completely in back of brandeis. they trusted him. >> speaking of hearings it took six months to get him approved. >> four months. he was a radical. i mean, there's no question about it that as far as conservatives were concerned, this was a man who had attacked j. pchld mop. morgan. had discovered that there was a big scandal regarding conservation and alaskan resources. that the president had lied about what he had done. he supported labor legislation which conservatives found anathema. this was a man who had attacked banking practices as then practiced. and who had attacked the court for being not in touch with current reality by any standard brandeis was a radical. he wasn't an iww time of radical, but as far as the conservatives were concerned he was far worse because he was

educated, he was trained and he was effective. you could ignore the real radicals over on the left, you couldn't ignore brandeis. >> 47-22 was the final vote? >> yes. >> and the 22 who voted against him, what party were they in? >> almost all republicans just about completely republicans at that point. only three republicans voted for him. >> if he were here today and on the bench, on the supreme court bench, what would be -- who would be on his side? who would like him and who would not like him? >> that's a hard question. i mean, if you want to take today's court, a lot of what he preached is accepted by all members of the court. a lot of what his dissents were in the 1920s and '30s have been sem accepted. we think of anthony scalia as a conservative, a very conservative justice. a few years ago scalia wrote what was in essence a brandeisian opinion. police in a california town were

cruising up and down with an electronic device in their car to pick up heat sensors. and their idea was if they could pick up a heat signature they would know who was growing marijuana because you have to have all that light which generates heat. well, they picked up a heat signature from this house. they then went and got a warrant, went in and turned out the guy was growing marijuana, but they never had a warrant to use the thermal sensor to look essentially into the house. and he's convicted in the lower courts and he comes up and scalia writes what is a brandeisian opinion on privacy, saying you can't just look into somebody's house because you have the technology to do so. you need to have a warrant. and this is essentially what brandeis wrote regarding wiretapping. just because you are outside the house doesn't mean you can take the alligator clips and listen in on the telephone conversation. his jurisprudence of free speech has been adopted by conservatives as well as

liberals. his notion of judicial restraint to allow legislature to do what, you know, they're permitted to do is paid lip service by everybody. not always carried out, but it's paid lip service by left, right, and middle. so, it would be very hard to say where he would be. but i think to take one specific case, for instance, the ledbetter case, in which the conservative majority took a very wooden literal view of the law and said that unless ledbetter could prove, you know, filed the complaint within 90 days of the very first discrimination, she had no cause of action was insane. she didn't know she was being discriminated against for 20-some odd years. he certainly would have been with ruth bader ginsburg and the moderates on that in trying to inject a sense of common sense into it. >> all cou couple of other thin say in the book, he wasn't for

women's suffrage and he wasn't active in the civil rights movement of those days. >> he was not initially for women's suffrage, and spoke against it. but then he married and had two daughters. he also associated with some very, very intelligent women, florence kelly of the national consumers league, his sister-in-law, gold maher. he knew jane adam. he knew mary o'reilly in boston. and gradually he came to the conclusion that his -- you know, his argument was fallacious. and especially his wife. his wife was a strong supporter of women's suffrage. and the very shy alice actually went on stage to speak for it and that may have been the final thing that brought him over. in terms of civil rights movement, as a historian you have to be very careful to

distinguish between what was going on in the 1910s, '20s and '30s in terms of a civil rights movement and what happened later. the naacp at that time was a very small group. felix frankfurter was involved in it. and the jurisprudence of the time was very different. segregation was seen as state action. and even the naacp didn't know how you would attack state action in federal court. you have to recall that not until the 1950s really do we begin to get a supreme court that allows federal review of state action in a number of areas. now, interestingly, although brandeis has been charged -- i think the main charge is he wasn't a champion of the african-american. he championed all these other groups, why didn't he champion them as well. which is a strange argument. but in all the cases that did come up before the supreme court

that the naacp brought, and there were only a handful during the time he was on the bench, in every single one of them, he supports the naacp to strike down some form of prejudicial legislation. so, in the book i argue it's not, you know, yes, it would have been wonderful had he also done that, but he didn't. and that's understandable. >> what do you think you would have thought of him as a personal friend or would you have liked him do you think? >> if i were a close friend, i would have. if i were just a casual acqua t acquaintance, i would have thought of him as cold, hard, all business, no nonsense. but his good friends, people like norman hasgood thought the world of him. robert lifollette. he didn't have a lot of close friends. he was a man who made use of every minute of his time.

although he took one month every year. he once wrote that he could do 12 months work in 11 but not in 12. so, at a relatively early stage in his career when he can afford it, he started taking the month of august off, and he took long weekends and others. he believed the worst thing a person could do was to be tired because you make mistakes when you're tired. and he 24 after an early experience where a lawyer whom he greatly respected had made a mistake because he was tired, he swore that two never happen to him. >> one of the things that i saw reference to in your book and other places and i think you might have even done a book on this is the 1914 book that he did "other people's money and how the bankers use it." >> i edited that book -- i wrote an introduction to that book. and last fall i had an op-ed piece in "the new york times" in which i said everything he says in that book regarding bankers,

what they do, how they use other people's money is still true today. and that the best thing we can do is learn from it. >> let me ask you this. i went in -- because i kept reading about it, i went into google, typed in louis brandeis and "other people's money and how the bankers use it." you can read the whole thing through on the internet. how do you think he would feel about it, based on the fact that he was involved in copyright and privacy, it's free. >> i think he would have very mixed reactions. on the one hand it's a wonderful source of information for all people. and like most progressives he believed you could never know enough and that one of his arguments for free speech is that an educated citizenry is absolutely essential in a democracy. and that we don't censor speech so that people can hear all sides of an argument. i think he would have thought that anybody could sit down in

front of their computer and get all that information would have been wonderful. on the other hand, the fact that it intrudes in so much of our daily life, you walk down the street now and you see people talking to themselves, well, of course, they've got the earplugs in. it wasn't long ago they would have arrested people walking down the street talking to themselves. phones, cell phones are everywhere. he didn't even use a phone late in his life. he thought it was an intrusion into his privacy. i'm sure he would have objected to cell phones and the ubiquitousness today. he would have had mixed reaction. >> where did he live here in washington? >> he lived up on florida street -- i'm sorry, california street. >> not within walking distance. >> he used to walk down. >> really? >> yeah. >> i want to make sure in case our audience is interested "other people's money and how the bankers use it." i also want to show you a clip of his grandson, frank gilbert, who lives here in washington,

who we talked to in conjunction with our special on the supreme court. do you know him? >> i do. i've known frank for a number of years. >> he's talking about the supreme court building, back in 1935, he didn't move into it, but let's listen to what he had to say. >> he had the law books spread out on the floor of his bedroom office which was not a large room, and that worked -- that served him very fine, in a very fine fashion. and so he saw no need for this marble palace. he didn't want to be any part of it, although he had very good relations with his fellow justices. they all used the building. one of grandfather's law clerks told me many years later that one of his fellow justices raised some objection about the building, and rather uncharacteristically grandfather turned to the law clerk and said, well, he voted for it.

>> the modern supreme court building was taft's initiative. prior to the new building, they met in the old senate chamber in the basement of the capitol. it was cramped. there was no room for private offices. the justices put on their robes and then had to walk down the hall to the courtroom, and taft thought that as one of the three main branches of the government, the supreme court ought to have a building that was comparable to the capitol or the white house, and he pushed it through. brandeis always liked the old courtroom. he liked the idea that the court was a small body, one man, each with one clerk, doing the business of the government. he liked that. and when the new building opened, he refused to move into it. his wife was furious. so, one time -- in fact, they kept his chambers open to the public so that when they were running tours through the

building, this is where they could show what a justice's chambers looked like because his was unoccupied, and one time alhis brandeis wanted to see it, so she snuck down there and when she came out, somebody asked her, they have ice water and shower baths and my husband doesn't use either one of them. she thought they were much too elaborate and he never moved into the chambers during the time that the building opened until he retired. >> the producer for the supreme court series not that louis brandeis didn't bathe. he liked the bathtub. >> he liked the bathtub. >> another thing that was mentioned by frank gilbert is clerks, if you get on the list of clerks you'll notice that all of the clerks were louis brandeis came from harvard. >> that's right. >> unlike any other justice. nobody else had only harvard clerks. >> no, no, holmes did. holmes had his from harvard, because he got them from the same source, felix frankfurt and

before that professor gray. this was not unusual. i mean, justices -- william o. dougl douglas, for instance, only took his clerks from the ninth circuit, so it's not unusual for justices to say i only want clerks from -- now, of course, they have three or four apiece. also in those days sometimes clerks would stay more than one year, for instance, arlen stone had a clerk that stayed stayed with him for seven or eight years. brandeis had two clerks that stayed two years each. one of them was dean achison, and the rest of them only stayed for a year. and frankfurter chose them. one or two of them came down and met with brandeis first, but for the most part they showed up in august where the former clerk would essentially teach them the ropes and then they would be there. >> if today a supreme court justice was paying somebody like

frankfurter at harvard to do a project of any kind and that professor was providing the supreme court justice with all their clerks, do you think this would work today? >> we're in a much environment now. i wanted to know is there anything uneth cam about what brandeis is doing either by the standards his time or our time? he said there was nothing unethical or illegal but because of the closer scrutiny of what justices do since the fordis scandal, that brandeis probably would not have done some of these things. now asking a particular professor to provide clerks, there would be no problem with

that. providing a professor with a stipend to engage in reform activity today probably would not fly. >> i want to go back to frank gilbert again. who was his mother, do you know? >> oh, yeah susan was his mother. >> and do you know him? >> yes. >> and what's he do in washington? >> he works for the historic trust, national historic trust foundation. >> the second clip i want to run is still today mind-boggling, we've talked about it before on this program. but let's watch it and you explain it. >> sure. >> when it came to his resignation from the supreme court in 1939 as is customary, the chief justice wrote a letter to the retiring justice to praise him and indicate how much the court would miss him. and after chief justice hughes

drafted this letter, the senior associate justice, who was justice mcreynolds, declined to sign the letter. the other justices immediately signed the letter, which was sent off to grandfather, and it stands to this day as an indication of how justice mcreynolds felt about grandfather. but to chief justice hughes' credit, he didn't need that signature. he wanted it to stand with all the other justices indicating their respect and affection for my grandfather. >> wasn't both -- weren't both justice brandeis and justice mcreynolds from kentucky? >> no, i'm not sure about mcreynolds, but i think he may have been. >> it was just odd. what in the world -- what was the thinking back then that he would -- and explain how far mcreynolds would go to not be

around justice brandeis? >> you have to go back before they were on the court. apparently worked very close with brandeis in 1913 and 1914 to draft legislation. we have a number of letters from brandeis saying i met with mcreynolds today, he and i spent several hours. he once writes to his wife, mcreynolds is besieged with office seekers. i'm so glad i didn't get that job. he had been talked about as a possible member of wilson's cabinet. and at least up until that time, their relations seemed relatively cordial. but once mcreynolds went on the bench, ace anti-semitism just flowed completely, you know, just ran forth, gushed out. and during the time that brandeis was on the bench, mcreynolds wouldn't talk to him unless absolutely necessary. during the conference, the weekly conference, when they

went over cases, mcreynolds when brandeis was talking would sometimes go to a couch on the side and read his mail or sometimes even leave the room until the jew was finished. there are a couple of years we do not have official port tratp of the court, because mcreynolds would not pose with brandeis. and after benjamin cardoza came on in 1932, mek rcreynolds was horrified to have two jews on the court. >> did anybody ever ask mcreynolds why he felt that way? >> not that i know of. >> we've got the memoir that was done -- >> by the clerk. >> -- by the clerk. >> but it didn't say why he felt this way. it was just prejudice pure and simple. >> did the chief justice talk about mcreynolds? >> he doesn't have a great deal

of respect for him. brandeis and hughes and taft were all appalled at how sloppily mcreynolds did his work on the court. and there's an interesting letter, though, that one time for some reason or another in a relatively minor case both brandeis and mcreynolds were in dissent with the majority. and because brandeis was working on a larger dissent, he asked mcreynolds if he would write, you know, a brief dissenting opinion, and he comes home and he says mcreynolds was so happy that i asked him to do that. so, i mean, it's a strange relationship. this are some places where if you're tracking, if you look at the notes and brandeis' court papers, for example, where mcreynolds writes back just like the others do on the returns, doesn't say anything nasty, you know, sometimes makes a suggestion. it's like business as usual. and then there are other times,

you know, when you get these stories. mcreynolds was a very strange person. >> in the end why did justice brandeis spend so much time and money at the university of louisville at their law school and throw into that mix brandeis university and what he had to do with that if anything. i know it came on in '48 or something. >> he had nothing to do with brandeis other than the fact that his name was taken. in fact, one of his daughters thought that if he were alive, me would never allow a university to be named after him. he, of course, grew up in louisville. but his interest begins to grow in the 1920s when harvard law school expands. and brandeis is very much opposed. brandeis has been a generous contributor to harvard law. he'd been one of the founders of the harvard law school alumni association. he was its longtime secretary. he was on the board of visitors. but in the 1920s feels that

harvard is still a 19th century law school and in order to meet the needs of the 20th century, they'll have to expaged the faculty, and in order to expand the faculty, they're going to have to expand the student base, it would mean larger courses, at least in the general courses, first year contracts, and brandeis is dead set against it. so, one reason he turns to louisville is because of bigness. harvard was now too big. what he wanted was not one big harvard but a lot of little harvards as he put it and the university of louisville was to be his experiment. he and his brother in louisville, alfred, took the lead in raising money. brandeis arranged for his very expensive library to be given to the university of louisville. he helped bring in a dynamic dean of the law school.

he gave a lot of money but in small chunks. he was opposed to this idea of big dollar investments and he's constantly advising them, don't go after the big dollars. go after a lot of little dollars because that way you get people involved, interested. i think he would have aplawed obama's use of the internet to raise a lot of $25 contributions rather than, you know, trying to get somebody to give $250,000. he wanted the local people involved in the development of the university of louisville. and today, if you ask the dean at the university of louisville law school, they consider themselves a second-tier law school but one of the best of the second-tier law schools. and they are also a law school that has a required public service component to their curriculum. >> and how much was he responsible for the pro bono

section of law firms today? >> he almost invents pro bono when he gets started. he tells his fiancee -- >> alice? >> when his courting her. that he'll be able to do well enough in his law practice to give one hour a day to public service. well, he does very well in his law practice. a woman named alice lincoln, one of had esclienthis clients, she reformer and she's appalled by the conditions of the boston hospital for the insane which is out on an island in boston harbor. brandeis goes out there. he says it was one of the worst days of his life. it was like going to a sihospit ward. he gets the city to adopt better

conditions. although by current standards it wasn't that much better. when mrs. lincoln sends him a check, he gives it to a charity. and eventually he stops taking fees for public service work completely. when edward filene who was one of his clients as well as a collaborator in several reforms wanted to find out how much he was charging, he finally comes to brandeis' office and said, look, you did all this work, how much is it going to cost? and brandeis said it's going to cost nothing. you know, this is my obligation to do this. just as it's your obligation to be a good citizen, this is how i do it. and just as a collector would not -- or a yachtsman would not enjoy being out on the sea if he were paid to do it, so i wouldn't enjoy doing this if i had to be paid. at one point during this fight with new haven where he was putting in so much time that he felt it was unfair to his

partners in the law firm because he was the big rainmaker, that he actually paid his law firm $25,000 out of his pocket for work that they were doing to help him and other things. as his partner ned mclennan said, none of us would ever even thought of suggesting this, it was just something we did with and for brandeis, he was the one who insisted on it. >> this is what book for you? >> 50 something that i've either edited or written. >> this is 955 numbered pages. who do you want to read this? >> well, everybody. but i would like people who are interested in public affairs to read it, not just the court but in government. i would like young lawyers, people going to law school, to read it to see how law can be used in the service of the public. i would like people who want a better society to read it to see

how it's not just that you have to have an ideal of what things ought to be, but you have to have a sense of how do you get there, how do you do something that's real. i would like judges to read it to remind them of how law has to be wedded to reality. so, there are a lot of people i would hope would read this. >> where are you from originally? >> a place called liberty in upstate new york, a small town. >> where did you get your undergraduate degree? columbia, i have a ph.d. from columbia and a j.d. from the university of virginia. >> what impact at age 40 and beyond did that law degree have on you? >> it opened up a new teaching career for me, if you will. i have taught at different law schools. i've been a full bright at the university of new south wales in sydney, but it started to allow me to write about legal affairs and public policy, i've done a book on affirmative action and

right to die and campaign finance, and it gave me confidence when i was writing about a legal issue, i really did understand it, whereas prior to going to law school, i would skirt around it, because i always was not quite sure that i did understand. and many of the times i did, but i now have the confidence that if i wanted to write -- and i -- well, for the past 30 years all i've written about really is about law and public affairs. >> there have been 111 justices in history and he was the 67th, i believe. why -- what -- is there one thing that you can point to that makes him one of the best known and in many people's eyes, we just have a minute or so, one of the two or three best in history? >> i would say that his jurisprudence on free speech and privacy, if nothing else, would mark him as a great and influential justice. there was, of course, a lot more, but in a minute we can't

go into it. but if there is one decision or two decisions that should be read, it would be his decision in homestead and whitney on privacy and free speech. they ring through the ages. they're still quoted extensively. >> what's your favorite chapter in this book? >> getting started, you know, as he -- when he's appointed to the court and how he developed the working habits he had and his relations with his clerks. i mean, i don't know why i like that better than the others, but i do like it. >> what's the one thing you didn't like about it? >> that he burned so many of his papers that might have given us better insight in to him, but, you know, considering that this was the man that developed the right to privacy, you can sort of understand it. >> melvin urofsky has been our guest and he's the author of "louis d. brandies: a life," thank you. >> you're welcome. it's been a pleasure being here.

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