Episode Overview

Title: What Would Brandeis Do?
Podcast: Amicus With Dahlia Lithwick
Date: June 11, 2016
Host: Dahlia Lithwick
Guests: Prof. Deborah Rhode (Stanford Law School), Jeffrey Rosen (National Constitution Center)

This episode explores the boundaries of judicial impartiality in light of Donald Trump's attacks on Judge Gonzalo Curiel, and delves into the enduring legacy of Supreme Court Justice Louis Brandeis. Host Dahlia Lithwick discusses the ethics of judicial recusal with Stanford’s Deborah Rhode, then talks with Jeffrey Rosen about Brandeis's relevance to today's political and legal landscape, especially regarding issues like bigness (in government and business), privacy, free speech, diversity, and judicial writing.

Key Discussion Points and Insights

1. Trump, Judge Curiel, and the Ethics of Recusal

[00:04–14:29] Guest: Prof. Deborah Rhode

• Background on Trump’s Attack:
  Donald Trump claimed Judge Curiel was biased due to his Mexican heritage, given Trump's own political stance on building a border wall.

  • Insight: Charges of bias based on race, ethnicity, gender, or sexual orientation have problematic historical precedents (e.g., Constance Baker Motley, Judge Vaughn Walker).
    • “The notion somehow that individuals, because of their identity, can't render an impartial judgment is just deeply offensive and contrary to all the ideals of the judicial system that we value.” – Deborah Rhode [03:54]

• The Unfairness of Recusal Arguments Based on Identity:

  • To accept Trump’s logic, any judge could be removed from a case if a party simply offended their demographic group, undermining the legitimacy and function of the judiciary.
    • “Were [that] a winning argument, Donald Trump could get anybody off the bench on his cases by just saying something deeply offensive based on their background.” – Deborah Rhode [08:03]

• Judicial Muzzling and Public Critique:
  Judges cannot respond to public criticism, even in political attack ads or during election campaigns.

  • “The way that we hobble people of enormous integrity from defending themselves is, I think, deeply problematic.” – Deborah Rhode [10:22]

• Judicial Accountability Paradox:
  Cases like Judge Aaron Persky’s recall in California highlight tensions between maintaining judicial independence and ensuring accountability.

  • "I personally think that we should be extremely reluctant to use a recall mechanism for an unpopular decision simply because of the message it sends about judicial independence. But I wouldn't say never." – Deborah Rhode [12:28]

• Summary of the Judicial Role:
  Judges in America are both political actors and supposed oracles above the fray—the contradiction at the heart of controversies over judicial behavior and accountability.

  • “Judges in America are half political animals and half oracular demigods. And we're never quite sure which of those two things they are.” – Dahlia Lithwick [12:57]

2. The Legacy of Louis Brandeis

[14:35–47:01] Guest: Jeffrey Rosen

• Why Brandeis Is Still Relevant:
  Brandeis consistently challenged "bigness" in both business and government, a posture that’s rare in modern politics, which tends to oppose only one or the other.

  • “Brandeis was a consistent critic of bigness in business and in government. And today we have critics of bigness in one or the other, but not both.” – Jeffrey Rosen [16:42]

• Brandeis's Vision: Political Economy & Vigilance Against Monopolies:
  His anti-monopoly and egalitarian views shaped American policy from Jefferson to the New Deal but faded as attention shifted to other equality movements.

• Judicial Philosophy and Public Education:
  Brandeis championed not just judicial fixes but broader civic responsibility and self-education.

  • “The most inspiring part of his legacy to me is his belief in the imperative and duty of self-education on behalf of citizens … He insisted that public discussion was both a right and a duty.” – Jeffrey Rosen [22:21]

• Brandeis on Privacy and Free Speech:
  Initially advocated the right to suppress true but embarrassing information, but later evolved to prioritize intellectual privacy—a right to control unexpressed beliefs and thoughts—as crucial to both free speech and democracy.

  • "He redefines privacy as the ability to control the expression of our unexpressed beliefs, thoughts, and emotions." – Jeffrey Rosen [26:45]

  • On NSA-style surveillance:

    • “What would Brandeis have thought of NSA surveillance? I think he would have been troubled not only by broad data collection without a warrant. He would have insisted that it was unconstitutional even with a warrant.” – Jeffrey Rosen [27:28]

• Originalism vs. Living Constitutionalism:
  Brandeis practiced “living originalism”—starting with the framers’ values, but updating them for current realities rather than fixating on historical details or technologies.

  • “You start with the paradigm case, but you define it at a level of abstraction that you can take it into our age and make it our own.” – Jeffrey Rosen [29:58]

• Race, Religion, and Judicial Confirmation
  Brandeis’s 1916 confirmation was fraught with “genteel anti-Semitism.” The notion that minority judges can't be fair because of their backgrounds is an old theme, unfortunately echoed today.

  • “With friends like that, you know, 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.” – Jeffrey Rosen [35:48]

• Brandeis’s Cultural Pluralism:
  Ultimately, Brandeis concluded that “America is like an orchestra in which identity is defined by the diversity of perspectives that we bring to the table.” [37:48]

  • Despite this, he had a “blind spot” on race—he did little to advance civil rights, especially compared to his advocacy on economic and gender issues.

3. Brandeis’s Style and the Importance of Judicial Writing

• Writing as Democratic Education:
  Brandeis’s opinions were crafted to educate and galvanize fellow citizens, favoring clarity over ornate abstraction.

  • “For me, what is so inspiring about Brandeis 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?” – Jeffrey Rosen [44:01]

  • “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.” – Jeffrey Rosen [44:38]

  • Notable Brandeis quote, from the Whitney opinion, as cited by Rosen:

    • “Those who won our independence believe that the final end of the state was to make men free to develop their faculties, and that in its government, the deliberative forces should prevail over the arbitrary. They believe liberty to be the secret of happiness and courage to be the secret of liberty.” [45:02]

Memorable Quotes (with Timestamps)

• On judicial impartiality and identity:

  • “The notion that individuals, because of their identity, can't render an impartial judgment is just deeply offensive and contrary to all the ideals of the judicial system that we value.” – Deborah Rhode [03:54]

• On insulating judges by discipline:

  • “Judges in America are half political animals and half oracular demigods. And we're never quite sure which of those two things they are.” – Dahlia Lithwick [12:57]

• On Brandeis and bigness:

  • “Brandeis was a consistent critic of bigness in business and in government. And today we have critics of bigness in one or the other, but not both.” – Jeffrey Rosen [16:42]

• On privacy’s modern definition:

  • “He redefines privacy as the ability to control the expression of our unexpressed beliefs, thoughts, and emotions.” – Jeffrey Rosen [26:45]

• On translating the Constitution:

  • “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.” – Jeffrey Rosen [32:06]

• On pluralism and identity:

  • “America is like an orchestra in which identity is defined by the diversity of perspectives that we bring to the table.” – Jeffrey Rosen [37:48]

• On judicial writing:

  • “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.” – Jeffrey Rosen [45:24]

Timestamps for Key Segments

• Discussion of Trump, Curiel, and Recusal: 00:04–14:29
• Introduction of Jeffrey Rosen and Brandeis Book: 14:35
• Brandeis on Bigness and Modern Politics: 16:42
• Brandeis on Privacy and Free Speech: 25:15
• Originalism vs. Living Constitutionalism: 29:58
• Brandeis’s Confirmation and Religion: 32:52
• Cultural Pluralism and Race: 37:22
• On Judicial Writing: 44:01
• Closing acknowledgments: 47:01

Tone and Style

Dahlia Lithwick's tone is accessible, incisive, and wry; guests respond with scholarly insight but keep the conversation lively, with memorable phrases (e.g., "insulting your way to a better judiciary," "living originalism") and a strong focus on the human and societal impacts of legal doctrine.

Summary Takeaway

This episode of Amicus weaves together current legal controversies about judicial bias and recusal with the historical perspective and enduring wisdom of Justice Louis Brandeis. Both segments—on the contemporary controversy and on Brandeis himself—highlight the complexities, contradictions, and indispensable value of a judiciary that strives for both independence and accountability, and the ongoing challenge of translating constitutional values into practice for all Americans.