When I'm not writing my book, I read as much legal scholarship as possible, particularly race & the law work. I decided to check out Christopher A. Bracey and read his article entitled Louis Brandeis and the Race Question (cite: 52 Ala. L. Rev. 860). His basic thesis, as I see it, is that Brandeis is heralded as "The People's Lawyer" because he fit the image of the lawyer who protected the little guy from corporations and powerful interests generally. Yet, Justice Brandeis who served on the Supreme Court from 1916-1939, and was an attorney before then, never protected the group of people who most were subordinated, blacks. This, however, does not alter his reputation.
While on the Court, Brandeis voted with the majority on every race case the Court decided. (The Court's decisions during that time were mixed and "seperate but equal" remained largely intact when he left the Court.) Moreover, he authored no opinions on any of those race cases. This is a shame. His opinions on free speech and privacy rights are brilliant. He surely could have redefined the law to promote the fairness, dignity and equality for black Americans while on the bench.
I'm not sure why Brandeis never discussed race. But I agree with Bracey's conclusion that his disinterest in the race question should be part of his legacy.
Generally though, I'm troubled how easily Americans can develop these great legacies when they have such troubling pasts on race. The Founding Fathers, for instance, are routinely deified. I can't count how many times I have heard of, say, George Washington being brought up in conversations wherein the speaker muses what the great general is thinking about a particular occurrence while he is in heaven. Maybe it's just me, but I don't think slave owners get to go to heaven.
Anyhow, I think it's telling how easily a person's racial/racist past is forgotten or left out of the story. It is further proof of how little black concerns and issues are defined as noteworthy or truly American.
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