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100 Years Ago, Louisville's Brandeis Joined The Supreme Court

Senate Republican leaders continue their refusal to consider any nominees from President Obama to fill the Supreme Court vacancy created by the death last month of Justice Antonin Scalia.

Majority Leader Mitch McConnell of Kentucky said after a meeting with the president this week that the vacancy won't be filled this year. The impasse coincides with the 100th anniversary of a months-long confirmation process for a controversial Supreme Court nominee, who, like McConnell, had roots in Louisville.

For years, to bring them luck on final exams, University of Louisville law students have placed coins on the gravesite of Supreme Court Justice Louis Brandeis and his wife, Alice, in front of the school that bears his name.

That tradition later included animal crackers, after Professor Laura Rothstein began mentioning in lectures that Brandeis was fond of the treats.

“And that just resonated,” Rothstein said. “That’s become something that people identify him with.”

Brandeis was born in Louisville in 1856 and spent his early years in the city. He sat on the Supreme Court from 1916 to 1939. He died two years later.

Rothstein and U of L law school librarian Scott Campbell, have brought out some items from the vast collection of Brandeis papers. Campbell opens a huge scrapbook of newspaper clippings collected by Brandeis. Campbell said Brandeis was a bit of a packrat.

“His file cabinet was basically his bathtub in his apartment," he said. "Anytime he needed something he would know what layer of strata he needed to go into to get to the file.”

The battle over the current Supreme Court vacancy comes on the centennial of the bitter fight over Brandeis’ nomination by President Woodrow Wilson.

Rothstein said a century later, it’s still the longest stretch between nomination and confirmation: four months.

"With Brandeis, it was specifically because of who he was it was so controversial. He was very progressive. A lot of people who had power were not eager to see someone that progressive have the power of the court,” she said.

Louis Brandeis was 59 when he was nominated.

After establishing a prosperous law firm in Boston, he began fighting on behalf of the working class, battling the mighty railroads and other industries to improve labor conditions. It was work that he performed free, as dramatized in the 2007 documentary “Justice Louis Brandies: The People’s Attorney.”

“Some men buy diamonds and real works of art. Others delight in automobiles and yachts. My luxury is to invest my surplus effort to the pleasure of taking up a problem and solving it for the people, without receiving any compensation,” Brandeis said.

“The typical [Supreme] Court was made up of six or seven railroad corporation lawyers,” said Campbell. “They were very pro-big business. The idea of having someone who was the complete antithesis of that was shocking to many people.”

Brandeis spent months defending his progressive views during the confirmation process, amid an undercurrent of anti-Semitism. He was a torchbearer for the Zionist movement to establish a Jewish state in Palestine.

Brandies was confirmed by the Senate in June of 1916, and served on the high court until 1939. His writings as a lawyer and a justice on matters such as privacy, transparency and government overreach are still frequently cited.

Rothstein said she wonders what Brandeis would think about the current legal battle over the government’s attempt to gain access to cell phone information in a terrorism investigation.

“I would love to have a conversation with him about that, because he was a very, very strong protector of privacy," she said. "But he was also a very big protector of free speech and public interest and safety. So how you would balance that?”

Brandeis left Louisville as a young man to pursue his education and never moved back. But he kept a strong connection with his hometown and the University of Louisville.

Rothstein and Campbell visited the Brandeis gravesite for some photos for this story. Rothstein, who was dean of the law school for five years, brought along a box of animal crackers.

“Whenever I’d have a hard decision or question, I’d say ‘what would Louis do?’ You’d feel his presence and wisdom. He was a great guidepost for how to resolve issues. The first thing I’d think is get the facts, get all the information," she said.

Several events at U of L will mark the centennial of the Brandeis nomination.

In September, Supreme Court Justice Elena Kagan will be presented with the Brandeis Medal, honoring commitment to public service.

Rick Howlett was midday host and the host of LPM's weekly talk show, "In Conversation." He was with LPM from 2001-2023 and held many different titles, including Morning Edition host, Assignment Editor and Interim News Director. He died in August 2023. Read a remembrance of Rick here.