frank brandeis gilbert, grandson of justice brandeis. (applause) our centennial celebration of our namesake louis brandeis has been made possible by the dedication and inspiration of people to numerous to name. i must give us special shout out to brandeis class of 1957 alum, jules bernstein and his wife linda who first suggested the idea of the centennial celebration back in 2013. they got the ball rolling, and from the beginning they've offer generous support, great wisdom, and practical guidance. i also want to thank dan terrorist, director of the international center of ethics, justice, and public life, here at brandeis. who has skillfully led the initiative and organizing committee. his knowledge and organizational skills have been instrumental and making the centennial celebration a reality. 100 years ago, on this day, january 28th 1916, president will joe wilson announced the nomination of boston attorney louis brandeis to the u.s. supreme court. the fifth 59 year old brandeis wrote to his brother alfred quote, i'm not exactly sure

wilson knew that if he appealed to brandeis, as a matter of patriotism, brandeis would leave the courtbut it had been too great to struggle to get him on to the bench, and the president had no intention of taking him off. i do meeting with rabbi stephen wise, after wilson complained about how hard it had been to get someone for an important posed, why used asked why don't you ask justice brandeis? i need him everywhere, wilson responded, but he must stay where he is. brandeis must of surely anticipated that at least some of the administration's actions would have constitutional repercussions, and could eventually come before the supreme court. in that case, would brandeis for cubes himself? and if so, how would he explain it? or would he think that the advice he gave will soon on wartime powers rested on such powers at constitutional ground it should not niche the supreme court in the justices would endorse it? as it turned out, a number of matters did come before the courts. before looking at these cases, we should note that the court has always tried to avoid getting in the way of th

brandeis never mentions that case. he never discusses the crucial gloss on clear and present danger in his whitney opinion. he writes in ways to say we have a presumption, but he writes in ways that says the question is whether or not the judgment that harm might occur is reasonable. whitney does refer to free speech as a fundamental right. what we have to remember when we read the passage in whitney with the blessings of hindsight is in 1927 it didn't mean very much. if you look at the cases meyer and pierce, they talk about reasonableness, about deference. it is not until the footnote amplified by the decisions in its wake we begin to get fundamental rights and robust protection. the whitney concurrence still says reasonable, but a problem. it is one thing to write a rule. it is another thing to be able to trust the judicial machine to implement it in the ways you want. judges and juries become a cause for concern. in a remarkable exchange of letters between two people in 1920, they point out the problem with juries

justice brandeis of kentucky. wilson dared not appoint him attorney general, but did reported him to the court. -- the did appoint him to the core. and justice roberts. at 61, the youngest justice. long a conservative. and charles evans hughes, 75. chief justice since 1930. sometimes conservative, sometimes liberal. >> president roosevelt goes on the air in an appeal for popular support for his plan to reorganize the federal judiciary. it is his second such appeal within six days. he tells the people that his plan would protect them. >> those opposing the plan have sots to so prejudice and fear by saying i am seeking to pack the supreme court. what did they mean by "packing the supreme court"? let me answer this question with a bluntness that will and all honest misunderstanding of my purpose. is by that phrase it is charged -- if by that phrase is charged i wish to place on the bench spineless puppets to disregard the law and decide specific cases as i wish them to be decided, i make this answer. that no presiden

the oldest justice, justice brandeis of kentucky, 80, of distinguished jewish ancestry. so liberally opposed that wilson didn't appoint him attorney general but appointed him to the court. holding the balance of power are two justices, owen roberts at 61, the youngest justice, long a conservative. since this fight began liberal in seven decisions. and charles evans hughes, 75. the chief justice since 1930. sometimes conservative, sometimes liberal. >> president roosevelt goes on the air in an appeal for popular support for his plan to reorganize the federal judiciary. newsreel cameras record his fireside chat, his second such appeal within six days. he tells the people that his plan would protect them from using power by the supreme court. >> those opposing the plan have sought to arouse prejudice and fear by crying, saying i am seeking to pack the supreme court and that a baneful precedent will be established. what do they mean by the words "packing the supreme court"? let me answer this question with a bluntness that will end all honest misunderstanding of my purpose.

packing, and i think that brandeis jumped into a lot of student philosophy, and was much more liberal. i think at the same time this goes back to a scene that would come upon a lot. which is his formidable intellect, and to reason for cases, it was admired by all the other justices. >> so you've decide his formidable intellect, but for you if you could time travel, would you argue a case in front of his court? >> i think it would be fascinating, i think some of the other justices on the court, the four horsemen in particular, had difficult personalities, from the bench. i'm not sure will be all roses, but i do think it would be a remarkable experience. but you're talking not just about the opportunity but also just just brandeis, just discard over, there was intellects across that court. >> so today there are about 8000 petitions to have cases heard. they hear one out of 100, or 70 or 80 cases a year. what was core what was the caseload like then. >> there wasn't that many more cases they were hearing then, but the request was much lower. there was something like no one maybe there wa

brandeis added to his theory that there should be ... nonetheless, was convicted. brandeis argued that the danger from the speech must be clear, imminent and substantial or serious. but the court did not adopted. and indeed, the court said that just being a member of a group that had, as a purpose, criminal syndicate listen, was enough to make you liable. we see similar stuff in cases involving the communists after world war ii. and again, there were actually lots of communists and many of them worked in the government. many of them were directly connected to the soviet union. back in the nineties, some previously unknown material from a project called vanilla, intercepting communications from soviet spies, show there were quite a few people working like that under directions a moscow. again, there were not figments of a person's imagination. nonetheless, they had leaders of the actual communist party, they were not spies, they were out in the open, they were convicted for violating the snip act. the senate act said if you engaged in advocacy or attempted advocacy

unpopular and his vice president campaigned against it, the chief justice, and progressive justice brandeisere against it. even though fdr had been reelected in a huge landslide in 1936. in 1938, the democrats lost eight seats in the house. so be careful with that. susan: dwight eisenhower had five appointments and most significantly put forward earl warren as chief justice. he later called this the biggest damn fool mistake i ever made. it is important to talk about the war in court. -- the warren court. why was it his biggest mistake? ilya: earl warren was a republican governor of california and had a moderate record and was a popular figure in the party and contributed to eisenhower being selected as a presidential nominee. it was a bit of a reward as well as recognizing this was an esteemed republican public official and lawyer and should be a good choice for the court, especially to be chief justice, given the political skill required for that job. ultimately warren was a progressive, a liberal on the court and a host of ways, whether with regard to civil rights -- it was his court to

his name was louis brandeis.t the time, it was so controversial that they had for the first time a public hearing, but it was seen as unseemly for the nominee to appear. so he did not and the process lasted five months. the longest confirmation we've ever had. the voting margin was broader than some of the more contentious ones recently, but it was very heated. even more, once he got on the bench, very soon after, charles evans hughes, one of his colleagues on the bench resigned, to run against president wilson and the election. -- in that fall's election. if you thought 2020 or 2016 was politically contentious in the terms of the interplay of the presidency and the court, 1916 gives it a run for its money. susan: the first time a nominee appear before a committee and testified, the first time was 1938. what were the circumstances? ilya: felix frankfurter, also happened to be jewish, but i don't think it was that. he was a harvard professor and they wanted to question him more broadly. it did not last very long,

justice brandeis is important to. we three's -- we see three cases using jeffersonian free exercise religiousthe business people in a direct debate back and forward where justice black got his separatism, whether jefferson is simply window dressing for preconceived ideas that he received as a member of the ku ofx klan, where separation church and state was a mantra. people worry a little about some of the nativist inspiration for that appetite for separatism and the anti-catholic ways it was being directed. there is no evidence in justice black's opinions to warrant those suspicions. but there is a lot of speculations in the biography about them was philip hamburger separation of church and state as a good recent example of that . which makes folks a little the easy story told about black ever since the separation is project. will havesor gordon better things to say. >> i don't think so, that was pretty amazing. the smoke going up as black's children burned his papers after his death at his instruction has always rais

that was just the louis -- one of his friends reported that if he were invited to dinner at the brandeis home, you would eat before and after. (inaudible) (laughs). >> i second that decision. >> we've covered a lot here tonight, before a close i just want to ask my three panelists. is there anything else you would like to bring up that we haven't talked about? >> what did we forget? ruth? >> i don't know. >> i think we said give clara a round of applause for putting this together. (applause) >> before we close i would like it but the pitch to the audience. if any of you know any recipes or anecdotes about supreme court justices and food, please get in touch with me because i am writing a cookbook. i would also send out a plea to all of you to go to supreme court history .org, where we have supporting materials about the event tonight, more information about a lot of the topics covered. we also have copies of supreme, the martin ginsburg cookbook, i'm are and justice sotomayor splendid auto mop autobiography. we have signed copies of that on our website, we have some tonight in the hole.

tom: you were an enormous basketball player at brandeis.eally cut practice once because he wanted to go see al gore? did you really do that? mike: you really did your homework. election.n the 1988 actually, it was true. i actually worked on one of the presidential campaigns, and was very actively involved. there were about eight democratic candidates at the time. i did go to the coach, and he rolled his eyes. alaid, no, i want to go see gore and hear about that green new deal. so it actually was a real thing. back inndeis basketball the day was the real deal. very competitive program. jonathan: i would love to know what david solomon would have to say if mike said i want to go see aoc talk about the green deal. you won't it's her that one, don't worry. [laughter] mike: appreciate that. jonathan: thank you very much. let's get to the bond market quickly. twos-tens, we talked about this chart last week. we've topped out at about 70 basis points twice now in the last six months, and we've done it again. last friday, bridging that level. then w

dating back to louis brandeis, supreme court nominees have gone before the judiciary committee. it had been a fairly normall practice where supreme court nominees testified before the committee and then asked their opinions on constitutional issues and offer feedback. these tended to be quite routine. nothing like we saw the last few weeks. nothing like we have seen before. nothing like where there would be a television spectacle. you have to go through the motions. the problem for johnson is that the judiciary committee in 1968 is probably the single most hostile committee to the president and liberal philosophy that exists. think back a few weeks ago to the brett kavanaugh hearings. we basically have 19 member committee. 10 very conservative republicans, nine fairly liberal democrats. it is an ideologically split committee. that is not the case in 1968. the chairman of the committee is this man, jim eastland, a democratic senator from mississippi. he voted against thurgood marshall's confirmation and voted against the civil rights act. voted against the voting rights act. the

that a constitution is not intended to embody a particular economic theory, which he and justice brandeis repeated resolutely over the years, was for the removed from the majority position in 1920 that it had been when it was decided. so then, how did the modern first amendment take root? i have argued in my historical research that the constitutional is a shun of free speech in the united states was a product of a peculiar coalition of progressives and conservatives who distrusted state regulation and hoped to buttress judicial legitimacy, along with socialists and radical unionists. at the helm of this awkward alliance was the aclu, which explicitly committed itself at its founding in 1920 to the cause of organized labor, and which sought to preserve a right of agitation, encompassing labor's most powerful weapons, the rights to pickett, to boycott and to strike. the founders of the aclu had started out as progressive reformers. as such, they were deeply skeptical of the judiciary. for the first half of the 1920s, they undertook constitutional litigation, above all to discredit the cour

angela davis, the former black panther, member of the party of the usa, started by brandeis in the 60s, another one of these gurus. and she said that ethnic studies of intellectual arm of the revolution. she knows what she's saying it and she saying openly. so i think that we could take it seriously when we see today what is happening, having echoing and repeating the same phrases that is neo- marxist, these cultural markets is in the 20s and 30s and 40s and 50s and the 60s. michael: you can trace as you just did this evolution, this intellectual evolution that then overflows into this crazy politics that were sitting around us. one particular interesting point in the book is you did not dedicate a chapter to black identity because of the unique role of black people history of the united states. obviously legal slavery and jim crow and everything that accompanies those institutions. and what you point out is that identity politics attempts to inflate the experience of other minority groups as they continue to be created by date with black experience in america. so this does not matter

first question come in reading your book i thought a lot about justice brandeis. had we do with the economic consequences of having business is so large that the economy can't afford for them to broadly failed even when the gains happen immorally or criminally. >> enforcing antitrust laws is a start but i think there's a whole project. teachout has a new book out about this and i think our antitrust laws were eviscerated over the years and sometimes business is bad. no company should be too big to fail and so it might make sense to break up some of these companies. the other thing to keep in mind that company could survive but what about holding the executives individually accountable for making decisions? a corporation may have personal attributes under the constitution but there have to be real humans to act on its behalf and those people need to be held accountable and that needs to change. >> another question that almost reads like a follow-up but is actually by someone else many companies develop compliance anti-fraud anti-money programs but why did these pro

amorgos time ever that the seed was not fill before, what was done to mira garland, was justice brandeisthis was far more. it is apples and oranges, and you cannot make the comparison. this is simply theft. it makes people look at the supreme court and say why should we obey what the supreme court says if the process of putting people on the supreme court is illegitimate? it is a dangerous thing for our country. ,ost: as we get set for hearing what are your thoughts on the process of these four days of hearings, of the answers that nominees do or don't give? is a: well, you know, that whole problem even when the process is fair. foras been a real challenge people on both sides of the aisle, trained to not give answers. i got frustrated even with people appointed by president obama during this process, because i felt why can't you at least answer this or give us a sense of your feelings about issues, even if you would not -- if it would not directly affect the case. but this becomes much worse in a situation where this is being jammed through for political purposes, by a president in trou

with brandeis one never has that feeling. there is a freshness that continues to speak to us, and we each have a favorite brandeis quote, i'm sure most of us have many, one of my favorites associated with this campus, brandeis challenged us when he said if we were to be guided by the light of reason, we must let our minds be bold and i think he meant that not in a light way at all and he understood to let our minds be bold is a challenging and sometimes uncomfortable exercise. it is willing to go places that were that we're not sure that we're comfortable going. he understood that better than just about anyone being born at the civil war and living through the second world war. we have launched an important discussion of letting our minds be bold. my fellow panelists who have done a splendid job keeping us led by the light of reason. thank you. >> thank you, fred. that was a wonderful way to bring this fascinating discussion. ladies and gentlemen this concludes our program. if you could please remain in your seats until the p