Hooray for Justice Brandeis

Below is an editorial from Today's New York Times about Justice Brandeis and the most important contribution he may have made to the law, namely, forcing the Justices to contemplate the factual real world consequences of their decisions. Worth reading in this era of constant carping about "activist judges."

Looking Back on Louis Brandeis on His 150th Birthday


By ADAM COHEN
Published: November 14, 2006

In 1908, Louis Brandeis turned American law on its head with the “Brandeis brief.” The Supreme Court was in the midst of the notorious Lochner era, in which a pro-business majority routinely struck down laws protecting workers’ health and safety. 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 just two pages to legal analysis. He spent more than 100 pages setting out statistical and sociological data on the harm that long workdays did to women. His use of facts and sociological arguments was both shocking and enormously successful. The court upheld Oregon’s law, 9 to 0.

Brandeis, whose crusades against insurance companies and banks earned him the title “the people’s lawyer,” was born 150 years ago this week. He has many claims to fame: champion of the New Deal, first Jewish Supreme Court justice, creator of the legal doctrine of privacy. But it is Brandeis’s insistence on injecting facts and real-world analysis into the law that is his most lasting achievement, and one that resounds especially strongly today, when “reality-based” logic is so embattled.

Brandeis was born in Louisville, Ky., shortly before the start of the Civil War. As a Southerner and the son of a small merchant, he grew up with a Jeffersonian mistrust of big business. He entered Harvard Law School in 1875, and after graduating first in his class, remained in Boston to practice law. As a young lawyer, he 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.”

Brandeis was drawn to social causes. His first major victory was blocking a company from securing a monopolistic right to operate Boston’s subway system. Later, as special counsel to the Interstate Commerce Commission, he took on the railroad barons, insisting that they should not get rate increases “so long as the vicious system of interlocking directorates makes it impossible to know how much of the money is honestly and efficiently spent.”

And he fought for workers. The Brandeis brief may not look particularly progressive by contemporary standards. It emphasizes women’s feeble physical condition compared with men’s, and quotes such authorities as a cotton mill machine operator who told a Senate committee, “I have noticed that the hard, slavish overwork is driving those girls into the saloons.” But the brief was perfectly calibrated for the Supreme Court of its day. In appealing to the justices’ paternalistic concern for women, it found a chink in the court’s pro-business armor.

Brandeis was so enamored of facts and real-world consequences that he found himself moonlighting as a journalist. He wrote a fine series of muckraking articles on the “money trusts” for Harper’s Weekly, which were later published as the book “Other People’s Money and How the Bankers Use It.”

When President Woodrow Wilson nominated Brandeis to the Supreme Court in 1916, conservatives worried that he would inject radical new ideas into the law. He did, on subjects ranging from civil liberties to workers’ rights. (In 1937, he was part of the five-member majority that finally ended the Lochner era by upholding a state minimum wage law.) But it was his methodology, as much as his end results, that shook up the legal world. To Brandeis, every opinion — even on a subject as mundane as whether a state can require ice sellers to get a permit — was a chance to hold forth on the case’s practical importance.

For Brandeis, raw data was always key. Oliver Wendell Holmes, his distinguished senior colleague, once complained that Brandeis “drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact — suggesting the textile industry.” Holmes protested, “I hate facts,” but grumpily took a government report along with him on his summer vacation.

The Brandeis brief today bears the truest mark of a transformative idea: as radical as it was in its time, today it looks thoroughly conventional. Generations of litigators were quick to adopt its approach. The civil rights lawyers in Brown v. Board of Education prevailed in large part because of their Brandeisian briefs that presented social science data on the effect of segregation on black children.

We are living in an era when facts, and rational analysis, are on the ropes. The president has been inhabiting a world, Ron Suskind wrote in a 2004 New York Times Magazine article, that scorns “the reality-based community.” Congress routinely adopts policies that cater to special interests, which are then justified by the sort of smarmy, fact-free spin that the comedian Stephen Colbert has labeled “truthiness.”

But courts operating on the Brandeis model have, at their best, been a check on this disturbing trend. In its proudest moments, from the civil rights rulings of the 1960s to recent decisions reining in the Bush administration’s war-on-terror excesses, the Supreme Court has insisted on focusing resolutely on the facts, and on the practical effect of the challenged policies on real people.

Decisions like these are Brandeis’s true legacy. His greatest lesson was that — as he wrote in a famous dissent, excoriating the majority for not letting government do more to battle the Great Depression — “in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.”

Election Celebration

How WONDERFUL to have been so happy the week after an election instead of in mourning. The first election I was able to vote in was 1980 - the beginning of the last 26 years of the pendulum swinging conservative - and away from me. Now, I hope it is beginning to swing back. The excesses of the 60s combined with Watergate and the turmoil of the Carter years seem to have scared people to death, so they were thrilled by Reagan's promise of a "shining city on a hill." Unfortunately, the conservatives have failed miserably at shining up America. Mostly, they just managed to keep people distracted with side issues while they pick the pockets of the average American. Abortion and Gay Marriage are the political equivalent of the bump and stumble that pick pockets use.

I hope that America is finally waking up, realizing that if they don't face the truth now, the national debt will simply continue to baloon beyond control and none of our REAL problems, health care chief among them will get solved.

Of course, the current crop of democrats will need LOTS of help and a back-bone implant if they are going to solve these problems. But the most important thing is for the PEOPLE to wake up, then we can wake up the politicians who are willing to listen and replace the others.

The importance of questioning

Below is the text of a speech delived brilliantly as usual by Spencer Tracy at the end of the trial portrayed in "Judgment at Nuremberg." It enscapsulates the message of the movie- that even good people who go along with tyranny must be held responsible for not having stood up for what was right. One of the men on trial, Ernst Janning, played by Burt Lancaster, was clearly a very intelligent and at heart a very decent man, who nonetheless cooperated with and ran the judicial branch under the Nazis.


Janning's record and his fate illuminate the most shattering truth that has emerged from this trial: If he and all of the other defendants had been degraded perverts, if all of the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake, or any other natural catastrophe. But this trial has shown that under a national crisis, ordinary -- even able and extraordinary -- men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat at through trial can ever forget them: men sterilized because of political belief; a mockery made of friendship and faith; the murder of children. How easily it can happen.

There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

Later, Janning asks to see the Judge played by Tracy to insist to him he knew nothing of the holocaust, saying:

"Those millions of people, I never dreamed it would come to that."

Tracy's character responds:

"Herr Janning, it came to that the very first time you sentenced a man to death you knew to be innocent."

We must remember that it isn't morality that prevents the US from becomming Nazi Germany, it's the continued questioning of one's government and demanding that it live up to the ideals on which it was founded.

Jack's House - New York Times

This poem from this morning's NY Times is EXCELLENT!
Jack's House
Article Tools Sponsored By
By HART SEELY
Published: March 31, 2006


These are the men
That fleeced the tribes
That paid the money
That made the bribes
That purchased the Congress that
Jack built.

This is the Duke
That sailed the yacht
That raised the eyebrows
And got him caught,
Who helped Mitch Wade,
Who bought Duke's land
And kicked in 700 grand;
Which raised Duke's taxes,
And gave Duke pain;
So Wade paid the tab
On Duke's capital gain.
Bigger than Abscam:
Randy "Duke" Cunningham!
Top gun in the Congress that
Jack built.

This is Bob Ney,
Who knew the fine print
That could pass a casino
And rev up its mint,
Who spawned the e-mail
Where Jack foretold:
"Just met with Ney.
"We're [expletive] gold!"
And Ney in 2000,
A moment quite checkered
Ripped magnate Gus Boulis
In the Congress'nal Record.
His tirade was meant
To frighten the fellow,
Who cops say was shot
By Big Tony Moscatiello,
Who got a small fortune
From Jack's pal in D.C.,
A guy Ney said was known
For his "honesty."
Their pal was indicted
And then copped a plea
Guilty of fraud
And conspiracy.
For creating the vibes
That condoned the bribes
That corrupted the Congress that
Jack built.

This is DeLay,
Who built the machine
That redrew the districts
And raised the green,
That decided the races
That claimed the new seats,
That made the new friends
That owned luxury suites,
That held big galas
That brought the donations
That helped him to greet
The great Coushatta Nation!
With 800 members
And fund-stream support
From the famous Coushatta Casino Resort!
Which paid several million
For Jack to abort
A rival tribe's parlor
In nearby Shreveport,
Which prompted the letter
That outlined their claims
That went to Gale Norton,
Co-signed by these names:
Tom DeLay, Eric Cantor,
Roy Blunt, the chief whip,
Speaker Dennis Hastert.
That's the House leadership!
That played the game
And wears the shame
That hangs over the Congress that
Jack built.

This is the Jack,
Jack Abramoff,
Who bought the souls,
Then sold them off,
Who shook the hands
And financed the houses
And feted the staffs,
And hired the spouses,
And fleeced the tribes
And spread the bribes
That ransomed the Congress that
Jack built.

Hart Seely is the editor of "Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld."Jack's House - New York Times

What's Better? His Empty Suit or Her Baggage? - New York Times

Read Maureen Dowd's column from today - (copied below). Maybe it isn't too early for Barak Obama? But what's really interesting is that Maureen Dowd realizes what so few members of the "Democratic Leadership" seem able to grasp: WE DO NOT WANT HILLARY CLINTON AS OUR PRESIDENTIAL CANDIDATE IN 2008!!!!!!!!!!! Don't they see how much baggage she has? Her husband can't keep it in his pants, She's got the personality of a headmistress and she has the worst of her husband's political failings - his tendency to waffle -- whithout any of his charm. She is quite simply un-electable as anyone who is blue in a red state could tell these alleged leaders if they would bother to listen.
What's Better? His Empty Suit or Her Baggage? - New York Times

March 15, 2006
Op-Ed Columnist
What's Better? His Empty Suit or Her Baggage?
By MAUREEN DOWD

WASHINGTON

There's only one reason I continue to brave Washington's dreary formal press dinners, which are so calcified they're a bad cross between a zombie movie and those little Mexican Day of the Dead sculptures.

I find it highly instructive to hear politicians make humor speeches. It's difficult, and few pols do it well.

It took Bill Clinton almost two terms to make a funny speech. He kept letting a petulant tone creep in. Even though W. would probably rather spend the night in Baghdad than go to a banquet, way past his bedtime, where he's getting lampooned by reporters still able to drink, he was a master right from the start.

Lynne Cheney is a practiced speaker, but a bit tone-deaf on humor. At the Gridiron dinner here on Saturday, she said of her husband: "He has a great sense of humor. Just the other day I asked him, 'Do you know how many terrorists it takes to paint a wall?' And he answered right back, 'It depends on how hard you throw them.' "

People laughed, but it felt creepy, the kind of humor that makes more terrorists.

Everyone was curious to hear Barack Obama, the Democratic speaker. He arrived last year as a star, then lapsed into a cipher, even getting punk'd by John McCain last month. In the capital's version of "Dancing With the Stars," Senator Obama won, turning in a smooth, funny performance that lifted him from his tyro track.

He tweaked fellow Democrats, telling the white-tie crowd: "Men in tails. Women in gowns. An orchestra playing, as folks reminisce about the good old days. Kind of like dinner at the Kerrys."

He mocked the president's unauthorized snooping, saying he'd "asked my staff to conduct all phone conversations in the Kenyan dialect of Luo." He advised W. to "spy on the Weather Channel, and find out when big storms are coming."

After saying he'd enjoyed the Olympic biathlon of shooting and skiing, he, deadpan, turned to Dick Cheney: "Probably not your sport, Mr. Vice President."

It may be true that Americans, as one Democrat told me, "will never elect a guy as president who has a name like a Middle East terrorist." And it may be true that Democrats are racing like lemmings toward a race where, as one moaned, "John McCain will dribble Hillary Clinton's head down the court like a basketball."

But the clever, elegant performance by Mr. Obama — who is intent on keeping his head down in the Senate until he, too, can be a tedious insider — underscored the Democratic vacuum. Not only do the Democrats "stand for anything," as Mr. Obama semijoked, but they have no champion at a time when people are hungry for an exciting leader, when the party should be roaring and soaring against the Bushies' power-mad stumbles. They should groom an '08 star who can run on the pledge of doing what's right instead of only what's far right.

The Republicans won with Ronald Reagan and W. by taking guys with more likeability and sizzle than experience. They figure they'll win in a McCain-Hillary duel by running a conservative beloved by the media and many Democrats against a polarizing Northerner who can't win any red states despite pandering to conservatives.

The weak and pathetic Democrats seem to move inexorably toward candidates who turn a lot of people off. They should find someone captivating with an intensely American success story — someone like Senator Obama, Tom Brokaw or some innovative business mogul who's less crazy than Ross Perot — and shape the campaign around that leader. Barack Obama is 44. J.F.K., who had a reputation as a callow playboy and lawmaker who barely knew his way around the Hill, was 43 when he became president.

With seniority comes dullness. And unless you can draw on it in desperate times, promise is merely a curse.

Democrats think Senator Potential's experience does not match Senator Pothole's. Much of hers is as a first lady who bollixed up chunks of domestic policy. They also suspect she may be more macho than he is. They fret that the freshman Illinois senator would wilt against the Arizona senator's foreign policy experience — and he probably would. But Mr. McCain, a big hawk on Iraq, has talked of sending more troops, and his mentor was Henry Kissinger. These are not recommendations.

W. had the foreign policy "dream team," and it shattered our foreign policy, ideals and self-image. Despite hundreds of years of combined experience, the Bushies rammed through cronies and schemes that were so destructive, it will take hundreds of years to straighten out the mistakes.

The Democrats should not dismiss a politically less experienced but personally more charismatic prospect as "an empty vessel." Maybe an empty vessel can fill the room.

KR Washington Bureau | 02/28/2006 | Intelligence agencies warned about growing local insurgency in late 2003

Big suprise -- the Bushies have known for two years (along with everyone else with any intelligence) that the insurgence in Iraq had roots in sectarian violence that had nothing to do with being loyal to Saddam or foreign radicals! The stupidity and incomptence of these people is almost incomprehensible.KR Washington Bureau | 02/28/2006 | Intelligence agencies warned about growing local insurgency in late 2003

War of the Worlds - New York Times

Good piece by Tm Friedman today. It's true that the Bushies totally deserve the mess they are in over this port thing, but the level of nationalist tension in the world today is reminiscent of pre-WWI. VERY SCARY. I read the other day that someone in Iran renamed Danish Patries to something Mohammed pastries in response to the cartoon mess. It was "freedom fries" all over again, which makes it clear where this xenophobia began, here, post-9/11 thanks to Bush and company. It's dangerous and it is spreading.War of the Worlds - New York Times

The Silencing Of Science

This is CLASSIC Bush administration. I've read dozens of articles over the last 5 years outlining the way this administration has politicized science more than any other administration ever has.The Silencing Of Science

Who's Hormonal? Hillary or Dick? - New York Times

Thank You Maureen Dowd for recognizing that Hilary Clinton has no clothes on - politically speaking, but she's still not as evil as Cheney and Co.Who's Hormonal? Hillary or Dick? - New York Times

Helping Bill O'Reilly - New York Times

This is AWESOME - fund a trip to Africa for Bill O'Reilly so he can see what real injustice looks like as opposed to the nonsense he complains about on his show.Helping Bill O'Reilly - New York Times

Tax Cut Lunacy

Here's an excellent op-ed piece about the need for tax increases combined with national health insurance. Both are absolutely necessary to our future and virtually impossible to achieve with today's leadership!Tax Cut Lunacy