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Rev. Joey N. Welsh: Two Kentuckians and Supreme Court legacies

Another Angle. Different sides of a coin. Two Kentuckians and their Supreme Court legacies, Part I. Justice Brandeis. was first published 13 November 2005 in the Hart County News-Herald.
To see other articles by this author, enter "Rev. Joey N. Welsh," or "Another Angle," in the searchbox. The next earlier Another Angle: Lessons from 40 years ago that we are learning still

By The Rev. Joey N. Welsh

The death of Chief Justice Rehnquist and the announced retirement of Justice O'Connor have thrust the Supreme Court into the headlines in recent months. The history of the Court and the history of Kentucky have been entwined since Kentuckian Thomas Todd was appointed to the Court in 1807. The list of all the people who have served as Chief Justice of the United States or Associate Justice of the United States Supreme Court comes to a few over 100 names. Ten of those people have Kentucky connections, having been born in our commonwealth or appointed to the High Court while holding a position in Kentucky.

Seven of those people are buried here. Chief Justice Vinson (Earl Warren's predecessor) is buried in Louisa. Justice McKinley was laid to rest at Cave Hill Cemetery in Louisville. Justice Reed's body came home to Maysville. Justice Todd's grave is in Frankfort Cemetery, while Justice Trimble's is in Paris.

The remaining two of the seven, Associate Justices Brandeis and McReynolds, were both born in Kentucky, both appointed to the court by President Woodrow Wilson, and are both buried in our state. Aside from those similarities, they are different sides of a coin and have widely divergent reputations and legacies. Today marks 149 years since Louis Dembitz Brandeis was born in Louisville, in a home on Broadway that still stands and is used now for medical offices. Remembering Justice Brandeis and contrasting him with Justice McReynolds may help us all to think about ourselves and the kind of legacies we want to leave for those who will come after us.

Born to a Jewish family that had come to the United States from Prague after the political unrest that swept Europe in 1848, Brandeis showed early in life that he had a brilliant intellect. He completed high school at the age of 14, finishing at the head of his class. He traveled with his family in Europe while he was a teenager, going back a second time for two years of education in Dresden. Returning to America, he completed his education at Harvard, graduating with his law degree in 1877 at the age of 21 and ranking first in his class.

Brandeis remained in Boston, achieving national prominence for his legal work before he was 30. He wrote articles for legal journals that were widely read and studied. He co-authored the first publication to refer to personal privacy as a right created by the interactions of several amendments found in the Bill of Rights. The arguments on privacy posited by Brandeis are yet an area of legal contention in 2005.

In 1908 he argued a case before the Supreme Court, Muller v. Oregon, in which he championed working condition and work hour reform, a position that put him in opposition to the business interests of the day. In that era it was not uncommon for manufacturers to require workers to be on the job seven days a week for as long as twelve hours per day.

Before Brandeis, legal briefs filed with the High Court contained references to legal precedents and little else. Brandeis was the first person to back his legal argument with evidence provided by medical experts and sociologists, arguing that constitutional rights included freedom from physical and emotional damage and exploitation. This kind of legal filing, now called a Brandeis Brief, became standard practice and changed U. S. legal history.

When President Wilson nominated Brandeis in 1916 the move was controversial: Brandeis was to be the first Jewish Supreme Court Justice. After an arduous confirmation fight, Brandeis came onto the Court on June 5, 1916. He served until 1939. Widely respected nationally and by the other justices (with the glaring exception of Justice McReynolds), he wrote many landmark decisions. He also filed some influential dissenting opinions that became the basis of majority Court decisions long after his death.

Brandeis looked forward, embraced the future, and defended the rights of free speech, privacy, and economic security for people who had little money, education, or power. In private life, he was an early promoter of the establishment of a Jewish homeland during an era of widespread persecution of Jews.

Louis Brandeis could have led a comfortable, secure existence by representing the interests of America's corporate upper crust. When he entered the law, court rulings seldom challenged prevailing business practices or protected civil rights . Instead, Brandeis led a life in which he sought justice for those who had lost hope of ever receiving it. He died in 1941, leaving a legacy of advocacy where little had existed before him.

Justice Brandeis and his wife are interred under the front portico of the University of Louisville Law School -- the Brandeis Law School -- where his personal papers are preserved. A high school in New York also bears his name, as does Brandeis University in Waltham, MA. From his Kentucky beginnings, Louis D. Brandeis went on to change the society in which you and I live, defending legal rights we all now take for granted.

The Brandeis legacy is the shiny side of the coin. Next week: the tarnished side of the coin, Justice James Clark McReynolds and his legacy of bigotry.
For more information on all Supreme Court Justices and the history of the high court, I recommend the publications and website of The Supreme Court Historical Society, Many of its documents are available online. This organization was established by Chief Justice Warren Burger in 1974.

This story was posted on 2010-08-15 16:49:46
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