Louis Brandeis

On this day in 1916, Louis Brandeis became the first Jewish person to be appointed to the U.S. Supreme Court, where he would serve until 1939.

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Born to immigrants fleeing antisemitism from what was then the Austrian Empire, he graduated Harvard Law at only 20 years old, with what is rumored to be the highest GPA in the school’s history.

As early as 1890, he helped develop the concept of a “right to privacy” and rallied against big banks, powerful corporations, monopolies, political corruption, and mass consumerism, all of which he felt were anathema to American values. As an attorney, he devoted most of his time to public causes, earning the moniker of the “People’s Lawyer” for his insistence on working pro bono in order to take on the most important issues of the day. He was also dubbed the “Robin Hood of the law” for his fight against railroad monopolies, defense of workers’ rights, and the conceptualization of the newly created Federal Trade Commission, which protected consumers from unfair business practices. He was also recognized for developing the “Brandeis Brief,” which relied on expert testimony from people in other professions to support his case, setting a new precedent in evidence presentation.

Brandeis’ nomination to the Court was so fraught that, for the first time in its history, the Senate Judiciary Committee held a public hearing on it. According to fellow Justice William O. Douglas, it was controversial because Brandeis was a “militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible… [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” Indeed, opponents regarded him as an anti business “radical” and “agitator” who lacked the “dispassionate temperament” needed to be a judge. Blatant anti semitism was, of course, also a factor. But enough people came to his defense that he won the nomination 47 to 22.

Ultimately, Brandeis became one of the most influential figures ever to serve on the Court, his opinions recognized by legal scholars as some of the “greatest defenses” of freedom of speech and the right to privacy ever written by a Justice. Throughout my first year of law school, I came across many of his brilliant opinions, many of them lonely dissents in the face of familiar uphill battles against privacy violations — see his prescient dissenting opinion in Olmstead v. United States (1928):

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 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 against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

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The Anniversary of Separate But Equal

On this day in 1896, the U.S. Supreme Court ruled in the landmark case Plessy v. Ferguson that racial segregation in public transportation was constitutional under the “separate but equal” doctrine.

The effects were immediate: already significant disparities in funding for segregated schools widened, flying in the face of the vague doctrine. States that had successfully integrated blacks quickly adopted legislation that reversed the progress made during Reconstruction. These segregation laws would eventually become known as  the Jim Crow system. Continue reading

The Problem With How We Treat Drug Addicts

The United States is facing an opioid and heroin epidemic that is killing and harming record numbers of people; more people died of overdoses in 2014 than in any other year on record.

One of the latest and most troubling images of this problem was a widely circulated photo of a couple passed out in their car with their four year old left watching from the back city. The City of East Liverpool, Ohio saw fit to share the photo on its Facebook profile to “show the other side of this horrible drug”. Continue reading

Space Law

When it comes to space exploration, law is probably furthest consideration from anyone’s mind. But an article in Foreign Policy examines the importance of developing a more sophisticated, comprehensive legal framework to govern human activities beyond Earth. A rather obscure U.N. agency, joined by similarly lesser known experts and institutions, recently convened a special session on this matter. Continue reading

Six Alternatives To Policing

While law enforcement of some form or another is as old as humanity, the use of an organized, permanent police for to maintain order emerged only around two centuries ago. This, along with mounting scrutiny and debate regarding the effectiveness of the law enforcement system, has led some, like Rolling Stone’s José Martín, to question whether police are even necessary.

It seems like a rash, if not unthinkable, claim; police are taken for granted in just about every place where stability and rule of law exist. It is an institution most people consider to be a given in civilized society, let alone something whose existence should be questioned. What would be the alternative?

Well, Martín lays out at least six of them, all of which have been proven effective, or at least feasible, to some degree. Continue reading

The Plight of Native Americans

Generations of plague, genocide, and oppression continue to take their toll on America’s indigenous people. The subsequent marginalization has made them the most victimized group when it comes to encounters with law enforcement. As The New York Times reports:

American Indians are more likely than any other racial group to be killed by the police, according to the Center on Juvenile and Criminal Justice, which studied police killings from 1999 to 2011 (the rate was determined as a percentage of total population). But apart from media outlets like Indian Country Today, almost no attention is paid to this pattern of violence against already devastated peoples.

When it comes to American Indians, mainstream America suffers from willful blindness. Of all the episodes of police violence listed above, only the killings of Mr. Williams and Mr. Goodblanket received significant news coverage outside Indian circles, the latter only in an article for CNN.com by the Oglala Lakota journalist and activist Simon Moya-Smith. The Williams shooting, which was the subject of public outcry, was covered by a major local news site, The Seattle Post-Intelligencer, as well as by The New York Times.

The lack of public outcry towards this problem, and indeed towards pretty much all the issues affecting American Indians, has much to do with their low population and consequent lack of presence. Continue reading

Is The Constitution What’s Wrong With America?

The Atlantic’s Yoni Appelbaum makes the provocative case that what ails the United States’ political system is the very document it is founded upon. Put another way, the problem with America today is not that it has deviated from the Constitution, but on the contrary, its politicians and citizens remain too true and reverential to it.

This is idea is drawn from The Royalist Revolution: Monarchy and the American Founding, a 2014 book written by Harvard political theorist Eric Nelson. The argument begins by tracing the roots and sentiments of the American Revolution to Britain’s own historical debate about executive versus legislative power. It is a long excerpt, but it is well worth reading, since this is an often-overlooked context and influence for the Patriots.  Continue reading

Birthright Citizenship in the U.S. and Around the World

As a nation of immigrants, it is not surprising that the United States adheres to a concept of citizenship known as jus soli, or birthright citizenship, whereby anyone born on American soil is automatically a U.S. citizen — regardless of their parents’ legal status. My making it easier for people to become politically and civically integrated after just one generation, the U.S. has been able to harness the ideas, skills, and labor of the world, whilst also securing the loyalty and contributions of millions.

Birthright citizenship has been (an albeit controversial) bedrock of U.S. law and identity since the mid-19th century, around the time that immigration kicked into high gear. Before the U.S. Civil War, African Americans — even those freed from slavery or born to freed slaves — were emphatically not citizens; the Supreme Court ruled as such in Scott v. Sandford in 1857.

Only with the ratification of the Fourteenth Amendment in 1868 — one of the three post-Civil War “Reconstruction Amendments” that greatly expanded political rights — were “all persons born or naturalized in the United States…citizens of the United States and of the State wherein they reside”, to quote the first sentence of the amendment.

While the language of the amendment made it very clear that black Americans would enjoy U.S. citizenship, things weren’t so cut-and-dry for other groups. In particular, it did not address the status of Native Americans born on reservations, which were and remain legally sovereign entities (a very complex arrangement that is often subject to disputes to this day). And what about children born to Chinese immigrants, who were explicitly prohibited from being naturalized citizens via the 1882 Chinese Exclusion ActContinue reading

U.S. Government Rules Against Bans of Homeless People Sleeping Outside

Boise, Idaho is one of a multitude of cities across the United States that prohibits homeless people from sleeping or camping in public spaces. Following a lawsuit against the city brought by the National Law Center on Homelessness & Poverty (NLCHP), the U.S. Department of Justice weighed in with a statement of interest that could greatly impact local policy towards homeless people well beyond Boise.

The crux of the DOJ argument is that these bans violate the Eighth Amendment’s protections against cruel and unusual punishment. The reasoning is as follows:

When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.

According to the New York Timesthis is the first time in twenty years that the Justice Department has gotten involved in this “still-unsettled” area of law. In doing so, the federal government is basically warning cities across the nation to treat homelessness more humanely. Either lift the bans, or ensure that there is adequate shelter space and housing so that homeless people do not have to sleep outside in the first place. Continue reading