A Quote by Jeffrey Rosen
He [Louis Brandeis] would have not had any patience with that great debate which you're right to kind of signal between Justice Scalia and Justice Alito about do you need a physical trespass into the home or onto the carriage in order to trigger the values of the Fourth Amendment.
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There are just a host of problems born by the electronic age. Things we couldn't even conceive of. I was amused by the analogy that Justice Scalia made in a case about a GPS tracker so you don't know that's being done to your car, is that a violation of your right to protection against unreasonable searches and seizures. So Justice Scalia imagines a constable clinging to the bottom of a carriage as it went on its way, so there was some notion that this similar: there is an official eye that's on you, but you don't know about it. Yes, there are all kinds of challenges.
I think that for most of our history, there was a nuanced reading of the Second Amendment until the decision by the late Justice [Antoine] Scalia and there was no argument until then that localities and states and the federal government had a right, as we do with every amendment, to impose reasonable regulation.
I don't think he would have had any trouble answering Justice Sonia Sotomayor's excellent challenge in a case involving GPS surveillance. She said we need an alternative to this whole way of thinking about the privacy now which says that when you give data to a third party, you have no expectations of privacy. And [Louis] Brandeis would have said nonsense, of course you have expectations of privacy because it's intellectual privacy that has to be protected. That's my attempt to channel him on some of those privacy questions.
In 2015, an opera opened about me and Justice Antonin Scalia. It's called 'Scalia/Ginsburg.' The composer, Derrick Wang, has degrees in music from Harvard and Yale. Enrolled in law school, he was reading dueling opinions by me and Justice Scalia and decided he could compose an appealing comic opera from them.
I'd say that [Louis] Brandeis practiced a kind of a "living originalism," to use the title of Jack Balkin's great book. He said you start with the paradigm case, which in the case of the Fourth Amendment was these general warrants or writs of assistance, but you define it at a level of abstraction that you can take it into our age and make it our own.
The Scalia seat is defense. We're not going to get any better than Justice Scalia. The best we can do is preserve constitutional victories like upholding the Second Amendment, like protecting religious liberty. But we're not going to get any better.
I want you to understand that racial justice is not about justice for those who are black or brown; racial justice is about American justice. Justice for LGBT Americans is not about gay and lesbian justice; it's about American justice. Equality for women isn't about women; it's about United States equality. You cannot enjoy justice anywhere in this country until we make sure there is justice everywhere in this country.
In the words of Louis Brandeis, the Supreme Court justice, we have a choice between a democracy or vast concentrations of wealth. We have vast concentrations of wealth which has bought its way into our democracy with its political leaders who exemplify the merger of that economic and political elite.
Justice Scalia is predictable. He can be counted on to come down with a conservative opinion, and generally, to bring Justice Clarence Thomas with him.
I think he's [Louis Brandeis] a great model for progressive justices today who want to answer the originalists. It's not that the original paradigm cases are irrelevant, but 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.
Yesterday, we needed justice; today, we need justice; tomorrow, we will need justice! Justice is our eternal need!
Justice Jefferson has a blind spot on race. You know, more than a blind spot. A terrible blemish on his legacy, slavery, for which he's properly excoriated. So, I think [Louis] Brandeis has done this as well.
I'm hardly the first person to say that you've [Jeffrey Rosen] written a book about a person who has more to say about the current state of being than almost anyone, Louis Brandeis, and yet nobody is talking about Louis Brandeis.
The question is not what anybody deserves. The question is who is to take on the God-like role of deciding what everybody else deserves. You can talk about 'social justice' all you want. But what death taxes boil down to is letting politicians take money from widows and orphans to pay for goodies that they will hand out to others, in order to buy votes to get re-elected. That is not social justice or any other kind of justice.
What I love about the ministry of Jesus is that he identified the poor as blessed and the rich as needy...and then he went and ministered to them both. This, I think, is the difference between charity and justice. Justice means moving beyond the dichotomy between those who need and those who supply and confronting the frightening and beautiful reality that we desperately need one another.
The liberty I mean is social freedom. It is that state of things in which liberty is secured by the equality of restraint. A constitution of things in which the liberty of no one man, and no body of men, and no number of men, can find means to trespass on the liberty of any person, or any description of persons, in the society. This kind of liberty is, indeed, but another name for justice.
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