Louis Brandeis enters these excerpts only as a name invoked by others — twice, in two different arguments, and in neither case as the subject of a biographical account. The sources do not describe his career, his opinions, or his legal philosophy in his own terms. What they supply is the use two guests make of him: one as the occasion for the first Supreme Court confirmation hearings, the other as the author of a metaphor about states.
The 1916 confirmation hearings
In the 2016 episode on the Supreme Court and the presidential election, Ilya Shapiro traces the politicization of the confirmation process and identifies Brandeis as its starting point. The first time there were confirmation hearings for a Supreme Court justice, Shapiro says, was 1916, and that was because the nominee was Jewish — it was anti-Semitism against Louis Brandeis. Before that, hearings were not the practice; Shapiro notes that there were none for years afterward, and that the first nominee to testify at his own confirmation hearing was Byron White, nominated by President Kennedy in 1962, in what Shapiro calls a very short hearing. Ilya Shapiro on the Supreme Court in the Balance (2016)
Shapiro places the Brandeis hearings at the head of a lineage that runs through Robert Bork in the 1980s, when Ted Kennedy attacked Bork on the Senate floor with a speech about “Bork’s America.” What Shapiro calls the poisoned, very politicized, nasty, brutal, long slog of a modern confirmation is, on his account, less than thirty years old. He does not blame the political actors, attributing the state of affairs instead to what he calls constitutional corruption — a deviation of constitutional law from the actual Constitution that leads politicians to examine judicial candidates as though for political office. Ilya Shapiro on the Supreme Court in the Balance (2016)
The Brandeis reference functions in Shapiro’s argument as a date and a cause, not as a case study. The excerpt states that the hearings occurred and that anti-Semitism was the reason; it does not say what happened at them, what was alleged, or how Brandeis was confirmed.
Laboratories of experimentation
The second appearance is in the 2022 episode with Jeffrey Sutton, where Brandeis supplies the governing metaphor. Bob Zadek, addressing Sutton, refers to “Brandeis’s words” and paraphrases them as laboratories of constitutional experimentation, asking why it matters to restore state political institutions to their original role. Who Decides? (2022)
Sutton takes up the phrase and attributes it directly: the Justice on the U.S. Supreme Court who came up with the best metaphor for talking about American federalism was a progressive, Justice Brandeis. Sutton stresses that the point is neither political nor partisan, and cites Brandeis’s progressivism as proof of its neutrality. He then restates the insight: when a new social problem arises — data privacy, opioids, features of the pandemic — no one at the outset knows the right answer, so a brave state can try an experiment, and if it works other states can adopt it or variations on it. The accompanying insight Sutton draws out is that when the answer to a difficult problem is uncertain, one does not want to experiment on 330 million Americans and 51 jurisdictions at once; better to try one state, where success is great and failure carries lower stakes. Who Decides? (2022)
Sutton describes Brandeis as referring to state legislatures as the experimenters-in-chief, and characterizes this as ground-up development of legislative ideas: if something works, we nationalize it through Congress. His argument is that this traditional method for legislation should be extended to the identification of new constitutional rights, which for the last sixty or seventy years have more often been recognized top-down, through a race to the United States Supreme Court for a winner-take-all victory for the whole country. He proposes letting state courts be the first responders under their state constitutions, noting that no individual right guaranteed in the federal constitution did not originate in the state constitutions, which came first after 1776 and preceded the summer of 1787 in Philadelphia. Who Decides? (2022)
Sutton adds a qualification he also ties to Brandeis’s insight: sometimes it is appropriate not to nationalize either legislation or a constitutional ruling, because a problem may defy one simple solution or one overwhelmingly correct solution, and permitting variety in constitutional protection suits a diverse and large country with different cultures, sometimes reflecting whether a state is urban, rural, or more suburban. Who Decides? (2022)
Across episodes
The two episodes do not argue the same question about Brandeis, and the excerpts show no development in his treatment. The 2016 episode uses him as a date and a cause in the history of confirmation hearings; the 2022 episode uses him as the source of a metaphor about state experimentation. The earlier treatment is Ilya Shapiro’s, the later one Jeffrey Sutton’s, and neither guest responds to the other’s use of Brandeis. What the two share is only that both speakers treat Brandeis as a progressive — Shapiro by way of the anti-Semitism directed at him, Sutton by explicit label — and neither excerpt elaborates on that characterization.
What the sources do not cover
The excerpts contain no biography of Brandeis: no birth or death, no state or city of origin, no account of his career before or on the Court, and no discussion of any opinion he wrote. They name no case in which he participated and no statute or amendment associated with him. The only facts the sources state about him are that he was Jewish, that his 1916 nomination produced the first confirmation hearings for a Supreme Court justice, that he was a progressive, and that he described states as laboratories of experimentation. Everything else in these two discussions belongs to Shapiro’s and Sutton’s own arguments.