SAMANTHA MONK: Not just a lawyer, not just a justice: Brandeis the activist
It's 1922. A 66-year-old man with the world on his shoulders scribbles a multichaptered memo to his friend Felix Frankfurter at The New Republic: "Regarding New Republic policies I am enclosing as follows-of course not for publication-but for your study or consideration (1) on prohibition (2) on capitalism (3) on the spread (4) on fear (5) on transportation (6) on labor-saving devices...."Technically, Supreme Court Justice Louis Brandeis wasn't supposed to have opinions. From the day he was nominated to the Supreme Court, his critics had warned, 'Brandeis has always put his personal convictions over the needs of his clients, so how can he be an objective judge?' They had reason for concern: As an advocate and then later as a justice, Brandeis never stopped pushing his own agenda.
In fact, Brandeis spent almost half a century molding the American press to fit his needs. It's a little-known fact, but over the course of his career Brandeis published no fewer than 40 articles (both signed and anonymous) uncovering abuses of power; he helped found and fund publications, most notably an influential investigative journal; and he worked closely with reporters and influential editors. One might even go so far as to suggest that he was something of an investigative journalist.
For full disclosure, I, too, have an agenda. This summer I worked at Brandeis University's Institute for Investigative Journalism researching the justice's impact on the American media. We expected nothing unusual; it's common knowledge that Brandeis fought for freedom of speech and the accountability of those in power. But as I delved deeper into the University archives, I came across something none of us had anticipated: Brandeis was a prolific op-ed writer, at times almost a regular columnist. Far from simply shaping the press theoretically from his pulpit at the Supreme Court, Brandeis' approach was decidedly more hands-on.
Take, for example, his relationship with the investigative journal Collier's Weekly. While still a lawyer, Brandeis depended on the magazine to help rally support for his side when he prosecuted public entities like insurance and railroad companies. Not only was Collier's an outlet for his own pieces, but he could count on its editor in chief Norman Hapgood (who quickly became one of the advocate's closest friends) to write editorials in his favor whenever Brandeis thought it necessary. The University archives contain copies of over 20 letters Brandeis sent to the editor "suggesting" topics for publication.
But Brandeis' ideas were not always popular-in fact, in 1912, the lawyer's unsigned editorial in favor of Woodrow Wilson's presidential campaign led Robert J. Collier, the owner of Collier's Weekly, to fire Hapgood. Not willing to lose his most important media connection, Brandeis helped Hapgood buy Harper's Weekly and then paid for over 700 subscriptions to Massachusetts libraries to ensure that the magazine remained in circulation. Toward the end of 1913 and the beginning of 1914, Brandeis wrote at least nine op-ed pieces for the magazine.
Of course, it would have been entirely inappropriate for Brandeis to have been so prolific after his appointment to the Supreme Court. So the justice found another way to make sure his ideas were still pushed upon the American public. Brandeis paid his friend
Frankfurter, a young and charismatic Harvard Law School professor whom he described as "half-son, half brother," a significant salary to cover the expenses he incurred in surreptitiously carrying out Brandeis' projects.
He frequently bombarded Frankfurter-who was connected with the Harvard Law Review, The New Republic and The Nation-with suggestions for articles, and his ideas would soon find their way into the pages of those publications. His influence was so extensive that biographers David W. Levy and Bruce Allen Murphy have said that "Brandeis was more than just an anonymous contributor to The New Republic; he was very nearly a member of its editorial staff in absentia."
The most important point I gleaned from my research is that no one can be truly objective-we're all motivated by personal reasons and agendas, even those of us whose job it is to be impartial. No one disputes that Brandeis was a great lawyer and a great justice, even though he was decidedly opinionated, and it seems almost wrong that he had to go to such lengths to hide his convictions-which were truly admirable-in his later years.
Journalists play the same game; working for New England Cable News out of The Boston Globe office this semester, I see every day that "conviction" is a bad word in the newsroom and a given in the lunchroom. Instead of dancing around the truth, a better system would involve all of us admitting our biases-whether we're journalists, lawyers, judges or anyone else who includes "objectivity" in his job description-and then making an active, public effort to be as fair and open-minded as possible. It doesn't matter if you have opinions as long as you allow others to voice their beliefs and cede to their reasoning when it happens to be more rational than yours.
I think Brandeis-the secretly opinionated objectivist-would have quietly agreed.
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