Louis Brandeis

– U.S. Supreme Court Justice Louis D. Brandeis, dissenting in Olmstead v. United States (1928)

Louis Brandeis was appointed to the court by Woodrow Wilson in 1916 (Wilson was a Democrat/Brandeis was a Republican) and served as associate justice until 1939.

Mr. Brandeis was talking about the right to privacy. The right to privacy includes such diverse rights as the right to have an abortion (with reasonable state regulations and restrictions), the right to possess and view pornographic material in the privacy of one’s own home and the right for parents to have basic child rearing and education decisions over their offspring. First upheld in 1962, some people think with a Republican in the White House appointing justices, it may be under attack. True, Assoc. Justice Antonin Scalia and Assoc. Justice Clarence Thomas–both Republicans–are strongly opposed to the right to privacy. But it is worth pointing out Harry Blackmun–appointed by Richard Nixon in 1970–and Mr. Brandeis, above, were and remained Republicans all their lives. And they also strongly in favor of this basic right. So we’ll just have to see…


Republicans were very liberal in the first two decades of the 20th century. Think Teddy Roosevelt and all his reforms. Brandeis was the first Jewish member of the Supreme Court and progressive Jews were mostly Republicans in those days.

Wilson was a liberal Democrat, not merely progressive and populist but really conservative as Williams Jennings Bryan was, who was the leading and typical Democrat at the time. Bryan was nominated three times to be the Democratic Party’s nominee. He was a skilled trial lawyer. He won the Scopes evolution trial against Clarance Darrow by getting a conviction and a $100 fine. This has always been considered a Phyrric victory, but consider he did win, and he was up against the man widely considered the best American criminal defense lawyer of all time.

Whether you are pro-choice or pro-life, you have to admit that alot of things are going to be decided with Mr. Bush’s Supreme Ct. appointments. So why not arm yourself with knowledge?

The Supreme Ct. is usually divided into three “wings”: the “conservative” wing, the “centrist” wing and the “liberal” wing. Please note that at this point the conservative wing is also the most reactionary, because it favors the overturning of all the recent precedents–esp.Roe v. Wade.

"Conservative": William Rehnquist (appointed by Richard Nixon), Antonin Scalia (" " Ronald Reagan), Clarence Thomas (" " George Bush, Sr.).
"Centrist": Sandra Day O’Connor (first appointment of Ronald Reagan), Anthony Kennedy (by Ronald Reagan), and David Souter (by George Bush, Sr.). [As you can see the first appointment of a president is often, though not always, a "centrist’.]
"Liberal": John Paul Stevens (appointed by Gerald Ford) [it is ironic to note that when Mr. Stevens was appointed, he was considered a “centrist”. He has always been a Republican.], Ruth Bader Ginsburg (by Bill Clinton), Stephen Breyer (by Bill Clinton). Please note Mr. Stevens, though a Republican, is considered the most “liberal” person on the court.

CONSERVATIVE-Meaningless–or at least confusing–when it comes to the Supreme Ct. Ruth Bader Ginsburg is a conservative when it comes to Roe v. Wade because she wants to conserve the precedent while Clarence Thomas takes the more liberal judicial activist view.
JUDICIAL ACTIVIST:A justice who takes the view that the precedent should be overturned and replaced with what he feels is right. All the judicial activist on the court now are right-wing, and thus [ironically] in the conservative position on the court.
JUDICIAL RESTRAINT:The view that when deciding a case, a justice should follow only what the precedent is in the matter and put his/her personal feeling aside. Such a justice would also be using the doctrine of stare decisis.
ORIGINAL INTENT:View that a justice should only take the view of the Constitution that our Founding Fathers would have. Problems: Needless to say, this is a very limited view. For example, torturing a suspect to confess would not have been unheard of 200 yrs. ago. But there is another reason why some right-wing people may not like this: Free Speech restrictions. 200 yrs. ago there were only 3 restrictions on Free Speech: (1) Slander and libel, (2) Sedition, and (3) Blasphemy. Oh, sure many new conservatives would like the blasphemy part. But where is obscenity? Believe it or not, it only came later. Go figure.
STARE DECISIS:The doctrine that you must uphold the precedent in any given case. Lower courts have no choice, they must do this. Supreme Court justices do so voluntarily if they hold the JUDICIAL RESTRAINT view.
STRICT CONSTRUCTIONALISM:The view that when interpreting a document–in this case the Constitution–one should confine oneself to the words alone and add nothing else. Again the problem is a right-wing one: not only can you not find obscenity restrictions, but where do you get the sedition restrictions. Clearly a justice who found some would be adding them his or herself. Go figure again.

I hope this has been informative. I welcome any corrections, in case I made a mistake above. And remember to get involved–whatever your political beliefs may be. Thank you all for your time.