Sunday, January 27, 2019

Scrooge v. Robin Hood: A Tale of Two Justices

James McReynolds and Louis Brandeis

By Emma Tiner
Emma Tiner, a 2018 summa cum laude graduate of Albany Law School, served as Editor-in-Chief of the Albany Law Review.  Prior to law school, Emma received her BS in communications, summa cum laude, at SUNY Cobleskill. She is currently clerking with Judge Richard K. Eaton at the United States Court of International Trade for the 2018-2020 term.

“That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected.”  These words, attributed to Justice James McReynolds in his opinion for the Court in the case Meyer v. Nebraska, laid the groundwork for protections that would have far-reaching effects in Supreme Court jurisprudence. In both Meyer and Pierce v. Society of Sisters,  McReynolds assisted in establishing important protections beyond the vagaries of the Fourteenth Amendment, identifying crucial rights that existed independent of specific Constitutional language.  These protections contributed to the evolution of the body of law known as substantive due process.

Yet, despite these two landmarks—discussed in more detail below—James Clark McReynolds is not remembered for this vigorous application of Constitutional protections. Instead, he is remembered for his unwavering vitriol and bigotry against those who differed from him—and against one justice in particular. Louis Brandeis shared the entirety of his time on the Court with James McReynolds. But he, not McReynolds, would be classed as one of the “greats.”  Although both justices were appointed by President Woodrow Wilson, an enmity existed between them because of Brandeis’ Judaism.  The conflict between these two justices—one glorious, one infamous—illustrates the contribution that a judge’s personal reputation makes to the legacy and legitimacy of the Supreme Court.
To read the paper, open HERE.