How I Fell in Love With Justice Louis Brandeis
Image by Anya Ulinich
By Talya Zax May 31, 2016
At our last meeting before Nationals, as a symbol of good luck, Beth and Joe gave each of the five of us — Cora, Sarah, Will, Joseph and me — a small blue bear with “Colorado” embroidered on its chest.
It was April 2009, and we were sitting in Joe’s offices in an airy old house on the outskirts of Denver’s Capitol Hill. The five of us made up one of six panels on the team our high school, Denver East, was sending to the We the People competition in constitutional law; Beth and Joe, respectively a state legislator and a lawyer, had been coaching us since September. Each panel focused on different features of the Constitution, its foundations and its contemporary application. East had won the national competition in both of the past two years, and we wanted to bring back a third title.
One of our panel’s strengths was our knowledge of case law — our preparatory research papers were peppered with names both common and obscure: Chisholm v. Georgia, National League of Cities v. Usery, City of Boerne v. Flores. We decided to name our good-luck bears after our favorite Supreme Court justices. Without hesitation, I chose Louis Brandeis.
June 5 is the centenary of Brandeis’s swearing-in as a justice on the Supreme Court. Much has been written about that anniversary, especially in the context of Merrick Garland’s stalled nomination. (Brandeis was the first Jew nominated to the court, and the Senate delayed his confirmation process for four months. That record still holds today, though probably not for long.) Brandeis was never beholden to politics; although he was liberal, his opinions were as likely to anger one party as the other.
Before all this became quite so relevant, I’d fallen in love with Brandeis. The text that did me in was his dissent in the 1932 case New State Ice Co. v. Liebmann, a touchingly retro argument over how much Oklahoma could regulate the activities of an ice manufacturer. (You’re snoozing, I know, but give me a minute.) The decision didn’t have lasting importance, but Brandeis’s dissent did.
That dissent — a critique of the court’s decision against the state — articulates an idea now considered fundamental to the value of federalism. “It is one of the happy incidents of the federal system,” Brandeis wrote, “that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”
At 16, I thought it was one of the loveliest sentences I’d ever read. The concept — that the states should serve as laboratories of democracy — was astonishing, simultaneously sparse and rich. I’d been thinking of federalism as an issue of practical governance, but it was more than that; it was a system designed to propagate good laws efficiently and with minimal harm. In Brandeis’s words, the complex machinery linking the state and federal levels of law and legislation became both brisk and beautiful.
Of course, in practice that machinery can be pretty creaky. Still, I don’t think it’s meaningless that we’re celebrating Brandeis’s centenary and the first anniversary of the Supreme Court’s decision to legalize gay marriage — a decision that came after decades of work to achieve the same in state by laborious state — in the same month. The process worked. Brandeis was not the first to think of the states as venues for democratic experimentation, but he helped entrench that thought in the American political imagination.
Brandeis composed law as if it were poetry; his decisions and dissents alike were crystalline. He saw the shortcomings of the political system and its essential beauty with equal clarity, and he worked to minimize the one and encourage the other. “To stay experimentation in things social and economic is a grave responsibility,” he wrote in the dissent to Liebmann. “Denial of the right to experiment may be fraught with serious consequences to the nation.”
The last Monday of April, our panel sat in the hearing chamber of the House Ways and Means Committee. It was the final day of Nationals. I’d straightened my hair, which was still frizzy in the D.C. humidity; we waited for the judges, anxiously arranging the bright-pink notecards on which we printed our opening statement.
The judges came in. I started us off — “Federalism is defined as the separation of power between a national government and sub-units such as states” — and in the ensuing four minutes we moved through the system’s philosophical underpinnings, the federal government’s gradual accruement of the bulk of available power, and the system’s strengths and weaknesses. Will read last: “It can be argued,” he began, “that federalism’s greatest strength is that it allows the states to act as ‘laboratories of democracy.’”
We were weaker than we usually were in the questioning that followed. Still, we managed to hold up. News of swine flu had broken that morning, and we spent most of the time working out how the federal and state governments would handle a large-scale public health crisis.
At the evening awards banquet, as the contest’s organizers started listing off awards from 10th place up to first, we grasped each other’s hands. After they read off third place — California — it was just Alabama and us left, vying for first. A breathless moment — at that point, for me, the closest the world had ever come to stopping — and then they read “Alabama.”
We tried to hold off on whooping until they declared us the winners; I threw my arms around one of our notoriously prickly vice principals, whose shocked expression formed a memory almost as vivid as that of the complete euphoria we felt.
When I returned to my hotel room later that night, giddy, tear-stained and triumphant, Justice Brandeis the Bear was sitting on my bedside table. I tossed him in the air, and I thought — well, I hoped — that if he’d been there to watch, Brandeis himself might have been proud.
Talya Zax is the Forward’s culture intern. Contact her at [email protected] or on Twitter, @TalyaZax
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