Jeffrey Rosen Quotes

Before Sept. 11, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometric surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity.

Privacy is not for the passive.

They said, OK, nine [Louis] Brandeis's is too much, but one is OK. So, with friends like that, and so forth. But, yes, the idea that because he was Jewish he would rule a particular way was an ugly undercurrent of the hearings, which resonates with current claims that a judge can't be impartial because of his or her background or ethnicity or race. It's, I guess, a small comfort that in the end the Brandeis vote wasn't close.

I was very much influenced by a great book by the scholar Neil Richards called Intellectual Privacy, that [Louis] Brandeis changed his mind on the proper balance between dignity and free speech.

Louis Brandeis really inspired me to write this book [Louis D. Brandeis: American Prophet]. It was a crazy deadline. The editor said I'd miss the hundredth anniversary unless I pumped the thing out in six months, because I'd been delaying and dilly dallying for so long. So he both inspired me to get up early and write.

William Howard Taft, who he embarrassed in these congressional hearings, attacks him as an emotionalist and a socialist and a cosmopolitan in terms that kind of have an anti-Semitic overtone. And even the pro-Brandeis press supported him in terms that really seem creepy today. There's this piece from Life magazine. It says, "Mr. Brandeis is a Jew. And until now there's never been a Jew on the Supreme Court. Perhaps it's time we have one."

Initially the papers said that the fact that Louis Brandeis was picked because he was Jewish. The New York Sun said he's the first Jew ever picked for the bench - a long and bitter fight expected in the Senate over confirmation.

The historical resonances are sharp. [Louis] Brandeis is nominated on Jan. 28, 1916. Confirmed on June 1. Waits 125 days between nomination and confirmation, which remains an unbroken record, although Merrick Garland will surpass it in July, if my math is right. Anti-Semitism was definitely not the central reason for the opposition, which tended to focus more on his anti-corporate radicalism, but it was a theme.

I think he's [Louis Brandeis] a great model for progressive justices today who want to answer the originalists. It's not that the original paradigm cases are irrelevant, but you have to focus on the values the framers were trying to protect, not on the means with which those values were invaded in the 18th century.

We need to protect the same amount of cognitive liberty in an age where you can invade people's thoughts without physically intruding into their homes than you did at the time of the framing.

He [Louis Brandeis] would have not had any patience with that great debate which you're right to kind of signal between Justice Scalia and Justice Alito about do you need a physical trespass into the home or onto the carriage in order to trigger the values of the Fourth Amendment.

The tyranny of Harvard and Yale is another thing that transcends this problem of the set point. But what's so striking about [Louis] Brandeis is he had this vision of cultural pluralism that completely gave the lie to the idea that there was any inconsistency between being Jewish or being a woman or being African American and being fully American.

Louis Brandeis started off by embracing the Theodore Roosevelt notion that hyphenated Americanism was unpatriotic. You couldn't have dual loyalties. But then he thinks and he reads and he becomes the head of the American Zionist movement after having previously been a secular Jew in this amazing intellectual evolution.

And he [Louis Brandeis] talks to his young acolyte, Horace Kallen, who wrote this beautiful book called Cultural Pluralism, and he comes to believe that by being better Jews, or better members of our ethnic group, we can be better Americans, because America is like an orchestra in which identity is defined by the diversity of perspectives that we bring to the table.

Why I find Louis Brandeis so exciting and inspiring because he's teaching us - good legal writing is not a matter of taste, it's a matter of connection with fellow citizens and of democratic education.

[Louis] Brandeis improves the prose. He simplifies it and perfects the balance of the sentence so it becomes even more memorable and aphoristic.

[Louis] Brandeis is writing directly to us. His clear voice comes through a century and he's speaking to us and he's galvanizing us and he's persuading us. And that's why I love to read the prose.

When I was in law school I was taught that the great writers were people like [Oliver Wendell] Holmes Jr. and [Benjamin N.] Cardozo. But you go back and read their prose and it's sort of perfumed and very ornate and show-offy. And they're constantly striving for these abstractions that seem archaic nowadays.

What is so inspiring about [Louis] Brandeis's writing is he saw it as a tool for democratic education. He would say things like the opinion is now convincing, now can we make it more instructive, after he'd gone through ten drafts.

Justice Jefferson has a blind spot on race. You know, more than a blind spot. A terrible blemish on his legacy, slavery, for which he's properly excoriated. So, I think [Louis] Brandeis has done this as well.

But as I wrote the book [Louis D. Brandeis: American Prophet], I tried to write it as clearly and directly and passionately as possible just thinking of communicating to readers who might want to learn about this great thinker and be inspired by him as I was.

Louis Brandeis actually changes his mind about women's suffrage because he works with these brilliant women in the women's suffrage movement like Josephine Goldmark, his sister-in-law, where he writes a Brandeis brief which convinced the court to uphold maximum hour laws for women by collecting all these facts and empirical evidence.

For [Louis] Brandeis, it's not a technical question of channeling what would James Madison say. It's how do we take these inherent human natural rights of liberty and translate them into an age of new technolog

[Louis Brandeis] believes in natural rights of speech and liberty and the right to pursue happiness.

I'd say that [Louis] Brandeis practiced a kind of a "living originalism," to use the title of Jack Balkin's great book. He said you start with the paradigm case, which in the case of the Fourth Amendment was these general warrants or writs of assistance, but you define it at a level of abstraction that you can take it into our age and make it our own.