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.
Jeffrey RosenHe [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.
Jeffrey Rosen[Louis] Brandeis is often painted as an acolyte of judicial restraint, or the view that judges should uphold laws whether or not they like them.
Jeffrey RosenWhenever I felt tempted to, I donโt know, watch cat videos or bad Netflix TV instead of writing this Brandeis biography, I thought of his stern but kindly visage and buckled down and wrote the damn thing, because thereโs so much information out there, and these are such anxious times in democracy, such unreasonable times.
Jeffrey RosenFor [Louis] Brandeis, you know, ethnicity and background are much less important than facts and reason. And he believes that far from wanting to efface our diversity of perspectives, we have to embrace it because that makes us more American, not less. In that sense, he's incredibly modern in an age of cultural pluralism. And it is disappointing for just the reasons you say that not everyone has embraced his pluralistic vision.
Jeffrey RosenDo you think Bernie Sanders, for example, is citing Theodore Roosevelt as the progenitor of his critique of the banks when actually Roosevelt wanted to keep the banks together and regulate them.
Jeffrey RosenIt can sound trite if you just say citizens need to be educated for democracy to work, but for him it wasn't trite. It was really this strenuous challenge to citizens to use their moments of leisure, which he defined as time away from work, to collect the facts that were necessary for full democratic participation.
Jeffrey Rosen