The Tiny African Country Taking on a Genocidal Government

Meet Abubacarr Tambadou, the Justice Minister of The Gambia—a tiny African country barely twice the size of Delaware and with fewer people than Miami-Dade County—who is taking on one of the worst genocides in the 21st century.

Under his direction, The Gambia is the only country to file a claim in the International Court of Justice (ICJ) against Myanmar for violating the Genocide Convention through its persecution of the Rohingya Muslims, which has killed tens of thousands and driven out over a million more. Tambadou also convinced the 57-member Organisation of Islamic Cooperation to back the effort, bringing a fourth of the world behind him.

Born in 1972 as one of the middle children of 18 siblings, he considered himself lucky for his middle-class upbringing. He had no intention of studying law—having excelled in sports all his life—but the first offer he got was a law program at a British university. After graduating in the 1990s, he returned home to be a public prosecutor.

At the time, Gambia was ruled by a vicious dictator who frequently killed and tortured real or perceived political opponents. In 2000, when security forces killed over a dozen student protestors, Tambadou was roused into pursuing human rights work.

To that end, he soon left Gambia to join the United Nations’ Tanzania-based International Criminal Tribunal for Rwanda (ICTR), where he successfully prosecuted some of the genocide’s most notorious perpetrators, including former army chief Augustin Bizimungu, who was sentenced to 30 years in prison.

As he told the BBC, what he was doing “was not just prosecuting the Rwandan genocidaires”, but “was a way for us Africans to send a message to our leaders… I saw it as more of an African struggle for justice and accountability than a Rwandan one.”

Sure enough, in 2017, Gambia’s dictator fell after 22 years of power. Opposition leader Adama Barrow took power promising to restore human rights and address corruption, prompting Tambadou to return to help lead this effort.

“Twenty-two years of a brutal dictatorship has taught us how to use our voice. We know too well how it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.”

A devout Muslim with a prominent prayer bump on his forehead, Tambadou acknowledged that Islamic solidarity was a factor behind Gambia and the OIC’s actions but emphasized that “this is about our humanity ultimately”.

Indeed, it was after visiting a refugee camp full in Bangladesh of genocide survivors that he was spurred to act. Last spring, Gambia foreign minister pulled out at the last minute from the annual conference of the OIC in Bangladesh, sending Tambadou instead. While there, he joined an OIC delegation visiting overcrowded refugee camps, hearing stories of children burnt alive and women systematically raped; he claimed to even smell the stench of dead bodies from across the border.

“I saw genocide written all over these stories”, he said in an interview, no doubt making the connection between these accounts and what he had learned after ten years prosecuting Rwandan perpetrators for similar crimes.

To that end, his case against Myanmar—which took the world by storm—has for the first time forced its leaders to answer for their alleged crimes. Though the case will no doubt take years to resolve—given the high bar set to prove genocide—the ICJ has since ordered Myanmar to cease its actions against the Rohingya, not buying the argument that it’s simply the result of a broader military conflict.

Yes, I know: It’s a toothless order given the nature of international law. But it’s powerful nonetheless, as many Rohingya themselves agree:

Yet the mere fact that it took place at all counts as a huge moral victory for the Rohingya. For the first time, this group — which has endured decades of systematic discrimination at the hands of its own government — experienced a fair hearing from an impartial tribunal. The power of that realization prompted tearful reactions from Rohingya activists in The Hague.

“It was very emotional to see the military facing charges in a court for the first time,” U.K.-based Rohingya activist Tun Khin told me. “The military have been getting away with human rights violations against us for decades. We have worked so hard for this day.”

And to think it began with a public prosecutor of a small country most have never heard of.

To that end, Mr Tambadou thinks this is the time for The Gambia to reclaim its position on the world stage. “We want to lead by example” in human rights. “The case at ICJ is Gambia showing the world you don’t have to have military power or economic power to denounce oppressions. Legal obligation and moral responsibility exist for all states, big or small.”

Sources: BBC, Reuters, CFR

Swearing an Oath

In light of the fact that some incoming Muslim congresswomen may be sworn in on a Quran (by Mike Pence no less), it is worth remembering that the U.S. Constitution does not require an oath of office to be sworn on a Bible, or on any religious text for that matter.

Article VI, Clause 3, which covers oaths of office, states that while elected officials in both state and federal governments, as well executive and judicial officers throughout the country, are bound “by oath or affirmation” to support the Constitution, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Of course, we have already had Jewish, Hindu, Buddhist, and Muslim representatives and officials, both in Congress and throughout various other state and federal offices, swear on their respective religious texts (Fun fact: In 2007, Keith Ellison of Minnesota, the first Muslim congressperson, was sworn in on a Quran formerly owned and cherished by Thomas Jefferson.)

But many other officials, both religious and secular, have sworn on nonreligious texts, or nothing at all. John Quincy Adams and Franklin Pierce swore on a book of law; Lyndon B. Johnson was sworn in on a Roman Catholic missal; and Teddy Roosevelt, who had to take the oath in a hurry after William McKinley’s assassination, did without anything, since there was no Bible on hand.

Moreover, many Christians are forbidden by their teachings to swear on anything; both Herbert Hoover and Richard Nixon, who as Quakers could technically not swear on anything, could have “affirmed” rather than “sworn” during their oaths, though it appears they did not do so.

The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.

America and its International Commitments

One of the biggest objections to the Iran Nuclear Deal is that it violated U.S. law because it was never approved by two-thirds of the Senate, as required by the “Treaty Clause” (Art. II, Sec. 2) of the U.S. Constitution. (Contrary to the beliefs of many red-blooded Americans, the Constitution gives ratified treaties the same force as domestic law, per the Supremacy Clause.) However, this reflects a fundamental misunderstanding of the deal, the Constitution, and international law.

First, the deal was never binding: It is classified as a “nonbinding political commitment”, which, by definition, and in contrast to a treaty, requires no congressional approval nor is legally binding. Throughout U.S. history, presidents of all parties have made international agreements without the approval of a supermajority of Senators, either through “congressional-executive agreements”—which are ratified by only a simple majority of Congress—or through “executive agreements”, which are made solely by the president without any congressional involvement.

Between 1946 and 1999 alone, the U.S. completed nearly 16,000 international agreements—of which only 912 (5.7 percent) were treaties ratified by the Senate. (Most were congressional-executive agreements.)

While the Constitution does not explicitly provide for these alternatives, these alternatives have long been considered legitimate. Thomas Jefferson, a globalist sellout if we ever saw one, argued that the Treaty Clause procedure is not always necessary; short-term agreements without Senate approval may be better since “when they become too inconvenient, [they] can be dropped at the will of either party”. Most of the Founders did not objective this, because they recognized pragmatic and expedient reasons to allow the president to make international agreements without going through the long and politicized channels of the legislature.

In fact, when Jefferson sought to purchase the massive Louisiana Territory from France, there was some debate as to whether expanding U.S. territory was legal, since the Constitution was silent on the matter. He ultimately prevailed on the argument—backed by the “Father of the Constitution” James Madison—that the executive’s broad foreign policy powers allowed him to acquire the territory through treaty; he subsequently signed an agreement with France in April, announced it publicly in July, and finally got it ratified by the Senate in October.

The Supreme Court has repeatedly affirmed these powers. In Missouri v. Holland, it held that the federal government can use treaties to legislate in areas that would otherwise fall within the exclusive authority of the states. That is because the Supremacy Clause of the Constitution gives treaties the same force as federal law, which is binding on the states. In American Insurance Association v. Garamendi, the Court reaffirmed that “the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”

I’m Going to Leipzig!

I am ecstatic to announce that I and nine wonderful peers were accepted into the Leipzig-Miami Exchange Program for this spring, which brings together students from UM Law and Leipzig University in Germany to collaborate on various topics relating to law and policy. The goal of the program is to learn about each other’s legal systems, exchange ideas, and develop a mutual understanding of our points of views. As an intellectual powerhouse, a central player in European and global affairs, and one of the world’s most robust democracies, Germany is a natural partner in this endeavor. (It is also a fellow federal republic with very strong civil liberties and constitutional protections, given its efforts to move past its history.)

I will be partnering with a German law student to work on a presentation about restorative justice, which is an exciting and promising frontier in criminal justice, rehabilitation, and conflict resolution (hence why it was my top choice, though they were all good). We will incorporate the perspectives and approaches of our respective nations, and hopefully enhance our countries’ knowledge and methodology of restorative justice. I also get to hang out with the German student when they visit this January, then work on a second topic with another German student in May, when I will visit the hidden gem of Leipzig, Germany for a few days.

As someone with aspirations in international law, it goes without saying that I am immensely excited and grateful for the opportunity to develop skills in cross-cultural collaboration, which will help me grow personally and professionally. And as many of you know, I am always eager to get to know people and perspectives from other cultures.

Founded in 1409, the University of Leipzig is one of the oldest universities in the world and the second oldest in Germany. Nine Nobel Prize winners are associated with the university, and its alumni include such eminent thinks as Leibniz, a polymath who made major contributions to math, philosophy, and science; Goethe, widely regarded as one of history’s greatest poets and writers; Leopold von Ranke, considered one of the fathers of the study of history; composers Richard Schumann and Robert Wagner; Tycho Brahe, a Danish astronomer who greatly advanced the study of space; Fredrich Nietzsche, among the greatest influences in modern philosophy; and Angela Merkel, Germany’s current and first female chancellor.

Given its 600 years as an intellectual hub, it is unsurprising that Leipzig played a key role in bringing down the East German regime, initiating a series of spontaneous mass protests that were among the first and most prominent in the country’s history, catalyzing other cities to do the same. Since reunification, Leipzig has become one of Germany’s fastest growing and most dynamic cities, being rated one of the places in the country to live.

Needless to say, I cannot wait to visit such an amazing university and city and broaden my horizons!

Photos courtesy of Wikimedia.

Legal Advocacy at Its Finest

As a law student, I aspire to balance a fulfilling career with legal advocacy, taking on causes pro bono for those who lack the means to seek justice.  That is why I seek inspiration from the thousands of lawyers and jurists around the world who dedicate themselves to giving a legal voice to the voiceless — often at great risk and sacrifice.

Fortunately, I have no shortage of examples to follow, most recently and dramatically in the form of Saif-ul-Mulook, a Pakistani lawyer who saved his client from certain death, and who now faces death threats as a result. As the South China Morning Post reported:

After saving condemned Christian Asia Bibi from the gallows in Pakistan, her lawyer says he is facing the wrath of Islamist extremists – and wonders who will save him. But despite the threats against him, Saif-ul-Mulook says he regrets nothing, and will continue his legal fight against intolerance.

Mulook’s latest victory saw the freeing of Asia Bibi – a Christian woman convicted of blasphemy, who spent nearly a decade on death row – after the Supreme Court overturned her conviction on Wednesday.

[…]

The defence of Bibi was just the latest in a long line of controversial cases taken up by the barrister.

In 2011, Mulook was the lead prosecutor against Mumtaz Qadri over the assassination of Punjab governor Salman Taseer – a prominent critic of the country’s blasphemy laws and supporter of Bibi.

Qadri – one of Taseer’s bodyguards – gunned down his boss in broad daylight, citing the governor’s calls for reform of the blasphemy laws as his motive.

Mulook said he took on the case as others cowered, fearing reprisals from extremists. His prosecution resulted in the conviction and subsequent execution of Qadri, who was feted by Islamists and later honoured with a shrine on the outskirts of Islamabad.

If this man can brave violent extremism to save the lives of those condemned by both public opinion and an unjust legal system, I am pretty sure I can stay true to my goal.

United States v. Wong Kim Ark

United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.

WongKimArkPlaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.

Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.

The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.

By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.

However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.

Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:

Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.

Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.

The Rights of Immigrants in the U.S.

How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014): Continue reading

Happy 150th Anniversary to the Fourteenth Amendment

Today the Fourteenth Amendment to the U.S. Constitution turns 150; as it happens, it is the same day that President Donald Trump will nominate a new Supreme Court justice to replace Anthony Kennedy, whose three-decade tenure in the court included many refinements and defenses of the often-beleaguered and contentious amendment.

More from The Atlantic:

Ratified in 1868, the Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the Court, and for nearly a century it protected economic liberty alone. Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.

Of the five sections that make up the amendment, the one most often in contention is the first, which reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Given the context of its passage, this language is very significant, as The Atlantic again explains:

After the Civil War, many of the former Confederate states passed laws known as the “Black Codes,” which sharply limited the rights of former enslaved people. In response, on July 9, 1868, Congress ratified the Fourteenth Amendment, which guarantees equal protection under the law and also denies any state the right to deprive people of liberty without due process.

Only five years later, the Supreme Court eviscerated the amendment in the 5–4 Slaughterhouse Cases decision. As drafted by the Ohio congressman John Bingham, the amendment was intended to require states as well as the federal government to respect the fundamental liberties guaranteed by the Bill of Rights.

A decade later, in a lopsided 8–1 decision, the Court struck down the Civil Rights Act of 1875, which banned discrimination in public accommodations and transportation. Finally, in 1896, the Court upheld the doctrine of “separate but equal” in Plessy v. Ferguson, standing aside as the South constructed the Jim Crow regime. Justice John Marshall Harlan provided the only dissent. In one of the most famous passages in the history of Supreme Court opinions, he wrote: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

At the same time that the Court turned away from the Framers’ vision of equal civil rights, it invoked the Fourteenth Amendment to protect economic liberties, such as freedom of contract. This period is remembered as the Lochner era, named after a 1905 decision striking down a maximum-hour law for bakers in New York. It culminated in decisions in the early 1930s that struck down the core of Franklin D. Roosevelt’s New Deal.

I remember learning a lot of this in my constitutional law class, and being quite surprised at how immediately resisted and controversial the amendment was, even to the courts. It is even more disconcerting to learn that it would be until fairly recently in American history that the Fourteenth Amendment was enacted as its framers ostensibly intended:

It wasn’t until Brown v. Board of Education in 1954 that the Court resurrected the Fourteenth Amendment’s promise of racial equality, overturning Plessy and attacking school segregation. It struck down state laws banning interracial marriage in Loving v. Virginia. And it upheld landmark civil-rights laws like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. While the Court stopped short of guaranteeing equal funding for education, it did much to attack the jurisprudential foundation of Jim Crow.

At the same time, Chief Justice Earl Warren’s Court resurrected John Bingham’s vision of national enforcement of fundamental rights—most notably, by extending the protections of the Bill of Rights to the states, thereby safeguarding free speech, religious liberty, the right to counsel, and the right to be free of unreasonable searches and seizures.

More controversially, the Warren Court laid the foundation for rights not explicitly mentioned in the text of the Constitution, such as the right to privacy. In later years, the Supreme Court would build on these privacy decisions to issue decisions such as Roe v. Wade—which led to a conservative backlash against the Court.

These competing visions of economic liberty, racial equality, and personal autonomy came to a head in 1987. Justice Lewis Powell—the swing justice on Warren E. Burger’s Court—resigned. President Ronald Reagan, nearing the end of his second term, sought to place his enduring stamp on the Court by nominating the conservative legal intellectual Robert Bork. Following a bruising battle, the Senate rejected the Bork nomination, in part because he refused to recognize a constitutional right to privacy. When Anthony Kennedy embraced the right to privacy, the Senate unanimously confirmed him.

While perhaps not as well known as the first ten amendments enshrined as the Bill of Rights, the implications of the Fourteenth Amendment — and how it will be applied, broadened, or restricted — are vast, especially in light of the replacement of one of its greatest proponents.

With Kennedy leaving the Court, the future of this 150-year-old amendment is at stake. His successor will determine whether the Supreme Court interprets the amendment as allowing or prohibiting laws and policies regulating abortion, marriage, voting rights, and affirmative action. Also at stake are the scope of the Bill of Rights’ protections for free speech, gun rights, religious liberty, freedom from unreasonable government searches and seizures, and economic liberty. Strong constitutional arguments can be made for both sides of all these issues, and Justice Kennedy often held the decisive vote. His successor could determine the shape of the Fourteenth Amendment until its 200th anniversary in 2038.

What are your thoughts?

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.

800px-brandeisl

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.