Curious Concurrence: Justice Brandeis' Vote in Whitney v. California

43 Pages Posted: 23 Feb 2007 Last revised: 20 Jul 2011

David Skover

Seattle University School of Law

Ronald K. L. Collins

University of Washington - School of Law

Abstract

A piece of jurisprudential sleuthing, this article uncovers the back story for a puzzle unanswered by legal historians for some eighty years: Why would the free-speech libertarian Louis Brandeis write the most famous paean to First Amendment normative values in his opinion in Whitney v. United States, and yet join (by way of a concurring opinion) the judgment of the majority of the Court that would have sent the "patrician radical" Anita Whitney to prison for a 14-year term solely for participating in the formation of the California Communist Labor Party? Part of the puzzle is provided by the unpublished Brandeis opinion in Rutherford v. Michigan, which is provided as an appendix to the article. This work was publicly recognized for its excellence in the Legal History Blog.

Keywords: Whitney, Brandeis, criminal syndicalism, First Amendment, war, Sedition Act, Ruthenberg

Suggested Citation

Skover, David and Collins, Ronald K. L., Curious Concurrence: Justice Brandeis' Vote in Whitney v. California. Supreme Court Review, p. 333, 2006; Seattle University School of Law Research Paper No. 09-03. Available at SSRN: https://ssrn.com/abstract=964694

David Skover (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

Ronald K. L. Collins

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Paper statistics

Downloads
256
Rank
96,697
Abstract Views
1,944