I don't think he would have had any trouble answering Justice Sonia Sotomayor's excellent challenge in a case involving GPS surveillance. She said we need an alternative to this whole way of thinking about the privacy now which says that when you give data to a third party, you have no expectations of privacy. And [Louis] Brandeis would have said nonsense, of course you have expectations of privacy because it's intellectual privacy that has to be protected. That's my attempt to channel him on some of those privacy questions.

William Howard Taft, who he embarrassed in these congressional hearings, attacks him as an emotionalist and a socialist and a cosmopolitan in terms that kind of have an anti-Semitic overtone. And even the pro-Brandeis press supported him in terms that really seem creepy today. There's this piece from Life magazine. It says, "Mr. Brandeis is a Jew. And until now there's never been a Jew on the Supreme Court. Perhaps it's time we have one."

He [Louis Brandeis] would have not had any patience with that great debate which you're right to kind of signal between Justice Scalia and Justice Alito about do you need a physical trespass into the home or onto the carriage in order to trigger the values of the Fourth Amendment.

It's unfortunate that [Louis] Brandeis was not able to translate or abstract his devotion to cultural pluralism and racial equality as he put it for Jews to enslave people and their descendants and to African Americans.

I think the answer has to do with the fact that [Louis D.] Brandeis was a consistent critic of bigness in business and in government.

Initially the papers said that the fact that Louis Brandeis was picked because he was Jewish. The New York Sun said he's the first Jew ever picked for the bench - a long and bitter fight expected in the Senate over confirmation.

I was very much influenced by a great book by the scholar Neil Richards called Intellectual Privacy, that [Louis] Brandeis changed his mind on the proper balance between dignity and free speech.