Louis Brandeis

I85px-Louis_Brandeis_Associate_Justice_c1916 just finished Mel Urofsky’s new biography of Justice Brandeis and it’s terrific.  I must admit (sheepishly) that I had never focused on Brandeis and his career before.  The sweep of his achievements is truly astounding.  I was especially fascinated by the discussion of his career in practice, as the judicial part is more accessible through his opinions.

My only quibble (a minor one in a book hundreds of pages long) is that no explanation is given for why Brandeis joined Holmes’ opinion in Buck v. Bell.  Perhaps that is because no information exists on this point, but I would be curious to know whether Brandeis had any enthusiasm for eugenics or just went along because sterilization of the mentally retarded was an “experiment” in the states that deserved judicial deference.

BTW, I’m having Lasik tomorrow.  Thus, I’ll be offline (hopefully not for long) until I heal up.

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5 Responses

  1. Gerard,

    In reference to your question, of course Paul Lombardo would be in the best position to answer, but he does mention (briefly) that Brandeis concurred in the decision, and may give some mention of his attitude on eugenics (I do not recall at this point).

    My own position, informed by the history of eugenics in the U.S., is that given Brandeis’s class and position, it is not entirely surprising that he would at least tacitly accept if not endorse eugenics ideas. I am aware of no evidence suggesting that he was an outright proponent of eugenics discourse, but even as the power and scope of eugenics in American society was beginning to wane by 1927, I would generally be more surprised if a person of his class, status, and privilege would outright reject eugenics that I would be to learn that such a person at least allowed for some semblance of eugenics, even if not taken as far as Harry Laughlin would wish.

  2. Kelly says:

    I wrote to Mr. Urofsky and asked him, and he kindly replied; one must take the decision in the context of the times. Eugenics at that time was not considered the junk pseudoscience that it is today. And it was not known that Carrie buck was raped, nor that her child was of normal intelligence. The progressive cause had a major blind spot when it came to race relations (although Brandeis always voted in favor of civil rights), so it’s not inconceivable that the progressive such as Brandeis would miss this. It would have been nice if he had dissented, but he ruled as someone of his class, education, position and, most importantly, a man of his times, would have. Although I am completely sure he would have been horrified to hear of Nazi defendants at Nuremburg using it in their defense…

  3. Steve Klein says:

    I do not buy this line of argument, that we must take the decision in the context of the times. U.S. President Andrew Jackson (notorious proponent of “Indian Removal,” expropriation, etc.) according to historians, was a racist, like many / most of his fellow Americans at the time. That does not excuse Jackson’s racism or his duplicity. Racism is racism. Evil is evil. Justices Holmes and Brandies upheld evil, notwithstanding the times in which they lived. There were many righteous opponents of racism and eugenics in Brandeis’ day. Apparently Brandeis was impervious to reason or persuasion.

  4. Joe says:

    Mr. Klein, it doesn’t totally take them off the hook, but the reasonableness of the behavior under then current understanding should be taken into consideration, particularly given the test of the time to determine if a provision violated the “liberty” clause of the 14A.

    We are the product of our times, even if some dissent, and many things done now (I think looking people in small cages where many are raped etc. will be one of them) will be seen as “evil” some time in the future. But, merely looking back using current development of human society is a bit unfair.