Revisiting The Tenure Of Supreme Court Justice Louis Brandeis, The 'Jewish Jefferson'
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. We're going to look at the Supreme Court a hundred years ago when Louis Brandeis became the first Jewish justice. And then we'll look at the court today and how it's been functioning with eight justices since the death of Antonin Scalia. My guest is Jeffrey Rosen, the author of the new book "Louis D. Brandeis: American Prophet."
Rosen describes Brandeis as the most farseeing, progressive justice of the 20th century, the one whose judicial philosophy is most relevant for the court today as it confronts questions involving regulation in a time of economic crisis and the preservation of constitutional liberty in a time of technological change. Brandeis remained on the court for 23 years before retiring in 1939.
He died less than two years later at the age of 84. Jeffrey Rosen is the president and CEO of the National Constitution Center in Philadelphia, which was established by Congress to disseminate information about the Constitution on a nonpartisan basis. Rosen is also a professor at George Washington University School of Law and is a contributing editor of The Atlantic.
Jeffrey Rosen, welcome back to FRESH AIR. Why is Justice Brandeis relevant for today?
JEFFREY ROSEN: Louis D. Brandeis was the most important critic of bigness in business and government since Thomas Jefferson. He was a fierce opponent of oligarchs like J.P. Morgan, who took reckless risks with other people's money. And he viewed American history as Jefferson did, as a conflict between greedy financiers and small producers and farmers.
But in addition to criticizing corporate bigness and predicting the crash of '29 - he would've predicted the crash of 2008 - he was also a critic of bigness in government. He voted to strike down the most centralizing aspects of the New Deal. And he thought that only in small-scale governments in the states and localities could people master the facts that were necessary to develop their faculties and fully participate in American democracy.
Here he was a Jeffersonian who had great faith in the necessity and duty of education and the lifelong obligation to use our leisure time in order to make ourselves fully functioning citizens. And in that sense, he became the most important free-speech theorist of the 20th century and the most important justice who taught us how to translate values of privacy in light of new technologies.
And if that wasn't enough, he also, in his 50s, became the head of the American Zionist Movement and persuaded Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine.
GROSS: And in this era, where there's a big disagreement within the Supreme Court about whether the Constitution is a living document that has to be interpreted to take into account the technology and the issues and social change of our day or whether we should just interpret it letter of the law as it was written - what would the founding fathers want? - Brandeis took a strong stand on that saying the Constitution is a living document that has to be constantly interpreted in the light of the realities of the day.
ROSEN: He did indeed. And he wrote a great speech called "The Living Law." But in many ways, he blended both sides. He was, what some have called, a living originalist. He believed that you start with the values that the framers meant to protect, like their hatred of the general warrants and writs of assistance that sparked the American Revolution.
But then you translate those values in light of new technologies and new facts so that it is able to adapt to modern realities. In that sense, he has a lot to say to both sides.
GROSS: Brandeis was the first Jewish nominee and the first Supreme Court justice. So what was his confirmation process like? Was there a lot of anti-Semitic resistance to him?
ROSEN: There was anti-Semitism in his confirmation process. He waited 125 days between his nomination on Jan. 28, 1916, and his confirmation on June 1, 1916, the longest wait that anyone had waited until then. And the record still hasn't been surpassed, although it may be in July.
GROSS: We're heading there (laughter).
ROSEN: Yeah, we're heading there. But there was some anti-Semitism. Some opponents - a cult accused him of Old Testament cruelty. William Howard Taft, the former president, talked about him being an emotionalist, a socialist and a muckraker and in terms that had a sort of vaguely anti-Semitic cant.
But in the end, the real opposition to Brandeis was not his religion but it was his radicalism, his perceived opposition to oligarchs, to J.P. Morgan, the idea that he was an enemy of the property classes. And that was the reason that a Democratic Senate that should've, by any notion, confirmed him easily resisted a bit.
But in the end, the vote wasn't too close.
GROSS: In those days, in 1916, the nominee did not testify in the Senate confirmation hearing. So was there a way that he had of defending himself against the attacks against him?
ROSEN: Yes, he had a kind of rapid response process set up. He would have all the attacks against him telegraphed to his office in Boston. He had an incredible filing system, so he would immediately find out what the right response was, telegraph it back and have his proxies respond. He understood the necessity of immediate response to a negative campaign.
GROSS: One of the things that he is famous for - you mentioned the curse of bigness that he opposed. And he wrote a book called "Other People's Money." What did he say in that book that had lasting resonance?
ROSEN: It's an astonishing book. I'd love listeners to read it because it's short and it's available online.
GROSS: Can I confess something? I know the expression. I didn't realize it was the title of his book - that it was like he coined that expression.
ROSEN: He had a real gift for aphorism - other people's money, the curse of bigness, laboratories of democracy. He was a beautiful writer, and that's part of his power. Other people's money is a very resonant idea.
It's the idea that reckless oligarchs like J.P. Morgan took risks with other people's money by investing in complicated financial instruments whose value they couldn't possibly understand. Sound familiar (laughter)?
GROSS: Very 2008.
ROSEN: (Laughter) It's very 2008. And indeed, Brandeis predicted the crash of '29 because he said, I really don't understand why people just don't go broke. He realized that the bankers were taking all of the possible payoffs and none of the risks and predicted that things would go bust.
In response to the crash of '29, there were two phases. Initially, the New Deal under Franklin Roosevelt tried to centralize regulation. Brandeis struck that down as a Supreme Court justice.
But at the end of the first New Deal, they adopted laws like the Glass-Steagall Act, which separated commercial from investment banking and maintained financial stability for - until it was repealed in 1999 by the Gramm-Leach-Bliley bill.
So essentially, Brandeis wanted to break up the big banks - prevent the monopolies from forming in the first place. That, of course, sounds extremely contemporary, as well, and has great resonance in 2016.
GROSS: So it's only after the Gramm-Leach-Bliley bill eliminated Glass-Steagall Act that investment banks and commercial banks were able to merge. And explain very briefly how that contributed to the financial meltdown of '08.
ROSEN: After Gramm-Leach-Bliley repealed the Glass-Steagall Act, big banks were able to engage in proprietary trading - that is, trading on their own account - investing once again in risky complicated instruments like credit default swap, whose value no one understood.
So just as Brandeis predicted, once again, when the bets went bad, the banks took none of the risk because they were too big to fail. And it was the American citizen who suffered.
GROSS: Brandeis was also anti-monopoly. He saw the railroads. He saw the banks. And he thought these institutions - certain businesses - are growing too big. What was his approach to try to regulate that through the courts?
ROSEN: There are three approaches to monopoly in the election of 1912. And again, it's just so relevant for today. Brandeis and Woodrow Wilson wanted to break up the banks to prevent them from forming in the first place so that they could be taxed by the states.
Theodore Roosevelt wanted to allow the big banks to continue - but to create big regulatory bodies to oversee them. And William Howard Taft, the incumbent, wanted a law enforcement approach. He wanted to prosecute the banks through antitrust enforcement. I was struck that when Bernie Sanders talked about the historical precedents for his proposal to break up the bank, he invoked Theodore Roosevelt.
It was the wrong analogy. It's actually Brandeis who wants to break up the banks. Roosevelt wanted to keep them big and also create big regulatory bodies.
GROSS: So did Brandeis write any decisions that reflected the views that we're talking about - his campaign against bigness and his wanting to prevent monopolies from forming in the first place?
ROSEN: He did. Brandeis wrote an incredible dissenting opinion in a case called Liggett and Lee, which, again, listeners can check out. Here's just a brief excerpt from his anti-corporate, anti-monopoly passion.
There's a widespread belief, Brandeis wrote, that the existing unemployment is the result in large part of the gross inequality and the distribution of wealth and income, which giant corporations have fostered - that by the control, which the few have exerted through giant corporations, individual initiative and effort are being paralyzed, creative power impaired and human happiness lessened.
It goes on, but you just get a sense of the incredible power of his prose. And Justice John Paul Stevens cited that Liggett dissent in his own dissent in the Citizens United case. I had the chance to interview Justice Ruth Bader Ginsburg for this book. And she told me that Brandeis would not have been a fan of Citizens United - not at all, she said.
GROSS: So Brandeis called the states the laboratories of democracy. And as you point out, that's a phrase that's become the touchstone of libertarian and conservative defenders of federalism today. How did he mean it?
ROSEN: Brandeis meant that in small-scale communities, citizens could govern themselves. They could master the facts that were necessary for government and try regulatory experiments, like maximum hour or minimum wage laws, that he thought were not a good idea at the federal level.
GROSS: The reality is that states' rights became a rallying call for southern states that opposed the civil rights movement - that didn't want equal rights for African-Americans. So do you think Brandeis was able to see that coming? Was there already a kind of reactionary states' rights movement?
ROSEN: Brandeis has a blind spot. And that is race. He was personally courteous to African-Americans, but he was not a crusader for racial equality in the way he was, or at least became, for gender equality, for example.
And I think that reflected the fact that he was part of this southern populist tradition beginning with Jefferson, Jackson, Woodrow Wilson and ultimately picked up by FDR that's very focused on economic inequality and the dangers of monopoly, but is less sensitive to the dangers of racial equality.
And I think - in the introduction, I say that we need to acknowledge the fact that it's too bad that he did not join other Jews of his era in being more of a crusader for racial equality.
GROSS: And we should mention that he grew up in Kentucky the son of Jewish immigrants from Prague.
ROSEN: It's an incredible story. His father left Prague in 1848, fleeing the failed liberal revolutions of 1848, in search of liberty in America. And Brandeis recalled his parents' generations as the pilgrims of 1848 and took from them a passion for liberty and also a devotion to reading and music.
He said there's nothing better than parentage noted for its brains and character. And he wrote the most beautiful letter to his mother, as well, which all sons should really emulate. I read it to mine after I...
GROSS: What's your favorite line from that?
ROSEN: Well, he said, essentially - I must tell you, dear mother, that I would change nothing in my upbringing. And the world would be infinitely better if a thousand mothers like you existed and had more children (laughter). It was really - he really liked her a lot (laughter).
GROSS: So he didn't start - Brandeis didn't start off supporting women's suffrage. But he changed his mind on that. Why did he change his mind? What did - who did he meet? What did he see?
ROSEN: He met Josephine Goldmark, his brilliant sister-in-law who worked with him in writing the so-called Brandeis Brief, which is a collection of facts and empirical evidence designed in court in a case called Muller and Oregon to uphold maximum hour laws for women. And he was so impressed by Josephine...
GROSS: Maximum hour laws - they can't make you work more than a certain number of hours.
ROSEN: Exactly. And those had been struck down by the Supreme Court for men a few years earlier. And Brandeis wants to persuade the court that they're OK for women.
And he's so impressed by Josephine Goldmark and her brilliant fellow crusaders for women's equality that he changes his mind. And he says that he changed his mind. He said, I've thought long and hard about this, and I'm convinced that American democracy can only be fulfilled if women have completely equal rights to men.
It was one great example of his ability to change his mind in the face of new facts - and also his incredible contribution to the Brandeis Brief, which inspired Thurgood Marshall to write his pathbreaking brief in Brown v. Board of Education, which persuaded the court to strike down school segregation and also, Justice Ginsburg told me, inspired her when she was writing her pathbreaking briefs arguing for gender equality in the 1970s. She was inspired by Brandeis and the importance of emphasizing facts.
GROSS: We're talking about former Supreme Court Justice Louis Brandeis, who was confirmed to the court a hundred years ago. My guest is Jeffrey Rosen, author of the new book "Louis D. Brandeis: American Profit." Rosen is the head of the Constitution Center in Philadelphia. We'll be right back after a short break. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jeffrey Rosen, author of a new book called "Louis D. Brandeis: American Prophet," about Louis Brandeis who was the first Jewish Supreme Court justice. He was confirmed a hundred years ago in 1916. Jeffrey Rosen is president of the National Constitution Center, a professor of law at George Washington University Law School and a contributing editor for The Atlantic.
In his belief that the Constitution needed to be interpreted in light of new technology and new social change and everything, there's actually a really funny story - it's funny to me anyways - about television. He didn't realize that television was one way - it kind of broadcast to you in your home. It was very new (laughter) when he was on the Supreme Court.
And he was afraid that the government could monitor you in your living room through your television. So he thought television presented a really major free speech kind of - free speech surveillance kind of issue.
ROSEN: Exactly, he misunderstood it, as you said, but basically he anticipated Skype and webcams. And his law clerk says, you can't just look out of a camera and see people on both sides. Now, of course, you can. And there's an amazing passage in that opinion, it's called Olmsted versus the United States, where he doesn't mention television explicitly, but he refers to it implicitly. Listen to this - it gives you the chills to read it - or it gives me the chills anyway. Here we go.
(Reading) The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday 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.
He's anticipating FMRI technology, brain scans, things that can reveal our unexpressed emotions. And he's insisting you can't just focus on the legal principle the framers were embracing - that you had to break into someone's house and trespass on their lands - you have to focus on the value they were trying to protect, which is intellectual privacy.
And while at the time of the framing, you took beating down someone's door and riffling through their private papers to invade their intellectual privacy, now with these new technologies, like Skype and FMRI technologies, you can see far more than the hated general warrants and writs of assistance that inflamed the American Revolution. So Brandeis is challenging us - take the framers values, translate them in light of these new technologies and make them our own.
GROSS: Let's talk about one of the low points for Brandeis on the bench - at least that's how we'd see it now for sure. He signed onto the majority opinion that people who were considered to be imbeciles or mentally defective should be forcibly sterilized so that they couldn't reproduce and pass on their defectiveness to their offspring. And that's a really - that's just a really awful decision.
ROSEN: It is an awful decision. And it was especially awful that the author of that decision, Justice Oliver Wendell Holmes, who said so chillingly, three generations of imbeciles is enough, was himself an enthusiastic eugenicist. He wrote to his friend Harold Laski, this morning I upheld the law mandating the sterilization of imbeciles. Nothing I've done all day has given me so much pleasure.
This is a reminder of a really dark part of our history which is that progressives - and even the progressive religious denominations - tended to be enthusiastic eugenicists. Holmes, Theodore Roosevelt - these are all - and Margaret Sanger - these are people who support the so-called perfection of the race. It's a small comfort that Brandeis, by all accounts, was not himself a eugenicist. There's no evidence of him supporting this as a policy matter.
He was a great believer in judicial deference to the states and state's rights as we've discussed. And this was a 8-to-1 decision. He seemed to silently be joining, what was at the time, legally uncontroversial. It's striking that the only dissenter in the Buck and Bell case, Pierce Butler, was a devout Catholic. And it was only more conservative Catholics, Jews and Protestants who opposed eugenics at the time.
Unfortunately, progressives were for it. So it's a shame that Brandeis joined this opinion, but at least unlike Holmes, there's no evidence that he himself supported the dreadful result in the case.
GROSS: Another low point on the bench for Justice Brandeis - he voted to exclude a Chinese-American child from public school.
ROSEN: He did, again, this is - an overwhelming majority of the court holds the same thing. He was a passionate defender of judicial restraint. And he believed that unless the Constitution clearly and unequivocally and textually prohibited a particular value, then courts should generally allow the states as laboratories of democracy, or even the federal government, a broad degree of leeway.
It's this judicial restraint side of his jurisprudence that's made him a hero to conservatives like Chief Justice John Roberts, the late Justice Scalia. All cited his opinion in a case called Ashwander, which basically says, as long as you can avoid a constitutional question, do it. If there's some plausible grounds for deferring, you should.
These, again, are unfortunate parts of Brandeis's legacy that he shared with most progressive and conservative justices of his era. But what's inspiring about him was that he combined this general tendency towards judicial restraint with a willingness, vigorously and in a visionary way, to enforce constitutional values in free speech and privacy cases when he thought the Constitution compelled it.
GROSS: My guest is Jeffrey Rosen, author of the new book "Louis D. Brandeis: American Prophet." After we take a short break, we'll talk about how the Supreme Court has been functioning with only eight justices since the death of Justice Scalia. And we'll talk about the likely vacancies the next president will have to fill. Also, Maureen Corrigan will review one of the summer's most anticipated novels. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross back with Jeffrey Rosen, author of the new book "Louis D. Brandeis: American Prophet." One hundred years ago, Brandeis became the first Jewish Supreme Court justice. Rosen describes Brandeis as the most farseeing progressive justice of the 20th century.
Rosen is the president of the National Constitution Center in Philadelphia, a professor at George Washington University School of Law and a contributing editor of The Atlantic.
Let's talk about the present. So since the death of Justice Scalia, there have been eight Supreme Court justices. Judge Merrick Garland does not look anywhere close to getting a confirmation hearing. That might never happen. And the court is very divided. There's a lot of decisions where it would be four to four.
So observing the court as you do, how do you see the court dealing with that?
ROSEN: Chief Justice John Roberts cares a lot about unanimity. His hero is John Marshall. And he's pledged to avoid divided decisions and to encourage the court to compromise. Brandeis would've been encouraged that in at least a few occasions since Justice Scalia's death, the court has avoided four-to-four splits and come up with compromises - in the case involving contraception funding and religion, for example.
I think now the Supreme Court under Chief Justice Roberts faces a moment of truth. Will it return to the polarized four-to-four or when there's a new justice confirmed five-to-four cases that had existed before? Or will this habit of unanimity that the court has begun to experience continue?
Chief Justice Roberts told me in an interview right as he was starting as chief that he hoped that achieving unanimity in smaller cases would get the justices into the habit of achieving it in larger ones. And I think Brandeis would hope that the result of this long wait would be that when we do have a new justice, there's less polarization than there was before.
GROSS: Scalia was, I think it's fair to say, a very ideological justice and believed firmly in originalism, that you interpret the Constitution not as a living document but as a document that means what it says. And you just have to figure out what is it exactly that the founding fathers intended when they wrote the Constitution?
So with him absent, does it change the arguments that the justices are likely to hear in the court? I mean, it strikes me he was probably a very persuasive and powerful presence. And certainly, Justice Thomas, I think, was very much in sync with Justice Scalia. But Scalia was the writer. Scalia was the speaker. Scalia was considered, like, the intellect more so, I think it's fair to say, than Thomas.
ROSEN: Well, Justice Thomas has his own very strong and powerful view of these matters. But you're absolutely right that with Justice Scalia's death, Justice Thomas is the only self-conscious originalist left on the Court. And Chief Justice Roberts and Justice Alito and Justice Kennedy are not originalists.
So the question is what will be the conservative philosophy moving forward, and just as importantly, what will the progressive philosophy be to counterbalance it?
GROSS: So it looks like, you know, Republicans will continue to block President Obama's nomination of Judge Merrick Garland. Do you agree with that, that they're not budging on that?
ROSEN: Well, we'll see what happens after Election Day. If Senator Clinton wins, they may change their minds, in which case we could see a quick confirmation.
GROSS: Change their minds 'cause they think Hillary Clinton would nominate somebody perhaps more liberal than Justice Garland?
ROSEN: Correct. It's impossible to imagine a more moderate and consensus-like candidate than Merrick Garland. Brandeis would've approved.
GROSS: So let's look up what's likely to happen in the court in the next four years. How many justices do you think are likely to retire? I mean, we have one vacancy now. How many more do you expect?
ROSEN: Justice Ginsburg has said that she is ready to retire after she surpasses Brandeis' term of service, which she will do soon. Brandeis is her hero, and she told me in this book. And it's plausible that she will retire...
GROSS: That's her benchmark?
ROSEN: It had been. She said a few times that she admired him so much. And she measured the time that he served between 1916 and 1939. And she's interested in meeting that record of service. And justice - other justices just demographically might retire. Justice Breyer might choose to retire. And there could be more.
So it's certainly not implausible to think that the next president - President Obama has his nominee, and the next president could have an additional two nominees or maybe even more.
GROSS: So there's one vacancy now. There's likely to be two more. So that would have a huge impact on the future direction of the Supreme Court for many years
ROSEN: It's impossible to understate the relevance of the Supreme Court in this election. Citizens should vote for the presidential candidate who most coincides with their vision of the Constitution because even the confirmation of a single justice, even just Merrick Garland's confirmation would transform the law in a series of areas from campaign finance to affirmative action to voting rights and more in a way that will affect the court for decades to come.
So people have been talking about the Court in the election for a longtime. This time, it's happening. Vote for the candidate whose view of the Constitution coincides with your own.
GROSS: Just amplify that a little bit. Like, what kinds of issues are likely to be at stake in the Supreme Court in the next few years?
ROSEN: Affirmative action, voting rights, campaign finance...
GROSS: Voter ID laws.
ROSEN: Voter ID laws. The progressive justices as well as the presidential candidate Hillary Clinton have signaled a willingness to overturn the Citizens United case. And then there are a whole series of issues that we've been discussing in connection with Brandeis - the future of free speech, the future of privacy and surveillance and new technologies like brain scans or drones that could track us door-to-door.
Is a warrant required or not? Some of these issues are ones where there's bipartisan consensus, like surveillance and privacy, others are sharply divided down the middle, like cases involving affirmative action, voting rights and campaign finance. Not since - I've been teaching law for a long time.
The prospect of liberal majority has not prevailed since the Warren era of the 1960s long, long ago. There's a huge amount at stake.
GROSS: You describe the late Justice Scalia as Hamiltonian in this year where Alexander Hamilton has become iconic because of a Broadway show. What is the comparison?
ROSEN: Justice Scalia embraced a sweeping vision of executive power. He believed that the court should generally defer to the president and give him or her broad discretion. In most cases, at least before he began to question the Affordable Care Act, he'd also been differential to Congress's power to regulate and to administrative agencies.
It's striking that we live in a Hamiltonian world, and not just because of the hit musical. The Democratic and Republican presidential candidates have embraced a notion of strong executive power and a broad regulatory state. And Hillary Clinton and Bernie Sanders as well as Donald Trump are Hamiltonian.
I think that's why - that helps me answer the question of why it is that the great Justice Brandeis, who has so much to say to us today, isn't more invoked in this campaign. And I think it's because his Jeffersonian tradition has gone out of fashion. But it has so much to teach us because it's rooted in an attack on economic inequality, on a crusading antimonopoly, anti-oligarchic notion that you have to protect small business people and American consumers over big business.
And I think it is time to resurrect that aspect of the Jeffersonian tradition because it's resonating so much. Feel the Bern progressives and Tea Party libertarian conservatives are united in their suspicion of big corporations. And in different ways, they have come to understand the menaces of big government.
So the show is great, and, you know, we're all Hamiltonians now 'cause we love the musical, but Hamilton was not a fan of economic equality - quite the opposite. He was, according to Jefferson, an aristocrat who wanted to favor the moneyed classes.
And as Sean Wilentz argues in his new great book "The Politicians And The Egalitarians," that tradition, the Jeffersonian tradition of attacking economic inequality by attacking monopoly was carried from Jefferson to Jackson to Brandeis and Wilson. That part of their legacy remains really, really relevant. And I think it's extremely important to resurrect it today.
GROSS: Did you see "Hamilton?"
GROSS: Do you find it kind of paradoxical that he's becoming this hero, but he wasn't egalitarian in that sense?
ROSEN: It is - it's an incredible paradox and a really interesting one. The character Jefferson gets a bum rap in the book. And Ron Chernow's wonderful book also doesn't like Jefferson and arguably doesn't give due respect to that antimonopoly tradition. So Hamilton was embraced as a hero partly because of Jefferson's terrible blind spot on race, for which he deserves censure.
But the result of that, we've lionized this aristocrat who favored big banks and financiers and forgotten the philosopher, Jefferson and his heirs like Brandeis, who actually stood up for economic quality. It's all because of the cross fissures about race where Hamilton was better than Jefferson. But it would be a shame if in all of our legitimate excitement about the musical, we forget these egalitarian tradition.
Of Course, what I would love is Lin-Manuel would do a rap version of other people's money. We need to have a rap...
GROSS: (Laughter) A Brandeis book.
ROSEN: A rap version of Brandeis would be very, very effective.
GROSS: If you're just joining us, my guest is Jeffrey Rosen. He's the author of the new book "Louis D. Brandeis: American Prophet." And Brandeis was confirmed as a Supreme Court justice a hundred years ago. Rosen is also the president of the National Constitution Center, which is actually located right across the street from our studios in Philadelphia.
We're going to take a very short break, and then we'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jeffrey Rosen. He's a legal scholar who's the author of the new book "Louis D. Brandeis: American Prophet." Brandeis was confirmed as a Supreme Court justice 100 years ago in 1916 and served until 1939. Jeffrey Rosen is the president of the National Constitution Center in Philadelphia. He's a professor at George Washington University Law School and a contributing editor for The Atlantic.
I want to quote a couple of things that Donald Trump has said in relation to Judge Curiel who is the judge in the Trump University lawsuit against Donald Trump. Trump's - and Judge Curiel is - his parents were or are Mexican immigrants. The judge was born in Indiana.
So Donald Trump said I'm building the wall. I'm building the wall. I have a Mexican judge. He's of Mexican heritage. He should have recused himself, not only for that, for other things. And he also said - he accused the judge of bias. And he said they ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace, OK. But we will come back in November. Wouldn't that be wild if I am president and come back and do a civil case?
Is there precedent for a presidential candidate to be speaking of a judge like that in ways that sound almost, like, threatening? Like, if I'm president, you know, people might come back at you.
ROSEN: I don't know of a lot of precedents. The most famous one is Andrew Jackson who famously said, after John Marshall made a decision in a case involving the Cherokee Indians - John Marshall has made his decision. Now let him enforce it. But he certainly didn't attack John Marshall's parentage or heritage.
Jefferson attacked the Adams judges as a bunch of sappers and miners, but, again, not personally questioning their ability to be impartial because of their heritage.
I am struck - I'm going to have to bring it all back to Brandeis. And he just insisted that different ethnicities were necessary to achieve the cultural pluralism that made America great. And he loved Kallen's metaphor of an orchestra where every ethnic group is the natural instrument and the harmonies and dissonances and discords of them all may make a symphony of civilization. That's Horace Kallen who inspired Louis Brandeis.
GROSS: What's the general ethics when you're involved in a court case of publicly questioning a judge's ability to rule on your case, especially of questioning their ability because of their ethnic heritage? Trump also said - let me quote him on this - well, let me paraphrase - he said he wasn't sure that a Muslim could remain neutral on the case either.
ROSEN: It was striking to see Mitch McConnell and others criticize Trump for the suggestion that a judge, because of his ethnic heritage, is not able to be fair, that American law recognizes no such claim. And of course, for a president to be attacking a particular judge because of his ethnic heritage would raise constitutional issues as well.
GROSS: If you followed that logic, only white people could preside over cases pertaining to white people.
ROSEN: It's so interesting that the Supreme Court has rejected that precise notion in its cases involving preemptory strikes of jurors and has insisted that all citizens have a capacity to transcend their backgrounds and to deliberate impartially. Back to Brandeis again, the whole ideal of the Brandeisian jury is as a public school where people can set aside their background and reason together the necessity of public reason. And all of that is threatened when we try to reduce people to their ethnic backgrounds.
GROSS: So there's one thing I want to quote before we end. When you were starting off your career as a journalist - as a legal journalist, you wanted to interview Justice Scalia. And you sent him a note asking for an interview. And he wrote you back saying that, as a judge, he had a uniform policy or, I should say, as a justice, he had a uniform policy of declining interviews about himself in accordance with the judicial tradition of avoiding publicity. And then he wrote, quote, "I am sorry to disappoint and wish both of us good luck in your article."
(Laughter) I thought that was hilarious.
ROSEN: It was so charming and just completely encapsulated the wit and intelligence of the man. And for me, that note was a perfect encapsulation of a Scalia opinion because he says I'm tempted, personally, to give you the interview because I know I'd enjoy it. But my job as a judge is to resist temptation and to restrain myself.
And for that reason, I think, Justice Scalia really did change the terms of constitutional debate by focusing liberals as well as conservatives to emphasize text and history. Justice Elena Kagan said that he did more to change the terms of debate than anyone. We're all originalists now. And I hope that - for me, Scalia and Brandeis would have agreed, at least, on the importance of beginning with text and history and then they would have disagreed about how much translation to do after that.
GROSS: But I thought it was really funny when he said - I which both of us good luck in your article.
GROSS: So do you think he was pleased with your article?
ROSEN: I'm not sure that he was crazy about it because it argued that although he deserved great respect for having a constitutional philosophy to betray, he did sometimes betray that philosophy. But I had a wonderful dinner with him years later. And he was so candid. And I really enjoyed asking him - he was often criticized for the fact that Brown v. Board of Education is impossible to reconcile with the original understanding of the 14th amendment. So I just - something seized me with confidence and I boldly said, you know - Mr. Justice, how do you reconcile Brown with originalism? And he thought for a moment, threw back his head and laughed and said - you know what? Nobody's perfect.
GROSS: So I've interviewed you before from when you were a journalist before you were head of the National Constitution Center. And I know that you have, you know, strong views on the Constitution and on things like privacy and civil rights. And in your position now as president of the National Constitution Center, it's your job to be neutral on issues. I mean, the - Congress kind of created this mandate for the National Constitution Center to bring in people from all sides and debate and speak, but for the center to not take a point of view. Is that ever frustrating for you? Because I know you have a point of view.
ROSEN: It's not frustrating. It's rewarding. And frankly, I've become uninterested in my own point of view and much more interesting in bringing other people together, more interested in listening than in talking. It's an incredible patriotic service that the Constitution Center can fulfill bringing all sides together in these polarized times. It's so unique. It's much larger than I am. I'm much more - and it's a teaching enterprise, too, encouraging citizens to believe there are good arguments on both sides. Just take the time to hear both of them and be in the convening space that presents those arguments. That is such a more fulfilling mission than anything I've done before that I just feel like in constitutional heaven and feel lucky to go to work every day.
GROSS: Jeffrey Rosen, thank you so much for talking with us.
ROSEN: Thank you. It was such a pleasure.
GROSS: Jeffrey Rosen is the author of the new book "Louis D. Brandeis: American Prophet" and is the president of the National Constitution Center in Philadelphia. Coming up, Maureen Corrigan again will review one of the summer's most anticipated novels. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.
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