so valuable): “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.” One correction, however minor, Brandeis wrote a dissent in Olmstead and not the “opinion” as Rump seems to intimate—but why worry about such minor details.

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