JUDGING CRIMES

I didn't realize until the day was nearly over that Monday the 13th was the 150th anniversary of Louis Brandeis's birth.  Here's a nice little article from the Raleigh News-Observer commemorating the day, and here's Brandeis's page on the Oyez website. 

Brandeis was a great justice in many respects, but his indifference to racial issues has long puzzled me.  I use the word "puzzled" because I vaguely hope there's some principled justification for his inaction.  When Christopher Bracey published an article entitled "Louis Brandeis and the Race Question," he began by practically apologizing for bringing up a topic that reflected badly on the Master. 

Brandeis, though associated with Boston, was actually a Southerner, and living through the Civil War and Reconstruction may have done some kind of permanent injury to him, like losing hearing in a certain frequency range.  More generally, the Progressives in general were largely indifferent to Black America.  Race, which had been the defining issue of the "liberals" (to use an anachronistic term) of Lincoln's day, and again became the defining issue of the liberals of the 1950s and 1960s, was a matter of indifference to the liberal-equivalents in the intervening years.

Brandeis also joined the infamous eugenics opinion by Oliver Wendell Holmes.   That might be put down to a lapse, but I wonder.  I was reminded of it when I read the News-Observer piece, which quoted this sentence from his pen: "Those who won our independence believed that the final end of the state was to make men free to develop their faculties".

That phrase lacks political resonance now.  But it had resonance to spare during Brandeis's youth.  In chapter XXII of his Social Statics (1851), Herbert Spencer wrote: "To secure for each man the fullest freedom to exercise his faculties, compatible with the like freedom of all others, we find to be the state's duty". 

In Lochner v. New York, Holmes famously wrote: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."  By which he meant: The majority's opinion enacts it.  Spencer - who reasoned syllogistically, like a lawyer, but wrote with a clear and lively prose style - was the originator of the phrase "survival of the fittest."  He was an ardent evolutionist, and applied his understanding of natural selection to his study of society, following his logic to some pretty chilly extremes.  Writing in the immediate aftermath of the Irish potato famine, he had this to say about those who advocated providing relief to the starving:

Blind to the fact, that under the natural order of things society is constantly excreting its unhealthy, imbecile, slow, vacillating, faithless members, these unthinking, though well-meaning, men advocate an interference which not only stops the purifying process, but even increases the vitiation—absolutely encourages the multiplication of the reckless and incompetent by offering them an unfailing provision, and discourages the multiplication of the competent and provident by heightening the prospective difficulty of maintaining a family. And thus, in their eagerness to prevent the really salutary sufferings that surround us, these sigh-wise and groan-foolish people bequeath to posterity a continually increasing curse.

Spencer's position is more or less the opposite of that normally associated with Brandeis the great Progressive.  So it's a bit startling to discover Justice Brandeis, near the end of his glorious career, ascribing Spencer's philosophy to the Founding Fathers.  And it makes his one-time endorsement of eugenics especially creepy.

I've never quite figured out why lawyers are so prone to hero-worship, but they are.  Brandeis was a great lawyer, and a pioneer, and a distinguished justice, and he lived an interesting life in a very interesting time.  But he wasn't quite a saint.  Or, maybe, he was - and we need to keep in mind the opening line of George Orwell's essay on Gandhi: "Saints should always be judged guilty until they are proved innocent".