The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work


When, after his retirement from the Supreme Court, Justice Brandeis was asked whether he was writing his memoirs, he gave a characteristic answer. "I think you will find," he said, "that my memoirs have already been written." And so, surely, they had been; for in a life whose impulsion was the duty of public persuasion the record is as open, in the main, as a book. Such a life is measured out in words: not words that are recollections in tranquillity, not inert counters with which to symbolize experience, but words that are the actual signs of living encounters, fragments of fleece, in Holmes' phrase, left on the hedges of life.

The words gathered in this volume are the record of a powerful mind in the act of thinking and persuading. To call them fragments is in a sense misleading, since they are in every case a rounded and completed expression prepared for delivery as a judicial opinion. Why the opinions were nevertheless undelivered is itself not the least absorbing feature of their presentation and analysis here.

The opinions have, in fact, a threefold interest. They are intrinsically important as expositions, now patient, now percussive, of major themes which recur in other forms in the body of Justice Brandeis' judicial work. When they are examined, moreover, in the context of the working papers which underlay them, they reveal to a rare degree the creative process of judicial judgment. And finally, when the events surrounding their preparation and withholding are reconstructed, they throw fresh light on the processes of collective decision-making in our highest Court.

This very catalogue of values may raise in some minds a question of the propriety of the present enterprise. There will be no doubt, to be sure, on the first count -- that it is right to enlarge the body of published writings of one of the most influential figures of the century, provided the new accretions are not second-rate, as they assuredly are not. If the trunks and scrapbooks of an Emily Dickinson or an A. E. Housman are ransacked for fugitive pieces, shall the carefully wrought and preserved handiwork of a preëminent judicial craftsman be kept shut off from view?

It is not likely, either, that objection will be taken to the glimpses of . . .

Additional information

Publisher: Place of publication:
  • Cambridge
Publication year:
  • 1957


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