Would Brandeis Have Been Nominated to the Supreme Court Today?

When Louis Brandeis was nominated to the U.S. Supreme Court in 1916, some considered him a dangerous radical. Yet he was confirmed and spent more than two decades on the U.S. Supreme Court, where he shaped the law of free speech and privacy.

The Supreme Court reporter for the New York Times, Adam Liptak, notes the contrast between Brandeis’ confirmation and that of modern day justices in a review of the book, Louis D. Brandeis: A Life.

Brandeis didn’t testify, as was customary at the time, during the “brutal” confirmation hearings, the review says. But he gave a speech just weeks before his nomination about social justice and legal justice. Among those who opposed his nomination were seven past ABA presidents and William Howard Taft, the former president and future Supreme Court justice.

“Brandeis was not shy about discussing the role law can play in shaping society. Not for him the self-effacing metaphors of recent confirmation hearings,” Liptak writes. “Brandeis would have scoffed at Chief Justice John G. Roberts Jr. as an umpire in robes calling legal balls and strikes, and Justice Sonia Sotomayor as a law robot mechanically applying statutes and precedents to facts.

“Brandeis thought the law an instrument of morality and progress. … It is all but impossible to imagine the nomination of a lawyer like Brandeis today, and it is a small miracle that he was confirmed even in his day.”