Jeffrey Rosen: Brandeis’s Seat, Kagan’s Responsibility





[Jeffrey Rosen, a law professor at George Washington University and the legal affairs editor of The New Republic, is writing a book about Louis D. Brandeis.]

IN her Supreme Court confirmation hearings last week, Elena Kagan cited Justice Oliver Wendell Holmes, Jr. as her model of judicial restraint in response to questions from Republican senators who want the court to overturn health care, campaign finance and economic regulations.

Ms. Kagan picked the wrong justice. Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold. Ms. Kagan would do better to look to the justice whose seat she has been nominated to fill: Louis D. Brandeis. Brandeis, who was succeeded by William O. Douglas and then John Paul Stevens, was not only a great and restrained judge but the most prescient critic of the “curse of bigness” in a time of economic crisis....


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